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Regular Second Appeal No.346 of 1982, decided on 7th April, 1984.

---S.100 & O.VII, R.11--Court Fees Act (VII of 1870), S.7 Punjab Pre-emption Act (I of 1913), S.15--Second appeal--Deficiency in court-fee payable on pre-emption suit filed by appellant pointed out for first time by Appellate Court on ground that a part of land was garden land---Judgment of Trial Court decreeing suit reversed by Appellate Court on question of deficient court-fee and no time allowed to appellant for making good deficiency although deficiency worked out by Appellate Court in a contentious situation in appeal--Appellant, held, could not be burdened with any negligence or contumacy- Appellant according to his own thinking paying up proper court-fee under S.7(v)(a) of Court Fees Act, 1870 was entitled to be given time for making up deficiency if any pointed out for first time by Appellate Court on account of existence of a garden in a part of land--Judgment and decree of Appellate Court set aside and suit of appellant decreed in circumstances--Case remanded to Trial Court for limited purpose of calculation of court-fee and for allowing time to pay up same.

Shahna Khan v. Aulia Khan P L D 1984 S C 157; Mst. Parveen v. Mst.Jamsheda Begum P L D 1983 S C 227 and Mst. Walayat Khatoon v. Khalil Khan P L D 1979 S C 821 ref.

Mst.Walayat Khatoon v. Khalid Khan PLD 1979 SC 821; Muhammad Nawaz Khan v. Mukhdoom Syed Ghulam Mujtaba Shah P L D 1970 S C 37 and Shah Nawaz's case 1972 S C M R 179 rel.

Ch.Hafeez Ahmad for Appellant.

Shehzad Jehangir for Respondents.

Date of hearing: 7th April, 1984.

This Regular Second Appeal is directed against the judgment and decree dated 22nd November, 1982, whereby the learned Additional District Judge, Gujrat, set aside the decree of the trial Court and dismissed the suit of the appellant for possession through pre-emption.

2. Briefly, the facts of the case are that the respondents purchased land measuring 26 kanals 18 marlas situate in village Manget, Tehsil Phalia, District Gujrat for a sum of Rs.22,000 under a sale dated 27th March, 1967. The appellant instituted a pre-emption suit on 25th March, 1968, on the ground that he being a legal heir, collateral and a co-sharer of the vendor had a superior right. The defendants contested the suit on a number of grounds, inter alia that the suit was for partial pre-emption, it was not correctly valued and was thus barred by time.

3. The trial Court framed as many as 10 issues and later decreed the suit on 23rd October, 1979, on payment of Rs.22,000. The respondents went up in appeal which was dismissed by the learned Additional District Judge on 9th March, 1980. Aggrieved by that order the respondents-vendees-filed RSA 242 of 1980. It was allowed and the case remanded for a fresh decision. It was at that stage that the learned Additional District Judge passed the impugned judgment reversing the finding of the trial Court on issue No.1 (relating to court-fee) and issue No.7 (time limitation).

4. The case of the respondents before the trial Court was that the suit was to be valued under section 7(v)(b) of the Court Fees Act i.e. five times the revenue payable. If that plea was to be accepted the valuation made and the court-fee paid by the plaintiff appellant was more than it should have been there and, therefore, the trial Court observed that no plaint can be dismissed if the plaintiff had paid court-fee more than what was required.

5. It is to be noted that the plaintiff had valued the suit under section 7(v)(a) of the Court Fees Act i.e. at ten times of the revenue payable. The lower appellate Court considered the contentions of the two parties and came to the conclusion that section 7(v)(a) of the Court Fees Act applied to the case as the land in dispute is a part of the estate and is assessed to land revenue which is permanently settled.

6. The learned Additional District Judge in the impugned order has noted that according to the entries relating to Kharif 1965 to Rabi 1968, there was a garden in Khasra Nos.5341,5342,7221/5345 and 7222/5345. According to him clauses (a) and (c) of section 7(v) applied to the case and that the valuation in respect of the garden land was to be fixed on the basis of its market value. While settling valuation under section 7(v)(a) he worked it out from the Fard Jamabandi Ex.P.2 at Rs.22.12x10=Rs.221.20 with the fee payable as Rs.16.59. It may also be observed that the respondents never raised the objection that a part of the land was garden land.

7. The plaintiff-appellant had paid a sum of Rs.15 as Court-fee. According to the learned Additional District Judge it fell short of Rs.1.59 apart from the fact that a part of the land was also not assessed on the basis of market value as observed above. He also pointed out an omission on the part of the plaintiff-appellant that he had not applied under sections 148 & 149, C.P.C. for permission to make up deficient court-fee. He, therefore, refused to call upon him to pay the remaining court-fee as no attempt had been made by him in the lower Court.

8. It is contended by the learned counsel for the appellant on the basis of the law laid down by the Supreme Court in Shahna Khan v. Aulia Khan, P L D 1984 S C 157 (163) and Mst.Parveen v. Mst.Jamsheda Begum P L D 1983 S C 227 (230) that there being no deliberate negligence or wilful delay on the part of the appellant and the deficiency of Rs.1.59 having been worked out by the learned Additional District Judge, in a contentious situation in appeal, time should have been allowed to the appellant to make up the deficient court-fee, if any.

9. The learned counsel for the respondents relied on Mst.Walayat Khatoon v. Khalil Khan, P L D 1979 S C 821 to contest this appeal. According to him it was the duty of the appellant to have correctly worked out the court-fee and to have paid the same within time to enable him to press a predatory right as it is so held by the superior Courts. His case was that the circumstances of the case did not justify that the appellant was allowed more time to make up the deficient court-fee.

10. After hearing the learned counsel for the parties, I find much force in the contention raised by the learned counsel for the appellant. It was not a case where the appellant could have been burdened with any negligence or contumacy. He, according to his own thinking, paid the proper court-fee under section 7(v)(a) of the Court Fees Act. In fact he had paid much more if the argument of the respondents had been accepted by the trial Court. Even the lower appellate Court in the first instance had not found any error.

11. The Supreme Court in the case of Shahna (Supra) has considered the case of Mst.Walayat Khatoon (Supra) and Muhammad Nawaz Khan v. Mukhdoom Syed Ghulam Mujtaba Shah, P L D 1970 SC 37 and reproduced from the latter case the following observations:-

"Apart from these weighty judgments it would, indeed, be anomalous if limitation is not saved in cases in which law requires the Court to allow the plaintiff to correct the valuation of the relief claimed in the suit which must necessarily entail making up deficiency in the stamp paper affixed on the plaint, but time should automatically be enlarged in cases in which the Court has the discretion to grant time to pay the whole or part of the court-fee prescribed. This will offend against the rule of harmonious construction. The provisions of Order VII, rule 11 and section 149 are, therefore, to be read together. Consequently where the plaintiff is required to correct the valuation of the relief claimed in the suit, he shall further be required to supply the requisite stamp paper and on compliance it shall have the same force and effect as if such fee had been paid in the first instance."

It was followed in the case of Shah Nawaz, 1972 S C M R 179.

The case of the appellant is similar to that of Muhammad Nawaz Khan (Supra) a portion of which has been reproduced above. It was for the first time that the learned Additional District Judge found that there was a deficiency of Rs.1.59 in the court-fee. Further, it was he who noticed that there was a garden in a part of the land. The appellants on the other hand, paid more court-fee than what the respondents thought he should have done. There was, therefore, no delay 'or negligence, on his part. In the circumstances the appellant was entitled to be given time to make up the deficiency, if any. In this view of the matter the judgment and decree of the lower appellate Court are reversed and the suit of the appellant is decreed. The case, however, will, go back to the trial Court for a limited purpose to recalculate the court-fee keeping in view the observations of the learned Additional District Judge and allow the appellant one month's time to pay up the same. The parties shall bear their own costs.

M. Y. H./3292/L. Appeal accepted.

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