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-- S. 149 & O. VII, R. 11-Court Fees Act (VII of 1870), Ss. 6 & 10-Rejection of plaint for non-payment of court-fee-Requirement-Liability of a suit to be taken off, held, could follow only upon failure of plaintiff to supply requisite stamp paper on requisition from Court, to pay same within specified time-Where Court comes to conclusion that a plaint was to be properly stamped, proper course would be an order under S. 10, Court Fees Act, to direct payment of requisite court-fee-Such order could also be passed by Trial Court under S. 6, Court Fees Act in conjunction with S. 149 of Civil Procedure Code, 1908.

Siddique Khan and 2 others v. Abdul Shakur Khan and another P L D 1984 S C 289 and Rachappa Subrao Jadhar Desai v. Shidappa Subrao Jadhav Desai A I R 1918 P C 188 rel.

-- S. 30-Limitation Act (IX of 1908), Arts. 10 & 120-Suit for preemption-Limitation-Limitation for filing of suit to enforce right of pre-emption is contained in Art. 10 of Limitation Act- Cases which do not fall under Art. 10, Limitation Act, 1908, held, would fall under Art. 120 of the Act which is a residuary provision-Provisions of S. 30 of Punjab Pre-emption Act, 1913, was enacted as a provision supplementing those of Art. 10 of Limitation Act, 1908.

-- S. 30-Limitation on basis of possession-Objection to-Provisions of Art. 10 of Limitation Act, is the primary provision to apply in pre-emption suit-In cases where Art. 10 Limitation Act, 1908 was not applicable, limitation for a pre-emption suit would be governed by Art. 120 of Limitation Act, 1908-Provision of S. 30, Punjab Pre-emption Act is in the nature of an exception to Art. 120 of Limitation Act, 1908-Application of Art. 120, Limitation Act, 1908 would therefore stand curtailed by S. 30 of Punjab Pre-emption Act, 1913-For sustaining objection about limitation on basis of possession, essential requisites would be one of physical possession and the other of such possession being under the sale'.

-- S. 30-Physical possession-Fractional share of joint property whether capable of physical possession-Fractional share of joint property, held, was incapable of physical possession.

Wali Muhammad v. Dost Muhammad and another 1986 C L C 1220 rel.

-- S. 30-Limitation Act (IX of 1908), Art. 10 - Suit for preemption - Limitation, determination of - Provision of S. 30, Punjab Pre-emption Act provides limitation to run from date of attestation of mutation or from the date of taking by vendee of physical possession under the sale of any part of property sold, whichever date is earlier-In case of oral sale wherein land was incapable of physical possession, though such sale was confirmed by a civil Court, decree would not fall under S. 30, Punjab Pre-emption Act - Suit for pre-emption against an oral sale of such land as was incapable of physical possession though confirmed by civil Court decree, would not fall under S. 30 of Act and would be governed by Art. 120 of Limitation Act and such suit could be filed within six years from the date "the right to sue accrued" to pre-emptor.

-- S. 15-Court Fees Act (VII of 1870), Ss. 6 & 28-Payment of proper court-fee, a pre-condition for trial of a suit-Payment of proper court-fee, held, was a pre-condition to be fulfilled by a plaintiff for having his suit tried-Court was required to hold up decision of a suit until after requisite court-fee was paid-Where court-fee was not paid despite opportunity provided in accordance with law for its payment and suit was perforce to be dismissed on account of default, even then obligation to direct that court-fee was to be recovered from defaulting party still remained-Practice of Courts whereby suits for default in payment of court-fee were dismissed without direction to recovery of court-fee depreciated by High Court.

-- S. 15-Court Fees Act (VII of 1870), Ss. 6 & 28-Non-payment of court-fee-Recovery of-High Court in exercise of powers under S. 28 of Court Fees Act directed Collector immediately to recover court-fee from defaulting parties, whose causes though decided by Courts were still liable to pay requisite court-fee.

-- S. 115-Punjab Pre-emption Act (I of 1913), S. 30-Revisional jurisdiction, exercise of-Where conclusions arrived by Appellate Court were correct in spite of matter having been treated from a different angle which High Court did not find either complete or quite correct, High Court declined to upset such findings in revisional jurisdiction.

Zulffqar All Bhatti for Appellant.

Respondents Nos. 1 and 2 filed a suit on 1-3-1979, for possession through pre-emption, with regard to 118 Kanals 17 Marlas of land, being the 41/192nd share of a joint Khata of 532 Kanals 3 Marlas, situated in village Attra South, Tehsil Khushab ; on the ground of their being the collaterals of the vendors and also co-sharers in the land in suit. Vendee-defendants, the petitioners herein, contested the suit by denying their claim and raising the pleas also of limitation and incorrect valuation of the suit, which had been mentioned in the plaint as Rs. 3,000 (on the basis of net-profits of Rs. 200 stated to have accrued during the one year immediately preceding the presentation of the plaint) to claim exemption from the payment of court-fee and none was paid thereon. Necessary issues were settled and evidence was led. The Civil Judge decreed the suit on 17-5-1980 by deciding all the issues in favour of the plaintiffs. An appeal there against filed by the vendees was, however, accepted by the learned District Judge by remanding the suit on 22-6-1983. Consequent thereto, learned Civil Judge again decided the suit on 3-10-1983 and, though he decided the remaining issues in favour of the plaintiffs by holding that they are co-sharers in the suit land and the vendee-defendants are strangers, yet, he dismissed their suit with the findings adverse to them recorded under the first two issues relating to the valuation and limitation. He held that according to the statement of net-profits, Rs. 2, 536.48 was the correct amount and there could not be any reason for deduction therefrom of Rs. 1,268.24 as the tenant's share because the land had remained under self-cultivation and the correct figure to be reached was the 15 times of the entire profits, which far exceeded the limit of exemption. As regards the question of limitation, he found that the land was under cultivation of the vendees in Rabi 1978 which would have been sown somewhere in the months of September-October 1977 and hence, the suit instituted on 1-3-1979, was barred by time under Article 10 of the Limitation Act.

2. An appeal there against filed by the said plaintiffs has been accepted by Mr. Abdul Ghaffar Khan, learned Additional District Judge, Khushab on 24-10-1984 to reverse the findings of the trial Court on both the issues and, setting its decree aside, he decreed their suit. The dispute about the

valuation of the suit was disposed of by him with reference to his order passed on 10-10-1984 whereby he had accepted the application filed. as under protest, by the plaintiff-appellants before him to be permitted to pay the court-fee worth Rs. 2,853.54 on the appeal, on the basis of the valuation assessed by the trial Court. who, however, had not provided them an opportunity to pay the requisite court-fee on their plaint. With reference to the said order, the learned Additional District Judge observed that neither of the parties had advanced arguments there about and they were unanimous that the question of limitation alone had to be considered by him. Then he took up the issue about limitation and the sale in suit having been made by means of a consent decree passed by the civil Court on 5-3-1978, he observed that the vendees had not produced any documentary evidence to prove that the sale may have taken place at any time earlier than 5-3-1978, therefore, he concluded that the possession of the vendees, admitted by the witness of the plaintiffs to be held by the vendees as tenants in the previous crops, could not be regarded to be proved to have been taken by them under the sale. Learned Additional District Judge considered the suit to be within time from the date of decree (5-3-1978) and accordingly reversed the trial Court's findings about limitation. Vendees have now come up to this Court on revision.

3. Learned counsel has argued that despite the liability of the plaint to bear the court-fee of the value of Rs. 2,853.54 on a correct valuation, the plaintiffs acted dishonestly in not paying any court-fee on the plaint on account of an incorrect representation made to the effect that the valuation bad to be worked out on only the half of the net-profits and that the figure thus reached would be exempt from liability of payment of court-fee. On this premises learned counsel maintains that the suit of the respondent had been rightly dismissed by the trial Court and did not deserve to be decreed in their appeal. There is no merit in this contention. I have already upheld the appellate Court's order dated 10-10-1984, relating to the question of court-fee, in Civil Revision No. 1662 of 1984. It is noticed also that learned trial Judge had not provided opportunity to the plaintiffs to pay the deficient court-fee in accordance with his findings, ultimately upheld. Such was the requirement of clause (c) of rule 1 I of Order VII of the C. P. C. and the liability of the suit to be taken off could have followed only upon the failure of the plaintiffs to supply the requisite stamp-paper on a requisition from the Court, to pay it within such time as may have been fixed for the purpose. This course was not adopted by the trial Court who after coming to the conclusion that the plaint was liable to be properly stamped, should have proceeded to pass an order under section 10 of the Court Fees Act, to direct the payment of requisite court-fee. A similar power vested in the trial Court under section 6 of Court Fees Act read with section 149 of the C. P. C. but even this was not adverted to and the straight out dismissal of the suit was clearly wrong. To the above effect are also the views expressed by their Lordships of the Supreme Court in Siddique Khan and 2 others v. Abdul Shakur Khan and another (1). Question of court-fee is a matter between the subject and the State and a litigant cannot be allowed to use it as a weapon of technicality against his opponent, as has been held in Rachappa Subrao Jadhav Desai v. Shidappa Subrao Jadhav Desai (2). Since the dispute relating to court-fee does not involve any question of jurisdiction of the Court nor does it affect the litigation on its merits, which have not been assailed before me by the learned counsel, therefore, by virtue of section 99 of the C. P. C., the decree passed in favour of the respondents cannot be interfered with. Contention of the learned counsel is, hence, repelled.

(1)PLD1984SC289 (2)AIR1918PC188

4. Learned counsel has next argued that the suit of the plaintiffs was barred by time under section 30 of the Punjab Pre-emption Act in so far as it had not been filed within one year of the delivery of possession to the vendees, as had even been admitted by the witness of the plaintiffs. This contention is clearly misconceived in the facts of this case and cannot be sustained. Limitation for filing of suits to enforce the right of pre-emption is contained in Article 10 of the Limitation Act and those cases which do not come under this Article would have fallen to be governed by Article 120 thereof, which is a residuary provision but section 30 of the Punjab Preemption Act, 1913 was enacted as a provision supplementing those of the said Article 10. For facility of reference, the relevant parts of these three provisions, so far as they are in point here, are reproduced as under :

(i) Article 10 of the Limitation Act provides the limitation of one year to run from the date;

"When the purchaser takes, under the sale sought to be impeached, physical possession of the whole of the property sold, or, where the subject of the sale does not admit of physical possession, when the instrument of sale is registered."

(ii) Article 120 of the Limitation Act provides a period of 6 years for a "suit for which no period of limitation is provided elsewhere in this Schedule", to run from the date-

"When the right to sue accrues."

(iii) Section 30 of the Punjab Pre-emption Act lays down :-

"In any case not provided for by Article 10 of the Second Schedule of the Limitation Act, 1908, the period of limitation in a suit to enforce a right of pre-emption under the provisions of this Act, shall, notwithstanding anything in Article 120 of the said Schedule, be one year--

(1) in the case of a sale of agricultural land or of village immovable property, from the date of the attestation (if any) of the sale by a Revenue Officer having jurisdiction in the register of mutations maintained under the Punjab Land Revenue Act, 1887, or from the date on which the vendee takes under the sale physical possession of any part of such land or property, Whichever date shall be the earlier ; "

A conjuncted reading of the above provisions leads to the results as under :--

(a) that Article 10 of the Limitation Act is the primary provision td apply in pre-emption suits ;

(b) that in cases whereto Article 10 may not apply, limitation would be liable to be governed by Article 120 thereof ; and

(c) that the application of Article 120 to such suits for pre-emption stands curtailed by the provisions of section 30 of the Punjab Pre-- emption Act to the extent that a given case may fall thereunder;

because it is a provision in the nature of an exception to Article 120 of the Limitation Act.

The date of taking of possession by the vendee of the property sold is provided to be the sine-qua-non for limitation, both in Article 10 and section 30 which has not merely to be physical' but has also to be under the sale'. The distinction, however, is that whereas under the former provision it has to be 'of the whole of the property sold'; under the later one it may be 'of any part of such property'.

Hence, for the purpose of sustaining the objection about limitation on the basis of possession, whether under one of above provisions or the other, the possession claimed by the defending vendee has to stand two tests, first that it should be physical possession' and, second, that it should be under the sale'.

5. More than one situation can be visualized where a property sold may not be capable of being physically possessed by the vendee. For instance, it may be in the possession of a mortgagee or be in the occupation of a tenant. Another example thereof stands provided by this case wherein the land sold, as mentioned already, is the 41/192nd share, of a joint Khat land measuring 532 Kanals 3 Marlas, amounting to 118 Kanals 17 Marla which cannot be a perceptible entity to become a tangible property and b capable of being physically possessed. I have already considered this point in Wali Muhammad v. Dost Muhammad and another 1986 C L C 1220, wherein a conclusion was reached that such a factional share of a property is incapable of physical possession.

As such, in this case, first part of the third column of Article 10 does not apply and since this is not a case of sale by a registered deed, therefore, even the second part thereof does not get attracted and the case will fall under Article 120, provided its application thereto is not excluded by the provisions of section 30 of the Punjab Pre-emption Act, 1913 which, in relation to cases regarding agricultural land, provides the limitation to run from the date of attestation of mutation or from the date of taking by the vendees of physical possession under the sale of any part of the property sold, whichever date be earlier. Neither of these conditions exists in this case because sale is not made by a mutation and, as has been held above, physical possession could not have been taken and muchless so, under the sale. Hence, this case of oral sale, of such land as is incapable of physical possession, though confirmed by a civil Court's decree, does not fall under section 30 of the Act and, for this reason, it cannot be regarded to have been excluded from the purview of Article 120 of the Limitation Act which, therefore, will continue to govern the suit of the plaintiffs who, thereunder, had six years to file the suit from the date that 'the right to sue accrued' to them. Since no date other than the one of the passing of the consent decree (5-3-1978) has even been suggested as the one on which the sale in suit may have become known to the plaintiffs and it goes without saying that no one can be said to have had a 'right to sue' without his having known it, therefore, there could not be any question of this suit becoming barred by time. Hence, learned Additional District Judge has rightly reversed the trial Court's finding on the point by holding the suit of the plaintiffs to be within time and even though he has viewed the matter from a different angle which, of course. I do not find either complete or quite correct, yet, hi; ultimate conclusion is not wrong and the decree passed by him is correct Contention of the learned counsel fails and is accordingly repelled.

6. However, before parting with this file, it must be observed that it has been frequently noticed that, of late, there has grown a tendency in the Civil Judges to record findings about the issues relating to court-fee in the final judgments to, in the end, dismiss the suits on the ground of their being unstamped or understamped, on the assumption perhaps that the concerned plaintiff may have been adequately punished in his suit having been dismissed, whether on that ground or another. This is not the correct disposal of a suit. Policy of the law is that payment of proper court-fee is a pre-condition to be fulfilled by a plaintiff for having his suit tried and a mere finding adverse to a plaintiff recorded at the end of a trial or even the dismissal of his suit on that score does not achieve the object because, as has been laid down in sections 6 and 28 of the Court Fees Act, in absence of payment of proper court-fee the suit remains incapable of being tried and, still, in such a disposal, a trial in fact takes place. Hence, the concerned Judge has not to remain content merely with the decision of the relevant issue, one way or the other, but has also to enforce it under the provisions referred to above which should be kept in view to hold up the decision of the relevant suit until after the requisite court-fee is paid and where so is not done despite opportunity provided in accordance with law for its payment and the suit has per force to be dismissed on account of default even then the obligation to direct that the due court-fee will be recovered from the concerned person still remains. Where, by mistake or inadvertence a trial Court omits to have the due court-fee paid, there the duty to do the needful rests upon the higher Court but the exchequer cannot be made to suffer for the lapse of one Court or the other.

7. Since the plaint in this suit continues to be unstamped despite its liability to bear court-fee of the value of Rs. 2,853.54 and neither of the two Courts below has passed any order for its payment, therefore, I air obliged to exercise power under section 28 of the Court Fees Act for recovery from the plaintiffs of the said court-fee. Accordingly, it i; directed that the Collector, Khushab will immediately recover on amount of Rs. 9,853.54 from the plaintiffs on that count and since the earlier appeal filed in this case by the vendees in the Court of Syed Sibtain Raza Naqvi, District Judge, Khushab (decided on 22-6-1983) had also to bear the court-fee of the same value which was not paid thereon, therefore, the learned Collector will also similarly recover an equivalent amount ever from the present petitioners on that count.

8. There does not emerge any case for exercise of revisional jurisdiction. Hence, dismissed in limine.

A. A./ 676/L Revision dismisses

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