1989 PLP 73 (CLC)

‑‑‑U. VII, R. 11 and Ss. 96, 148 & 149‑‑Appeal‑‑Court‑fee‑ Determination of‑‑Lower Appellate Court failing to determine valuation moreso when there was confusion about the area of land forming subject‑matter of the suit‑‑Dismissal of appeal without resolving such confusion at least for purpose of valuation of court‑fee. was not countenanced‑‑Impugned judgment and decree set aside and case remanded to Lower Appellate Court for decision of appeal afresh ‑ [Rahim Bakhsh v. Muhammad Bakhsh and 2 others P L D 1976 Lah. 686 overruled]. ‑ Siddique Khan and 2 others v. Abdul Shakur Khan and another P 4 D 1984 S C 289. rel. Rahim Bakhsh v. Muhammad Bakhsh and 2 others P L D 1976 Lah. 686 overruled. Taqi Ahmad Khan for Appellants. Ch. Abdullah Bajwa for Respondents. Date of hearing: 20th October, 1987. This Regular Second Appeal impugns the judgment decree dated the 26th of June, 1976, of the learned Addl. District Judge, Sialkot, whereby the appellants' first appeal was dismissed for non‑payment of court‑fee in time. Mr. Taqi Ahmad Khan for the appellants points out that the impugned judgment was hit by the rule enunciated in Siddique Khan and 2 others v. Abdul Shakur Khan and another (PLD 1984 SC 289) which, among other things, laid down that after determining the valuation for purposes of court‑fee, one adjournment to make good deficiency therein was obligatory. On the other hand Mr. Bajwa for the respondents submits that the area was rather 83 Kanals 16 Marlas than 56 Kanals 17 Marlas for which the appellants wanted to pay court‑fee and that it was due to their obduracy on this point that the appeal was dismissed.

2. Be that as it may, the determination of the valuation of court‑fee even on the area of 56 Kanals 17 Marlas was not made by the learned Addl. District Judge. He was influenced by the old law laid down in Rahim Bakhsh v. Muhammad Bakhsh and 2 others (PLD 1976 Lah. 686) whereby failure to pay the proper court‑fee during the period prescribed for bringing the suit appeal was held to be contumacious. This view is no more obtainable in the Supreme Court in the above Siddique Khan and 2 others' case was pleased to rule that after determination of valuation for court‑fee, one adjournment to make good the deficiency therein were essential. Of course, any subsequent adjournment was a matter of discretion'. In the case in hand the lower appellate Court failed to determine the valuation, the mores when there was still confusion about the area forming the subject‑matter on the suit. One version was that it was 56 Kanals 17 Marlas while the other was that it was 83 Kanals 16 Marlas. It had to be resolved at least for purposes of its valuation for court‑fee, and without the same dismissing the appeal was not countenanced. '

3. As a result, I accept the R.S.A., set aside the impugned judgment decree and remand the case to the lower appellate Court for re‑decision of the appeal after doing the needful. Parties to appear before it on the 18th of November, 1987. They are left to bear their own costs. S.Q./S‑132/L Appeal accepted.