2007 PLP 2550 (YLR)

JAWWAD S. KHAWAJA, J.--Muhammad Akhtar (respondent No,1) filed a suit against the petitioner and respondent Nos.2 to 6 seeking specific performance of an agreement dated 4-2-2000. In paragraph 2 of the plaint, he expressly stated that the consideration for the sales was Rs.8,00,

000. However, no court-fee was affixed by him on the plaint. The petitioner, in his written statement, took up a preliminary objection that the plaint was liable to be rejected for want of proper court-fee. Additionally, it was stated in the written statement that the respondent had earlier filed a Suit bearing No.273 of 2001 on 7-7-2001 in respect of the same agreement to sell without affixing court-fee. The earlier suit was dismissed on 19-7-2001 for want of payment of court-fee. The respondent-plaintiff had thereafter filed an application on 20-7-2001 praying that he be permitted to affix court-fee and the suit, which had earlier been dismissed, be ordered to be restored. 'At this point, it is relevant to note that in the earlier suit the respondent-plaintiff had valued the suit at Rs.8,00,000.

2. The facts, which were set out in the written statement as noted above, are not disputed by the respondent-plaintiff. It is in these circumstances that the learned trial court rejected the plaint vide order dated 6-1-2005. The learned appellate Court has, however, set aside the rejection of plaint vide order dated 15-11-2005 and has remanded the case to the learned trial Court holding that the respondent-plaintiff should have been allowed an opportunity to affix court-fee.

3. I have considered they circumstances of the case which show that the conduct of the respondent has been inequitable and unfair. The first suit filed by him was valued at Rs.8,00,

000. In the second suit, without any explanation, he valued the same at Rs20,000, Furthermore, the application filed by the respondent seeking permission to affix court-fee on the plaint in the earlier suit did not disclose any valid reason for his failure to furnish the requisite court-fee within the time allowed by the learned trial I Court vide 'order dated 7-7-2001. The mere fact that the respondent-plaintiff was out of station, cannot be a justification for his failure to comply with the aforesaid order. In the circumstances, I find no justification for the order dated 15-11-2005 passed by the learned appellate Court. The learned Court has not taken note of the fact that the respondent had been granted an opportunity to make good the deficiency in court-fee but had failed to avail the same.

4. At this point it is also relevant to note that the respondent has sought specific performance of an agreement to sell. The relief sought by him is discretionary and can rightfully be denied to a plaintiff in the circumstances set out in section 22 of the Specific Relief Act. The present case presents the most appropriate circumstances' in which specific relief should be denied to the respondent-plaintiff, In the foregoing circumstances, the impugned order dated 15-11-2005 is set aside and, as a consequence, the order of the learned trial Court rejecting the plaint is restored. The petitioner shall also be entitled to his costs throughout. H.B.T./A-29/L???????????????????????????????????????????????????????????????????????? Revision allowed.