1983 PLP 2840 (CLC)

This appeal against the order of the learned District Judge, Jhang, dated the 23rd February, 1993, setting aside the dismissal of the respon dent's suit for possession by pre‑emption of 127 Kanals 10 Marlas of land in dispute situate in the area of village Mukhiana, Tahsil and District Jhang, recorded by Mr. Shaukat Ali Zaidi, Civil Judge, Jhang, on the 3rd July, 1980 and remanding the suit to Mr. Zulfiqar Ali Khan, Civil Judge, Jhang, for fresh decision arises out of the following circumstances. The appellants purchased the land in question from Muhammad Jamal and others for an ostensible sale consideration of Rs. 65,000 and mutation No. 241 (copy Exh. P. 1) was sanctioned on the 2nd May, 1974 in respect of the sale. The respondents, whose superior pre‑emptive right has been admitted by the appellants, instituted suit on the 30th April, 1975 to pre empt the sale. In the plaint the respondents stated that court‑fee of Rs. 590 was payable, that court‑fee stamp worth Rs. 15 was being axed, that the balance amount of Rs. 575.00 was being deposited in the treasury and the stamp when made available would be filed. On the 2nd May, 1975, the learned Senior Civil Judge, Jhang; ordered issuance of summonses for settlement of issues to the appellants for the 30th May, 1975 and directed that the statement of net profits should be got prepared and deficiency in court‑fee made up by that date. The respondents obtained court‑fee stamp worth Rs. 575 from the Treasury Office, Jhang, on the 6th May, 1975 and put in the same in the Court on the 9th May, 1975.

2. In their written statement filed on the 2nd September, 1975 the appellants took exception to the correctness of the vale of the cause for purposes of court‑fee and jurisdiction. An issue on that point as well as other issues were framed by the learned Senior Civil Judge the same day. While adjourning the suit for receiving evidence of the parties to 30th January, 1976; the learned Judge directed that the statement of net profits and report touching the same should be produced on the said date. The respondents in the meantime got prepared the statement of net profits according to which the value of the suit for purposes of court‑fee and jurisdiction reckoned at fifteen times the net profits for the preceding year came to Rs. 18,

975. The respondents made up deficiency in court‑fee to the tune of Rs. 835 on the 29th January, 1976. When the suit came up for hearing on the 30th January, 1976, the learned Judge remarked that the statement of net profits and deficiency in court‑fee had been put in.

3. The trial of the suit progressed and the parties produced and closed their evidence by the 18th July, 1977 when the suit was adjourned to the 19th October, 1977 for hearing arguments. On the last mentioned date the parties agreed to the appointment of Commissioner to ascertain the market value of the land in suit. Mr. Zulfiqar Cheema, Advocate, Jhang, was appointed commissioner and he submitted his report. On the objections to the report raised by the parties an issue whether the report was liable to be set aside was struck on the 6th February, 1978 and for parties' evidence thereon the suit was adjourned to the 6th April, 1978. Due to the absence on leave of the Presiding Officer on the 6th April, 1978 the hearing of the suit took place on the 8th July, 1978 when the' parties reached compromise: the appellants admitted the preferential pre emptive right of the respondents who in turn agreed that whatever Muhammad Jamal, son of Adil, stated touching the sale considera tion on the oath of Holy Quran the suit should be decreed on payment thereof. However, Muhammad Jamal declined to subscribe to the pro posed oath and the Court was left with no option except to call for the evidence of the parties in support of their objections to the report of the Commissioner. The respondents later on did not press their objections and the appellants failed to produce evidence. The suit was adjourned for arguments to the 3rd June, 1979 and again to the 17th July, 1979, as the respondent's counsel was out of station on the first mentioned date. On the 17th July, 1979 the appellants moved application under Order VII, rule l I of the Code of Civil Procedure‑ for securing dismissal of the suit as it was stated to have become time‑barred due to the respondent's paying of deficient court‑fee after the expiry of the period of limitation prescribed for filing the suit.

4. In the meantime the suit on transfer reached the Court of Mr. Shaukat Ali Zaidi. Civil Judge .Jhang, who, by his short order dated the 3rd July, 1980 accepted the appellant's application and dismissed the suit as time‑barred.

5. In appeal preferred by the respondents the learned District Judge noticed that the learned trial Court in its order dated the 2nd September, 1975 had extended the time for making up deficiency in court‑fee till the 30th January, 1976 and that it was within the extended time, that is, on the 29th January, 1976 that the respondents had paid the deficient amount of court‑fee in accordance with the statement of net profits got prepared by them. The learned District Judge remarked that the Court in its order dated the 30th January, 1976 deemed the said payment of deficient Court‑fee as valid and proceeded with the suit and that such payment had been accepted as good The learned Judge was of the view' that in such circumstances deficiency in court‑fee was to be taken to have been made up within time and suit could not be described as time‑barred. Therefore, accepting the appeal and setting aside the order of the learned Civil Judge, he remanded the suit.

6. In view of the rule laid down by the Supreme Court in Mst. Parveen v. Mst. Jamsheda Begum (P L D 1983 S C 227) the impugned order of the learned Civil Judge dismissing the suit is patently illegal. The suit was filed with in time. No order of its dismissal on the ground that it was time‑barred, as made by the learned Civil Judge, could have been passed. Even other wise there was no charge, muchless proof. of display of contumacy or negligence by the respondents in matter of payment of Court‑fee. There fore, they could not have been non‑suited.

7. The cumulative impression that one gathers from the perusal of the orders of the learned trial Court dated the 2nd September, 1975 and the 30th January, 1976 is that the learned Court had allowed the respondents to get prepared the statement of net profits and make up deficiency in court‑fee by the 30th January, 1976 and further that the Court had accepted the respondent's making good of deficiency in court‑fee within the time fixed by the Court as proper and valid. .

8. The trial of the suit had consumed no fewer than five years an the only point that remained to be thrashed was the determination of market value of the land in question. In these circumstances the order passed by the learned Civil Judge dismissing the suit besides being illegal was unjust and improper. The order of the learned District Judge rectifies the undesirable error committed by the learned Civil Judge. No excep tion can be taken to its validity. The appeal is without any force and is dismissed in limine.

9. As the parties have been litigating for over a long period it is in the interests of justice that the suit should be decided by as early a date as possible. The learned Civil Judge seized with its trial of directed to dispose it of within two months. M. Y. H. Appeal dismissed.