1989SCMR 1314 (PLP)

Nemo for Respondents. Date of hearing: 14th March, 1989 ALI HUSSAIN QAZILBASH, J.‑‑This is a petition for leave to appeal against the judgment of a learned Single Judge of the Lahore High Court, Multan. Bench, dated 18‑12‑1988.

2. The petitioners purchased the suit land vide Mutation No.498 attested or, 17‑4‑19 73 for a consideration of Rs.14,437.50. The respondents pre‑empted the sale on the ground of their being owners in the estate. As a result of the pleading of the parties, a number of issues were framed, of which issue No.2 is relevant and is to the effect: "Whether the deficiency in court‑fee was not made up within time and it effect" The learned trial Court after recording the evidence, vide its judgment, dated 25‑7‑1984, dismissed the suit on the ground that the respondents have failed to make up the deficiency in the payment of court‑fee within the time allowed. The appeal filed by the respondents was also dismissed by the learned Additional. District Judge, Multan, on 27‑10‑1986. The High Court, however, vide the impugned judgment, accepted the Regular Second Appeal and decreed the suit of the respondents subject to the condition that besides the payment of the pre emption money, viz., Rs.14,437.50, they shall make up deficiency in the court‑fee within the period to be specified by the learned trial Court after the same has been determined by it.

3. The learned counsel for the petitioners has been heard. He contended that in this case the amount of court‑fee payable was not in dispute at all but the only question was whether the court‑fee had been paid by the respondents within the date specified by the trial Court, which obviously they had not, therefore, the respondents were rightly non‑suited by the two lower Courts. The High Court, he maintained, has thus committed an error in decreeing the suit relying on the case of Siddique Khan v. Abdul Shakur Khan (P L D 1984 S C 289). He further contended that since the respondents had failed to correct the valuation of the suit within the given time, the suit was hit by the provision of Order VII, Rule 11, C.P.C. and was rightly dismissed. 4 The above contentions we are afraid, have no force in that it is a matter of record and has been conceded by the learned counsel for the petitioners that in this case the amount of the court‑fee has not yet been determined by the trial or the appellate Court. Such being the position the suit could have only been dismissed if the respondents after proper determination of the court‑fee had failed to make up the deficiency within the specified time. As such the law laid down by this Court in the above‑cited judgment is fully applicable to the case in hand and the finding of the learned Single Judge is unexceptionable.

5. The petition is thus dismissed. AA/A‑448/S Leave Refused.