2004 PLP 974 (YLR)

2. The fact giving rise to the present revision petition are to the effect that Mushtaq Ahmad Shah plaintiff/petitioner had filed a suit for possession through pre emption on the sale of land measuring 41 Kanals, 13 Marlas bearing Khata No.126 situated in Mauza Kot Bahian, Tehsil and District Mainwali, transferred for a consideration of Rs.2,92,000 through Mutation of sale No.871, dated 30-8-2002. The suit was filed on 2-11-2002 and the trial Court directed the petitioner to deposit `Zar-i-Soim' within thirty days. The case was adjourned to 4-12-2002 on which date the suit was dismissed for non-deposit of 1/3rd amount of the sale price by the trial Court.

3. Feeling aggrieved thereby the petitioner preferred an appeal which came up for hearing before the District Judge, Mianwali who through the impugned order dated 25-5-2003 dismissed appeal for non -deposit of the court-fee on memorandum of appeal.

4. The learned counsel for the petitioner has contended that the trial Court had not directed the petitioner to deposit `Zari-i-Soim' and the petitioner could not be punished for the fault of the Court. Further contended that the jurisdictional value of the suit after calculating net profit comes to Rs.1,81,035 and the trial Court lacks jurisdiction to try the suit, hence the order dismissing the suit of the plaintiff/petitioner by the trial Court is without jurisdiction. Further contended that the suit was not decided on merits and it was not a decree and no Court-fee was payable on the memorandum of appeal and the trial Court had not attended to this legal aspect of the case.

5. I have heard the arguments of the learned counsel for the petitioner and perused the record.

6. The suit had been filed by the plaintiff/petitioner on 2-11-2002, it was fixed for 4-11-2042 and on the said date the trial Court directed the plaintiff to deposit 1/3rd of the sale price (`Zari-i-Soim') as well as statement of net profit alongwith the copy of Jharr Paidawar etc. within 30 days and on 4-12-2002 for non-deposit of the 1/3rd of the sale price, the trial Court dismissed the suit.

7. Section 24 of the Punjab Pre emption Act provided that in every suit for pre-emption, the Court shall require the plaintiff to deposit in such Court one-third of the sale price of the property in cash within such period as the Curt may fix provided that such period shall not extend beyond thirty days of the filing of the suit. In the case in hand in the mutation of sale, sale price of the property was fixed as Rs.2,92,000 and the plaintiff/pre-emptor was bound to deposit under the direction of the Court one-third of the said amount. The Court had clearly directed the petitioner to deposit `Zar-i-Soim' and the statement of account of net profit and copy of (ﺭﺍﻭﺍﺩﻳﭙ -ﺭﺎﻬﺠ) etc. section 24 ibid envisages that no 1/3rd amount could be ordered to be deposited beyond thirty days and the Cart is not empowered for extension of time. Subsection (2) of section 24 of the Punjab Pre-emption Act further empowers the Court that where the plaintiff fails to make a deposit under subsection (1) within the period fixed by the Court, or withdraws the sum so deposited by him, his suit shall be dismissed. In this context reliance can be placed to the case of Awal Noor v. District Judge, Okara and 8 others (1992 SCMR 746), Muhammad Ismail v. Jamil ur Rehman and 6 others (1995 MLD 1011), Mian Asif Islam v. Mian Shahid Aslam and 3 others 1999 (SCMR 1350), Riaz Ahmed v. Additional District Judge, Sargodha and another 1999 YLR 336 and Muhammad Siddiq v. Muhammad Ilyas v. (1999 YLR 1105).

8. As to the argument of the learned counsel for the petitioner that the Court lacks jurisdiction to try the suit, it is suffice to observe that the plaintiff while at the time of institution of the suit had not determined the jurisdiction value of the suit. For further ready reference paragraph 9 of the plaint is reproduced as under:-- The petitioner/plaintiff deposited the statement of account of net profit determining the value for court-fee and jurisdiction as Rs.1,81,035 and while furnishing statement of account of net profit no amendment in the plaint determining the jurisdiction value of the suit has been made which was the legal duty of the plaintiff so that the Court could determine its jurisdiction. Further contended that during the pendency of the suit or on the day when the order, dated 4-12-2002 was passed, no such objection was raised by the plaintiff and at this revisional stage, that objection cannot be raised which was not raised before the trial Court/Appellate Court.

9. The appeal against the dismissal of the suit of the petitioner was dismissed by the lower Court for deficiency of court-fee the Court had directed the plaintiff to make up deficiency and affix the court-fee on the memorandum of appeal. The learned counsel for the petitioner contends that dismissal of the suit for non-deposit of `Zar-i-Soim' is nor a decree. The answer would be that dismissal of a suit is a decree which is appealable (sic).

10. The word 'decree' has been defined in subsection (2) of section 2 of Civil Procedure Code which reads as under: "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint (the deter mination of any question within section 144, and an order under rules 60, 98, 99, 101 or 103 of Order XXI) but shall not include-- (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default.

11. In the present case, the suit of the plaintiff/petitioner had been dismissed for non-compliance of order and non-deposit of `Zari-i-Soim' 1/3rd pre-emption money as enshrined in section 24 of the Punjab Pre emption Act. The dismissal of a suit in such-like matter is a decree. Reliance in this context can be placed to the case of Ghulam Qadir Khan and others v. Ahmad Nawaz Khan and others (1994 CLC 1118). So much so, the rejection of plaint under Order 7, rule 11, C.P.C. is also a decree and appealable. Reliance in this regard can be made to the cases of Muhammad Sharif v. Muhammad Sharif (1992 SCMR 1129) and Ghulam Muhammad v. United States Agencies for International Development Mission, Islamabad (1986 SCMR 97). So, the order dated 4-12-2002 passed by the trial Court dismissing the suit is a `decree' and appealable.

12. The Court-fee is leviable on memorandum of appeal filed in the District Court in accordance with the provision of section 6 of the Court Fee Act which reads as under:-- "

6. Fees on documents filed, etc., in Mufasil Courts, or in public offices.

Except in the Courts hereinbefore mentioned, no document of any of the kinds specified as chargeable in the First or Second Schedule to this Act annexed shall be filed; exhibited or recorded in any Court of Justice, or shall be received or furnished by any public officer, unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said Schedules as the proper fee for such document."

13. Article 1 of Schedule 1 of the Court Fee Act, 1870 emerges as under:-- "Plaint, written statement, pleading a set-off or counter-claim or memorandum of appeal (not otherwise provided for in this Act), or, of cross-objection presented to any Civil or Revenue Court except those mentioned in section 3 shall be chargeable as Court-fee. Reference in this context can be placed to- the case of Mirza Daud Baig v. Additional District Judge, Gujranwala and others (1987 SCMR 1161).

14. The petitioner had himself filed the appeal against the order dated 4-i2-2002 anti he was directed by the lower Appellate Court to make up the deficiency on memorandum of appeal but he did not fulfil the order hence his appeal was validly Dismissed by the Court being incompetent for lack of court-fee.

15. For the foregoing reasons, this revision petition being devoid of force is dismissed. S.A.K./M-2370/L Revision dismissed.