P L D 1983 Lahore 253 (PLP)

This Regular First Appeal has been filed against the order dated 9-4-1978 of the learned Civil Judge, Sheikhupura, challenging its validity in law.

2. Briefly the facts appertaining to this appeal are that a suit for possession of land through pre-emption was instituted on 2-10-1977 by the appellants against the respondents. The plaintiffs/ appellants had averred in Para. No. 8 of their plaint that the "valuation of the suit for the purposes of court-fee and jurisdiction is 533'1 net profits of the preceding year which by fifteen times comes to Rs. 8,000 on which stamp papers for Rs. 600 is required but for the time being only court-fee of Rs. 75 has been made available, rest of it will be made good after securing it from the treasury." On 3-10-1977 the trial Court passed an order as to making the deficiency good in respect with court-fee after obtaining net profits chart. As to the deposit of one-fifth of the value (i.e. Rs. 6,600) it was ordered to be made before 28-11-1977. The respondents filed a written statement dated 7-2-1978 raising preliminary objections, inter alia, that one-fifth of the value of the land i.e. Rs. 6,6.,0 had not been deposited within the time as prescribed by the trial Court The deficiency in court-fee had not been made up within time which was also to be made good before 28-11-1977.

3. It is relevant to note that the plaintiffs/appellants made an application dated 27-11-1977 for the extension of time stating that one-fifth of the value had already been deposited and that the appellants were ready with the money but the treasury had not made available the stamp papers to them, nor there was any likelihood of its availability by the following day. ???????????

4. The learned counsel for the plaintiffs/appellants has submitted that the one-fifth of the value of the land was deposited on 27-11-1977 and as to the deficiency of court-fee be has maintained that due to the non-availability of the stamp papers it was made good on 13-12-1977 since extension had been sought, therefore, the deficiency would be treated as having been made good within the time. Against this position, the learned counsel for the respondents has supported the order of the trial Court and has taken exception to the effect that in fact deposit of one-fifth of the value of the land was made on 28-11-1977 and as such there was delay of one day and there had been no proper extension of time. The conduct of the plaintiffs/ appellants was throughout contumacious and on that ground they deserved no indulgence from the Court and no exception can be taken to the well-reasoned order of the trial Court. .

5. As to the main flourish of the case it is curious enough to note that the learned trial Court had not framed the preferable issues as to the deposit of one-fifth and the court-fee despite the fact that the parties were at variance on the face of the plaint and the written statement.

6. The defendants/respondents made an application on 7-2-1978 under section 22(4) of the Pre-emption Act as well as under Order VII, rule 1-1, C. P. C. for the rejection of the plaint on the ground of non-compliance of the,. order of the Court as to the deposit of one-fifth of the value of the land and the court-fee having not been paid within the time prescribed. In their reply to this application the. plaintiffs/appellants submitted that the time for making the deficiency good had been extended by the Senior Civil Judge in the absence of the learned trial Judge who was on leave ; that by the 28th November, 1977, the amount was deposited in the treasury according to the orders of the trial Judge and on 13-12-1977 stamp papers of the outstanding court-fee were filed in the trial Court. 7. . In view of the application and reply no issue was framed. The trial Court however, proceeded to decide the application for rejection from pleadings to arguments without evidence proper and by its order A dated 9-4-1978 rejected the plaint. The order so delivered cannot be sustained since the learned trial Judge has committed a breach of procedural law and as such the jurisdiction has been exercised with material irregularity.

8. The Order XIV, rule 1, C. P. C. enjoins upon the Court to raise an issue where a material proposition of fact or law is affirmed by one party and denied by the other. This requirement has been made as part of the procedural law in order to apprise the Court on what material proposition 6 of fact or law it is to try that and to indicate to the parties as to what is the material proposition and on whom lies the onus and what sort of evidence is to be adduced to prove the issue and when the onus shifts what sort of evidence for rebuttal is required.

9. As is obvious, in the absence of the necessary issues the evidence has not been led. A tendency has developed to decide certain matters without framing an issue and to render the decision on the pleadings and argument t of the parties. The invitation to adduce evidence can only be dispensed? requires certain facts to be proved by way of affidavits with by a Court when? only in keeping with the circumstances of a case.

10. In this case the receipt produced as to the deposit of one-fifth of the value requires attention since it can be read both ways as to the deposit made either on 27-11-1977 or on 28-11-1977. Hence the necessity arises for framing an issue as to the deposit of one-fifth so that the parties may be able to adduce evidence as to the certain date on which the deposit was made. Various explanations have been rendered by the plaintiffs/appellants as to the making up, of the deficiency which assertion requires the framing of an issue because it is necessary to adduce evidence for the plaintiffs/appellants to justify their conduct. 11. 1, after accepting the appeal, set aside the order of the trial Court dated 9-4-1978 and pass an order for the remand of the case with a direction to the learned trial Court to proceed with the application made by the defendants/respondents for rejection of the plaint after framing an issue and F giving proper chance to the parties to adduce evidence in support of their assertions at variance, in accordance with law. In the circumstances, the parties are left to bear their own costs. MUNAW WAR ELAHEE RANA, J.-I agree. M. Y. H.????????? Appeal dismissed.