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Regular Second Appeal No. 867 of 1969, decided on 13th December, 1986.

‑‑‑O. VII, R. 11‑‑Punjab Pre‑emption Act (I of 1913) S. 15‑‑Deficiency in court fee‑‑Appellants, who failed to pay requisite court fee within time allowed by Court, stating that they purchased stamp paper and completed same within time but could not present in Court due to riots on relevant day and due to killing of a relative of Clerk of his counsel who had to present paper in Court‑‑Story of riots and killing of a relative of clerk of appellant's counsel emerging absolutely wrong and concocted in view of factual position‑‑Court which decided first appeal made it quite clear that there were no riots and this was not only his own observation but also agreed admission of counsel of both parties‑ Allegations of appellants, that fact relating to purchase of stamp paper was brought to notice of trial Court or that there was a request for extension of time, not believable‑‑Appellants had been allowed time for getting statement of profits prepared and when it was prepared they were specifically allowed time to make good deficiency in court‑fee which they failed to do within time allowed‑‑Appellants made no written request for extension of time which was to be allowed only on cogent grounds considered sufficient by Court and not otherwise‑‑Held, since appellants, concocted a false story in respect of their contumacious and negligent lapse, they were not entitled to extension of time and their plaint was rightly rejected by Courts below for not making up deficiency in court‑fee in time.

‑‑‑S. 59‑‑ Question of fact‑‑Proof‑‑Question of fact, held, was to be proved as a question of fact and status of a witness how highsoever he might be, would not become privileged because of lower status of opposite party.‑‑[Witness].

‑‑‑S. 114, illus. (e)‑‑Question of fact‑‑Proof‑‑Evidence of Advocate‑ Evidence of an Advocate to prove question of fact to be weighed and adjudged as evidence of any other person and there was no privileged sanctity attached to affidavit of Advocate especially when same was refuted by a like affidavit by opposite party and falsified by observation of Court concerned.‑‑[Witness].

---‑S‑5. 114, illus. (e)‑‑Where a fact or ground was not noted in judgment of a Court, it would, held, be taken that same was given up or not pressed.

Ghulam Muhammad v. Malik Abdul Qadir Khan P L D 1983 S C 68 ref.

‑‑‑S. 15‑‑Civil Procedure Code (V of 1908), O. VII, R. 11‑‑Right of pre‑emption‑‑ Deficiency in court‑fee‑‑Right of pre‑emption no more a weak, a practical or a predatory right and has to be adjudicated upon just in same manner as in case with any other legal right‑‑One opportunity for making good deficiency in court‑fee must be given and making good deficiency in court‑fee beyond period of one year of limitation prescribed for filing a suit for pre‑emption would not make any difference and could not result in dismissal of such a suit as time‑barred and for that matter time for making good deficiency in court‑fee cannot be refused on ground that when same was made good, suit had become time‑barred‑‑In presence of a contumacious or negligent non‑compliance of an order of Court right of pre‑emption could be defeated in same manner as any other legal right could be defeated.

Siddique Khan and 2 others v. Abdul Shakoor Khan and another PLD 1984 S C 289 ref.

M.R. Chughtai for Appellant No. 1.

Ch. A. Waheed Saleem for Respondents.

Date of hearing: 15th October, 1986.

The land in suit measuring 53 Kanals and 7 Marlas situated in village Kalowal, Tehsil Shorkot, District Jhang was sold by Nawab through Mutation No. 508, dated 8‑12‑1967 in favour of the respondents.

A suit for possession through pre‑emption of the same was filed by the appellants on 28‑i1‑1968 alleging that their right of pre‑emption was superior as they were collaterals of the vendors, co‑sharers in the land and owners in the estate. The land was sold for an ostensible price of Rs.19, 000 but the pre‑emptors alleged that Rs.72 were in fact paid as price of the land. The suit was valued by them at Rs.75 on the basis of 15 times the net profits. When the plaint was scrutinised it was found that the statement of net profits had to be got prepared by the appellants for the valuation and for the payment of proper court fee. On 29‑11‑1968 summons to the respondents/ defendants were ordered to be issued for 9‑1‑1969 alongwith an order that 1/5th of pre‑emption money may be paid before the said date. The appellants put in an application for getting the statement of net profits prepared on 2‑12‑19 8 and, after payment of the requisite fee therefor, an order was issued to the concerned revenue officials to prepare and send the said statement before 9‑1‑1969. However, the said statement, which was prepared on 27‑12‑1968, was received after that date but much before 24‑2‑1969, the date to which the case was adjourned on 9‑1‑1969 for resummoning the respondents. When the case was taken up on 24‑2‑1969 it was, on the basis of the said statement of net profits, found that a deficiency of Rs.76.51 in court fee had to be made up. The appellants were, therefore, given an opportunity, according to law, to make good the said deficiency in court fee before 1‑4‑1969. When the case came up for hearing on 1‑4‑1969 it was found that the said deficiency had not been made good. No application, oral or written was made for further extension of time and the plaint was consequently rejected by the learned Administrative Civil Judge, Jhang under Order VII, Rule 11, C.P.C. vide order dated 1‑4‑1969. An appeal was filed which was dismissed by the learned Additional District Judge, Jhang vide order dated 31‑7‑1969. This regular second appeal was filed against the said appellate order. I have perused the record and have heard the arguments advanced by both learned counsel for the parties.

2. The said first appeal was filed on 10‑5‑1969 and it was alleged therein that the appellants had paid Rs. 76.51 to the Clerk of their counsel to purchase the requisite stamp paper for making good the deficiency in court‑fee and that the stamp paper was actually purchased on 27‑9‑1969 and after completing the written formalities thereon it was retained for filing in the Court but on that date a relative of the said Clerk died during Shia‑Sunni disturbances and the requisite court‑fee could not be filed in the Court within time. It was further alleged that when the case was taken up by the learned trial Court on 1‑4‑1969 the appellants and their counsel assured the learned trial Court that stamp paper had been purchased and the requisite writing thereon had been completed and, therefore, time for extension of the court‑fee may be extended but the Court wrongfully did not take the request into consideration. Alongwith the appeal an affidavit of Muhammad Saeed Akhtar Subhani, Clerk of the counsel for the appellants was also filed. The facts alleged in the memorandum of appeal were repeated therein. Learned counsel for the appellants before the learned lower Court was Mehr Muhammad Kabir Khan, Advocate and he remained their counsel in the First Appellate Court. He filed his own affidavit on 31‑7‑1969, the date on which the first appeal was to be decided, and after repeating the said facts he added that he had completed the papers relating to the making up of deficiency in court‑fee on 27‑3‑1969. A counter affidavit was filed by Sher Behadur, Guardian ad litem of respondent No.2 on the same date, i.e. 31‑7‑1969, controverting all the allegations of the appellants and further alleging that there was no Shia‑Sunni agitation on 27‑3‑1969 and that no relative of Muhammad Saeed Akhtar Subhani, clerk of learned counsel for the appellants was killed in the same which took place a day earlier. The learned First Appellate Court heard the parties at length and came to the conclusion that the allegations made by the appellants were false. It is significant to mention that before the learned First Appellate Court the learned counsel for both the parties admitted that no Shia‑Sunni riots took place on 27‑3‑1969 and that the same in fact took place on 26‑3‑1969 and it was, therefore, held that the affidavit of Muhammad Saeed Akhtar Subhani was "on the face of it incorrect". It may be pertinent to mention here that no death certificate of any such relative of Muhammad Saeed Akhtar Subhani was filed at any stage. The learned counsel for the appellants, in the two Courts below, also filed an affidavit dated 22‑9‑1969 before this Court making a small improvement that although the stamp paper was purchased and completed on 27‑3‑1969 the same could not be presented before the learned trial Court due to unavoidable circumstances. In the said affidavit the valuation of the stamp paper was wrongly mentioned as Rs.75 although the deficiency required to be made up was Rs.76.51 and in fact the alleged stamp paper for making good the deficiency, which was placed on the record of the First Appellate Court, was of the value of Rs. 75.50.

3. The question of fact relating to the purchase of the stamp paper within time and the cause on account of which the same could not allegedly be filed are of prime importance. I have mentioned above that the learned additional District Judge who decided the appeal made it clear in his judgment dated 31‑7‑1969 that there were no Shia‑Sunni riots in Jhang on 27‑3‑1969 and this too was not only his own observation but was also the agreed admission of the learned counsel for both the parties. Therefore, the story that the riots took place on 27‑3‑1969 is absolutely false. The case of the appellants is built up on that story and, therefore, the story not only about the riots but also in regard to the killing of a relative of Muhammad Saeed Akhtar Subhani the Clerk of the counsel for the appellants on that day is a mere concoction and as such the said story has no legs to stand upon. Apart from that if there were riots on 27‑3‑1969 the stamp paper itself could not be purchased on that date; but when it had been purchased and the requisite writing thereon completed and the same had been signed, there was absolutely no reason that the same could not be filed in the learned trial Court on that very day. Even if the relative of the clerk had been killed on that day the learned counsel for the appellants himself would have taken the stamp paper and would have filed the same in the Court on that very day or at the most on the next day or even till up to 31‑7‑1969, the last date for making good the deficiency in the court‑fee. This was not done merely because the allegations made by the appellants in the grounds of the appeal before the learned First Appellate Court are absolutely false. Again, it is difficult to believe the allegation of the appellants that the fact relating to the purchase of the stamp paper on 27‑3‑1969 was brought to the notice of the learned trial Court, or that there was a request for extension of time. If it had been done so the learned trial Court would have taken note of it and would have mentioned it in its order dated 1‑4‑1969. Apart from that if the learned counsel for the appellants were to request for extension of time he would have filed written application before the learned trial Court on 1‑4‑1969 as it is known to the lawyers that getting an extension in time is not a matter of course but on the other hand the extension can be granted on cogent grounds which are taken to be sufficient by the Court and not otherwise. Therefore, it is clear the same has to be condoned and that every discretion has to be I exercised in his favour or that every concession has to be allowed to l him. In the present case the appellants had been allowed time for getting the statement of net profits prepared and when it was prepared they were specifically allowed time vide order, dated 24‑2‑1969 to make good the deficiency in court‑fee upto 31‑3‑1969. They did not pay it, they did not make any request or application for extension of time and they concocted a false story before the learned First Appellate Court in respect of their said contumacious and at least negligent lapse. Accordingly, they were not entitled to extension of time and their request was rightly refused by the learned First Appellate Court.

7. In view of the above discussion, the appellants have no case at all. The appeal is dismissed. However, in view of the decision on law) points the parties shall bear their own costs.

M. Y. H. /686/L Appeal dismissed.

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