Missed Page No (PLP)

Siddique Khan v. Shakoor Khan P L D 1984 S C 289 ref. Rana Abdul Majeed for Petitioner. Sh. Khalilur Rahman for Respondent. Date of hearing: 18th November, 1985. This revision petition arose out of a suit for pre‑emption filed by the petitioner against Mst. Shaukat Begum to pre‑empt the sale of the land made in favour of Mst. Shaukat Begum through mutation attested on 8‑3‑1974. The suit was filed on 6‑3‑1975 affixing a court‑fee of Rs.45 only on the plaint. It was, however, stated that due to non‑availability of revenue documents the valuation is being tentatively fixed. It was only on 10‑11‑1976 when observing that the suit had not been properly valued the learned trial Court directed the petitioner to fix and determine the valuation according to the revenue documents and in case the court‑fee paid was deficient to make‑up the deficiency accordingly by the next date of hearing, i.e. 24‑3‑1977. The petitioner admittedly complied with the said order by affixing the court‑fee of the value of Rs.1,700 more. The learned trial Court recorded the evidence and ultimately, vide its judgment and decree, dated 20‑3‑1982 dismissed the suit returning the findings under issue No. 1 that the suit was barred by time and under issue No. 3 that the court‑fee paid initially on the plaint was deficient and that the payment of the court‑fee after the expiry of the period of limitation was inconsequential. It may be noted that issues Nos. 6 and 7 on the question of price were conceded and issue No. 5 pertaining to the superior right of the petitioner was decided in favour of the petitioner. The decree of dismissal of the suit was challenged in appeal but the appeal was also dismissed observing and holding that the deficiency in the court‑fee having been made good after expiry of the period of limitation the suit was rightly dismissed by the learned trial Court on this score. The learned appellate Court, however, reversed the finding on issue of limitation and held that the suit was otherwise filed within time. Thereafter, the petitioner filed the present revision petition.

2. I have heard the learned counsel for the petitioner. The petitioner's suit ultimately was dismissed on the ground of non‑payment of proper court‑fee within the prescribed period of limitation. The suit could not have been dismissed in view of the law enunciated by the Supreme Court in the case of Siddique Khan v . Shakoor Khan P L D 1984 S C

289. In the instant case no doubt that the plaint was deficiently stamped initially but the very first order passed by the learned trial Court directing payment of proper court‑fee was fully complied with and in this view of the matter there was no contumacy on the part of the petitioner. In these circumstances the suit should not have been A dismissed. The issue pertaining to the superior right stands already decided in favour of the petitioner. Under issues Nos. 6 and 7 it was conceded that Rs.22,500 was the sale‑price which was actually paid by the respondent. Learned counsel for the respondent has not been able to say anything to assail these findings.

3. In view of above there is no alternative but to accept the revision petition and to set aside the judgments and decrees passed by the learned Courts below and to decree the suit of the petitioner. Consequently the suit of the petitioner is hereby decreed. The petitioner‑plaintiff shall deposit a sum of Rs.22,500 minus Zare‑panjam if already deposited with the learned trial Court by 4‑1‑1986. In case of failure to deposit the amount as directed the suit shall be deemed to have beer, dismissed.

4. The parties are left to bear their own costs H.B.T Suit decreed.