1985 PLP 1967 (CLC)

The land in dispute was purchased by the vendees-respondents from one Jahanzeb Khan. Two suits were filed to pre-empt this sale; one by the present appellants and the other by respondents Nos. 34 to 36 herein. The vendees contested the suits. However, when the plaintiff-appellants herein, had already closed their evidence and the suit was fixed for recording evidence of the vendees, on the latter's application, the learned trial Court proceeded under Order VII, rule 11, C.P.C. and by its judgment and decree dated 23-1-1980 rejected the plaint in both the suits. The validity of the judgment and decree of the learned trial Court has been brought by the appellants, under challenge in this appeal. The rival pre-emptors have not filed any appeal.

2. We have heard the learned counsel for the parties and examined the trial Court's record. The plaint was rejected on the ground that the appellants failed to make good the deficiency in the court-fee within the specified period as per directions given in the order dated 8-3-1975 which runs as under:- It is discernible from the record that the appellants subsequently placed on the record the schedule of net profits and in accordance therewith, paid the requisite court-fee of Rs.4,252 and filed the stamp papers in the Court on 28-2-1976.

3. It is the requirement of clause (b) of Order XI, rule 3, C.P.C. that if the relief claimed is under valued, before rejecting the plaint, the Court must require the plaintiff, to correct the valuation within a specified period. It is conceded that the learned trial Court failed to give any such direction to the appellants. Furthermore, they were entitled to be informed of the specific amount of the court-fee to be paid by them. Undoubtedly, the order dated 8-3-1975 does not conform to this requirement of law as well. There is also nothing therein, fixing, the time for payment of the court-fee. Seemingly the words figuring in the order, dated 8-3-1975 relate to the deposit of "Zar-e-Panjum" and not the court-fee. The impugned judgment, therefore, suffers from an illegality. Faced with this situation, the learned counsel for the respondents did not have much in supporting the same. The judgment and decree under appeal are, therefore, liable to be set aside.

4. Accordingly, this appeal is accepted, the impugned judgment and decree are set aside and the suit is remanded to the learned trial Court with the direction to require the appellants to correct the valuation in the plaint for the purposes of court-fee, permit them to make good the deficiency in the court-fee, if any, according to the averment in the plaint, and proceed with the trial on merits, provided they comply with its orders in this behalf. The parties are left to bear their own costs and directed to appear before the learned trial Court on 19-1-1985. M.Y.H.???????????????????????????????????????????????????????????????????????????? Appeal accepted.