2002 PLP 3157 (YLR)

"The proper course for the lower Court was to have got amended the plaint so as to make it for recovery of money and then should have allowed the adjustment if any." The case was, accordingly, remanded to the learned Trial Court permitting amendment in the plaint and thereafter to pass an order for payment of Court‑fee.

4. Feeling aggrieved, the respondents approached this Court in F.A.O. No.147 of 1978. It was allowed vide judgment dated 1 6‑1981. The order of remand dated 9‑4‑1978 was set aside and the learned Additional District Judge was directed to decide the question of the price paid as embodied in issue No.2.

5. Pursuant to the aforesaid judgment of this Court the matter was decided, by the learned Additional District Judge, Sialkot, vide his judgment and decree dated 17‑6‑1982 wherein it was held that the sale price was Rs.33,000 and the petitioners/pre‑emptors were rightly allowed an adjustment of Rs.550 the value of the Malba removed by the respondents/vendees. The said judgment was not further assailed.

6. On 21‑3‑1984 the petitioners filed an execution petition against which the respondents filed an objection petition. Vide order dated 24‑2‑1985 of the learned Executing Court, the objection petition of the respondents was allowed on the ground that the petitioners had failed to deposit the court fee as directed in the judgment dated 17‑4‑1975 with the result that their suit stood dismissed.

7. The petitioners filed an appeal before the learned District Court which was dismissed by learned Additional District Judge, Sialkot vide judgment and decree dated 27‑4‑1986. These are the subject‑matter of this revision petition.

8. The learned counsel for the petitioners placed reliance on the observations of this Court in para. 4 of the judgment in F.A.O. No.147 of 1978 to contend that in fact the direction of the learned Trial Court, for the deposit of the court‑fee Rs.25.50 stood set aside and therefore, there was no non compliance of the direction contained in the judgment and decree dated 17‑4‑1975. In the alternative he contended that the judgment and decree dated 17‑4‑1975 were set aside on the appeal of the petitioners and while setting aside the order of remand dated 9‑4‑1978 this Court should have granted time to make up deficiency in the Court‑fee. He further maintained that while disposing of the appeal vide judgment dated 17‑6‑1982, in pursuance of the judgment of this Court in F.A.O. No.147 of 1978, the learned First Appellate Court also did not advert to this aspect of the matter. According to him, no one should be allowed to suffer for the act of the Court. It was further maintained that undisputedly, during the pendency of the suit, the respondents had removed the `Malba' and therefore, the suit was rightly valued and there was no justification for directing payment of additional Court‑fee.

9. On the other hand, the learned counsel for the respondents contends that with the setting aside of the order of remand dated 9‑4‑1978 by this Court, the appeal of the petitioners Became pending in which not only the sale consideration was disputed but the order directing payment of Court‑fee was also disputed. The learned First Appellate Court, while disposing of this appeal vide judgment dated 17‑6‑1982 did not extend time for the deposit of the Court‑fee and therefore, within the terms of the decree dated 17‑4‑1975 the suit of the petitioners stood dismissed. Reliance was placed on Ilam Din and others v. Abdul Hameed, and others (1980 CLC 807). It was further contended that the judgment dated 17‑4‑1975 had altered the value of the suit to the extent of the Khota at Rs.550 and therefore, Court‑fee was required to be paid on the said amount. According to him the matter stands concluded by concurrent findings of the learned two Courts and therefore; no interference was called for.

10. I have considered the submissions made by the learned counsel for the parties. The emphasis of the learned counsel for the petitioners has been on the observations of this Court in para 4 of the judgment in F.A.O. No.147 of 1978. The said paragraph is reproduced for facility of reference:‑ "The Trial Court had earlier found that the vendees had, during the pendency of, the suit, removed the Malba of the house in dispute. The value of which was calculated by the Court on the basis of special oath. It means that the Trial Court actually decreased the value of the property to the extent Rs.550 the benefit of which the vendees had already derived. Whether such a reduction could not be made was a question which the vendees only could dispute, but since they did not come up in appeal, nor did they file the cross-objections, they were thus not allowed to have agitated this point before the learned Additional District Judge, and he could not have interfered with that portion of the relief in respect of which no appeal was filed. The plaintiffs/pre‑emptors as a matter of fact, had questioned the sale price, which, according to them, was not more than Rs.25,

000. I find that the learned Additional District Judge concentrated on an issue which was not put to him for determination, and did not apply his mind to the issue relating to the price actually paid, and for reasons known to him, he did not decide the said dispute. The remand, in the circumstances, was uncalled for and virtually did not serve the cause before him."

11. The observations reproduced above do not show that the direction of the learned trial Court for payment of Court‑fee was set aside. According to the observations in para. 3 of the judgment, the order dated 9‑4‑1978 to the extent of affirming the direction of the learned Trial Court for payment of court‑fee at the time of disposal of the suit was maintained.

12. If a successful pre‑emptor does not comply with the direction of the learned Trial Court, he does so at his own risk and the Appellate Court is not bound to extend time. It appears that no such request was made by the petitioners before this Court for extension of time for payment of court‑fee nor such a request was made to the learned First Appellate Court in the post remand proceedings with the result that the time fixed by the decree dated 17‑4‑1975 for supplying the Court‑fee was not extended and undisputedly it was not complied with by the petitioners. Therefore, within the terms of the decree dated 17‑4‑1975 the suit of the petitioners stood dismissed and, therefore, no exception could be taken to the order and the judgment impugned in this revision petition.

13. For what has been stated above I find no merit in this petition which is accordingly, dismissed. H.B.T./I‑134/L Revision dismissed.