1989 PLP 394 (MLD)

Najamul Hassan Kazmi for Respondent. Date of hearing: 6th February, 1989. This revision petition assails the judgment and decree of the Additional District Judge dated 21‑12‑1983 whereby, while accepting the appeal filed by the respondents, the judgment and decree of the trial Court was set aside.

2. Briefly stated the facts giving rise to this petition are that on 11th of January, 1975 a suit for possession through pre‑emption was filed by the petitioner Muhammad Din relating to land measuring 53 Kanals 10 Marlas situate in village Malkey Tehsil Daska, District Sialkot. It was sold through a registered deed of sale dated 12th of January, 1974 by its owners Muhammad Yousaf and another, to the respondents ostensibly for Rs. 66,500.

3. This suit was resisted by the respondents on various pleas, inter alia the incorrect valuation for the purposes of court‑fee and jurisdiction. It was stated that the respondents had effected improvements on the land of the value of Rs. 20,

000. On the basis of the evidence led by the parties the suit was decreed by the trial Court on 4th of July, 1978. However, the court‑fee was found to be deficient by Rs. 359.62 and the petitioner was allowed time up to 10th of September, 1978 to make up this deficiency. The respondents were also awarded Rs. 20,024 as cost of the improvements.

4. Aggrieved by this decision, the respondents filed an appeal which was accepted by the Additional District Judge, Sialkot on 21st of December, 1983. The sole ground for setting aside the decree of the trial Court was that since the conduct of the petitioner had been contumacious throughout the trial, he was not entitled to the grant of time for making up the deficiency in court‑fee. The lower appellate Court on the basis of a special oath taken by the respondents on an offer made by the petitioner, also held that the respondents were entitled to receive Rs. 1,00,000 as compensation for the improvements.

5. The first contention raised by the learned counsel for the petitioner in support of the revision petition is that since at no stage of the trial the exact amount of court‑fee payable was determined, the trial Court was under an obligation to have allowed the petitioner to make up the deficiency and was, therefore, perfectly justified in doing so. I find great deal of force in this contention of the learned counsel for the petitioner. As held by Supreme Court of Pakistan in Muhammad Siddique Khan and two others v. Abdul Shakoor Khan (P L D 1984 S C 289), the Court is under an obligation to determine the exact amount of court‑fee payable and then allow at least one opportunity to the plaintiff to make up the deficiency by supplying the requisite court‑fee. Admittedly, in the present case prior to 4th of July, 1978 when the final judgment was announced, this determination was not made and it was for the first time while deciding the suit itself, that the court‑fee was quantified. The petitioner A under the law was entitled to the grant of an opportunity to make up the deficiency and no fault can be found with judgment of the trial Court in this respect. The contrary conclusion arrived at by the lower appellate Court is not sustainable.

6. The learned counsel for the petitioner next objected to the grant of Rs. 1,00,000 as compensation for the improvements by the lower appellate Court to the respondents. However, during the course of arguments, petitioner who is present in person as also his learned counsel did not press this point and have agreed to pay Rs. 1,00,000 as compensation for the improvements to which he was found entitled by the lower appellate Court. In view of what has been stated above this revision is accepted, the decree and judgment of the District Judge is set aside and the suit of the petitioner is decreed on the payment of Rs. 66,500 as the sale price and an additional sum of Rs. 1,00,000 as compensation for the improvements effected by the respondents. The petitioner shall deposit this amount less the amount already deposited before 5th of May, 1989, failing which his suit shall stand dismissed. With the consent of the parties, it is directed that this decree will become executable only after 5th of May, 1989. No order as to costs H.B.T./M‑1147/L??????????????????????????????????????????? Revision accepted/Order accordingly.