HASIB-UL-NISSA Vs. GHAFUR-ULLAH KHAN

JUDGEMENT

(1.) This appeal arises out of a suit for pre-emption which was instituted on the 18 of April 1905. The sale which is sought to be pre-empted took place on the 18 of April 1904, so that the plaintiff left it to the lust day available to him for bringing the suit. The valuation for the purpose of court fee was estimated at five limes the revenue, the plaintiff being under the impression that the case fell under sub-division (b) of Sub-section v of Section 7 of the Court Fees Act, Act No. VII of 1870. At the hearing an objection was taken as to the court fee and the Munsif determined this objection in favour of the objector, holding that there was a deficiency, us the court fees ought to have been estimated under subdivision (d) of the section to which we have referred and not under sub-division (b), namely, at the market value of the land, The deficiency was ordered to be made good by the 19 of August 1905, and this was done and the case disposed of on the merits. The Munsif gave the plaintiff a decree for pre-emption.

(2.) Upon appeal the lower appellate Court held that, inasmuch as the deficiency in the court fee was made good after the period allowed by the law of limitation had expired, the suit was barred, by limitation, and reversing the decision of the Court below dismissed the plaintiffs claim. The present appeal was therefore preferred.

(3.) Mr. Howard on behalf of the appellant relies upon the provisions of Section 28 of the Court Fees Act. That section provides that "if any document is through mistake or inadvertence received, filed or used in any Court or office without being properly stamped, the Presiding Judge... may, if he thinks fit, order that such document he stamped as he may direct, and on such document being stamped accordingly the same and every proceeding relative thereto shall be as valid as if it had been properly stamped in the first instance." It is admitted that if the mistake in the matter of the court fee had been a mistake on the part of the officer of the Court, this section would apply. But it is contended on behalf of the respondents that the mistake in the matter of the court fee was a mistake of the plaintiff and not a mistake of any officer of the Court. The question therefore narrows itself down to this simple question, whether or not in this case the deficiency in the court foe was due to a mistake of the plaintiff or a mistake of the officer of the Court?