P L D 1988 Supreme Court 707 (PLP)

SAAD SAOOD JAN, J.‑‑This is an appeal by special leave from the judgment dated 10‑4‑1978 of the Lahore High Court dismissing the second appeal of the appellants from the judgment of the Additional District Judge, Multan.

2. By a registered sale‑deed dated 26‑10‑1959, the appellants purchased .about 27 Kanals of land situate in the area of Jangamal Wala of Mauza Daulatabad, Tehsil Multan, for an ostensible consideration of Rs.22,

000. Khurshid Akbar Khan, respondent No.l filed a suit for pre‑emption, alleging inter alia that the actual price fixed and paid by the appellants was only Rs.10,000 and that an inflated amount had been shown in the sale‑deed. He valued the suit for the purpose of court‑fee at Rs.6,398‑7‑0, which was equivalent to 15 times of the net profits of the preceding year. The trial Court decreed the suit and also held that the sale price mentioned in the sale‑deed was fixed in good faith and was actually paid; accordingly, it directed that respondent No.l should deposit the sum of Rs.22,000 less the tar‑e‑Panjum till 15‑4‑1965, failing which the suit would stand dismissed. Respondent No.l filed an appeal before the Additional .District Judge for reducing the purchase amount to Rs.10,

000. Instead of paying court‑fee in accordance with the value of the relief claimed, that is Rs.12,000 he affixed court‑fee stamp of the same value on his memorandum of appeal as he had done in respect of his plaint. The appeal came up for hearing on 4‑12‑1965 when the deficiency in 'the court‑fee amount was pointed out to him. He moved an application for permission to make up 'the deficiency. The learned Additional District Judge rejected the application and held that the appeal was not entertainable on account of non‑payment of proper court‑fee. Nevertheless, he considered the appeal on merits and affirmed the finding of the trial Court that the price actually fixed and paid was Rs.22,

000. Consequently, he dismissed the appeal and called upon respondent No.l to deposit the purchase price by 4‑2‑1966. 3.. From the judgment of the learned Additional District Judge the appellants filed a second appeal before the High Court. They were aggrieved by the extension of time which the learned Additional District Judge granted to respondent 'No. 1 for depositing the purchase amount. It was argued on their behalf that as the memorandum of appeal of respondent No. l did not bear the proper amount of court‑fee, it was not entertainable and for that reason the learned Additional District Judge was not competent to extend the date for depositing the purchase price. This contention was rejected by a learned Single Judge in the High Court and their appeal was dismissed. The appellants have now come in appeal to this Court.

4. Learned counsel for the appellants has canvassed the same argument before us which he had taken in the High Court. Thus, he contends that once the learned Additional District Judge had held that the appeal was not entertainable on account of deficiency in the court‑fee, he had no power to vary the terms of the decree by extending the time for depositing the purchase price. He; however, does not contest the proposition that if the appeal had been properly presented the learned Additional District Judge would have been competent to extend the time for the purpose. Thus, the only question for consideration before us is whether on account of deficiency in the court‑fee there was no proper appeal before the Additional District Judge. Now, it is to be noticed that the memorandum of appeal as filed by respondent No.l did bear court‑fee stamp worth Rs.427.50. There is authority for the view that an appellant who does not pay the full amount of court‑fee on his memorandum of appeal on the relief claimed, can give up a part of his claim and request the appellate Court that relief should be granted to him in an amount A which is proportionate to the court‑fee actually paid by him. Reference in this context may be made to the cases of Firm Nihal Chand Atma~ Ram v. Sardari Mal A I R 1926 Leh. 558 and 'Amir .Shah Muhammad v. Syed Shah Muhammad A I R 1931 Leh. 237: The Division Bench which decided Amir Shah Muhammad's case went on to hold that even if no formal request was made by the appellant in this regard, it was for the District Judge to hear the appeal for the reduction of the pre‑emption price by the amount for which court‑fee had been paid. This appears to be a fair view of the matter. The facts in the case of Amir Shah Muhammad, ibid. bear a strong resemblance to those in the appeal before us. We should, therefore, think that there is no merit in the contention that as there was no proper appeal before the Additional District Judge, he was not competent to extend the time for making the deposit. We would accordingly dismiss this appeal with costs. K.B.A./A‑288/S Appeal dismissed