1991 PLP 978 (SCMR)

‑‑‑‑S.15‑‑‑Civil Procedure Code (V of 1908), O.VII, R.11‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Deficiency in court‑fee made good by pre‑emptor on direction of Trial Court‑‑‑First Appellate Court allowed vendee's appeal on ground that pre‑emptor was not entitled to the exercise of discretion by Trial Court in permitting to make good deficit court‑fee ‑‑‑Pre‑emptor's second appeal was accepted‑‑‑Leave to appeal was granted to consider whether deficiency in court‑fee could be allowed to be made up when pre‑emptor had deliberately fixed a nominal court‑fee while instituting plaint. (c) Civil Procedure Code (V or 1908)‑‑‑ ‑‑‑‑O.VII, R.11‑‑‑Making up deficiency in court‑fee‑‑‑One opportunity as of right, should be granted to plaintiff to make up deficiency in court‑fee‑‑‑Such deficiency should have been determined and clearly stated by Court in its order for being made good by a certain date. (d) Punjab Pre‑emption Act (I or 1913)‑‑‑ ‑‑‑‑S.15‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Right of pre‑emption‑‑ Vendee's plea before Supreme Court that no pre‑emption decree having been passed before crucial date i.e. 31‑7‑1986, no pre‑emption decree could be passed thereafter ‑‑‑Vendee had taken a substantial ground of attack, but he could take the same before lower Court i.e., Trial Court. Shahid Hussain Qadri, Advocate Supreme Court and Rana Maqbool Ahmad Kadri, Advocate‑on‑Record for Appellants (in Civil Appeal No.307 of 1985). Amir Alam, Advocate Supreme Court and Mahmood A. Qureshi, Advocate‑on‑.Record for Respondent (in Civil Appeal No.307 of 1985). Ch. Muhammad Farooq, Senior Advocate Supreme Court and Rana Maqbool Ahmad Qadri, Advocate‑on‑Record for Appellant (in Civil Appeal No.351 of 1985). Ch. Klialilur Rehman, Senior Advocate Supreme Court and Ch. Mehdi Khan, Advocate‑on‑Record for Respondent (in Civil Appeal No. 351 of 1985). Date of hearing: 25th February, 1991. RUSTAM S. SIDHWA, J.‑‑‑This judgment will dispose of Civil Appeal C.A. No.307 of 1985 filed by Muhammad lqbal and others, appellants, against the judgment of a learned Division Bench of the Lahore High Court dated 29‑11‑1980 accepting the regular first appeal filed by Abdul Hamid respondent, setting aside the judgment and decree of the learned Senior Civil Judge, Sheikhupura, dated 29‑11‑1976 and remanding the case to the trial Court for decision in accordance with law, and Civil Appeal C.A. No.351 of 1985 filed by Jalal Din appellant against the judgment of a learned Single Judge of the Lahore High Court dated 3‑11‑1985, accepting the appeal of Sardar Muhammad respondent, setting aside the judgment and decree of the learned District Judge, Sahiwal, dated 13‑11‑1984 and restoring the judgment and decree of the learned Civil Judge, Chichawatni, dated 15‑4‑1984.

2. In the appeal filed by Muhammad Iqbal and others, appellants, Abdul Hamid respondent filed a suit on 10‑5‑1976 to pre‑empt a sale made in favour of the appellants for an ostensible sum of Rs.1,50,

000. The respondent tentatively valued his plaint for purposes of court‑fee and jurisdiction at Rs.300, being fifteen times the net profits, with an averment that the deficiency would be made good after preparation of the Jhar Pedawar. On 12‑5‑1976 when the suit was placed before the Court after scrutiny, summons were issued to the appellants for 26‑7‑1976 and the respondent was directed to deposit in Court a sum of Rs.30,000 as Zar‑e‑Panjum and to also pay deficit court‑fee after preparation of Jhar Pedawar before the next date. The respondent filed an application showing his inability to pay Rs.30,000 and asked for permission to furnish security instead. The said prayer was disallowed on 14‑7‑1976, but at the same time the Court reduced the amount and directed the respondent to deposit a sum of Rs.6,000 by the date specified and the Jhar Pedawar to be prepared and the deficiency to be made good. Notwithstanding a number of hearings, the deficiency not having been made good, the Court on 29‑11‑1976 rejected the plaint. The appeal of the respondent having been accepted and the case remanded for decision in accordance with law, the appellants petitioned this Court for leave to appeal, which was granted to consider whether in the circumstances of the case the respondent should have been allowed to make up the deficiency.

3. In respect of the appeal preferred by Jalal Din appellant, Sardar Muhammad respondent filed a suit to pre‑empt a sale made in favour of the appellant for an ostensible sum of Rs.1,35,

000. The respondent valued the suit at Rs.600 on the basis of net profits arising in the preceding year. On proper calculation, court‑fee of Rs.675 was paid on the plaint. The appellant having raised an objection, the suit proceeded to trial on a number of issues, and was ultimately decreed in favour of the respondent, subject to the respondent paying deficit court‑fee within a period of 15 days, failing which his plaint would stand rejected. In view of the judgment, the respondent deposited the decretal amount and also paid the deficit court‑fee. However, the appellant having preferred an appeal against the trial Court's judgment, the appellate Court allowed the appeal on the ground that the respondent was not entitied to the exercise of discretion by the trial Court in permitting to make good the deficit court‑fee, as his conduct was negligent and contumacious. The respondent thereupon preferred a regular second appeal, which was allowed by a learned Single Judge of the High Court on 3‑11‑1985. Being aggrieved by the said judgment, the appellant petitioned this Court for leave to appeal, which leave was granted to consider whether deficiency in court‑fee could be allowed to be made up when the respondent had deliberately fixed a nominal court‑fee while instituting the plaint.

4. We have heard the arguments of both the learned counsel for the appellants and the respondents in both the cases. The legal point involved in this case has now been answered by this Court in Siddique Khan v. Abdul Shakoor Khan P L D 1984 S C 289 where it has been laid down that at least one opportunity as of right should be granted to a plaintiff to make up the deficiency in court‑fee, which deficiency has been determined and clearly stated by the High Court in its order for being made good by a certain date. In the instant cases it is conceded that no such clear orders were passed where the trial Court determined the deficiency in court‑fee and granted one clear opportunity to the respondents to make good the same by a particular date. In these circumstances, both the judgments of the Lahore High Court appear to be legal and correct and no exception can be taken to them.

5. In respect of the appeal filed by Muhammad Iqbal and others, appellants, it is submitted that as no pre‑emption decree was passed before 31‑7‑1986, no pre‑emption decree can be passed now. The learned counsel has a substantial ground of attack, but he can take the same before the lower Court.

6. For the foregoing reasons, there being no merit in both the appeals, the same are dismissed. However, Muhammad Iqbal and others, appellants in CA. No.307 of 1985 shall be at liberty to raise before the trial Court the legal objection that no pre‑emption decree can be passed. However, there shall be no order as to costs in both the appeals. A.A./M‑1489/S Appeals dismissed.