1985 PLP 592 (SCMR)

M.S.H. QURAISHI, J.‑‑ This petition raises the question whether the pre‑emption suit of the plaintiffs (respondents 1 and 2) ought to have been dismissed for late supply of deficiency in court‑fee. The suit had been filed on 27‑4‑1975 .and the trial Court had, without determining the deficiency, directed that the same be made up by 10‑6‑1975. This order was not complied with and on 9‑1‑1976 the suit was consolidated with another suit of rival pre‑emptors (respondents 3 to 6) and another date, that is, 28‑4‑1976, was given for making up the deficiency. On this latter date, the plaintiffs moved an application under section 149, C . P. C . but the application was rejected on 5‑5‑1976 and simultaneously the plaint was rejected under Order VII, rule 11, C.P.C. The plaintiffs, however, succeeded before the appellate Court, which by its judgment dated 30‑11‑1977 remanded the case with a direction for determining the deficiency in court‑fee and then calling upon the plaintiffs to make up the deficiency within a time to be fixed by the trial Court. The trial Court after doing the needful gave the plaintiffs time upto 22‑3‑1978 and it is not disputed that the deficiency was made good within that time. The trial Court, however, upon the view that the mechanical orders of Court directing making up of deficiency in court‑fee did not destroy the plea of limitation and that the rights which had accrued to the defendant on account of the plaintiffs' default in making up the deficiency had not been prejudiced by the order of remand, dismissed the suit as time‑barred. For, this, it relied on a judgment of this Court reported as Walayat Khan v. Khalil Khan, PLD 1979 S C

821. The, plaintiffs' appeal, however, succeeded as the learned District Judge held that the act of the plaintiffs could not be deemed to be contumacious. The defendant/ petitioner moved a second appeal in the High Court but the same was dismissed in limine as being without any force.

2. The authority in Walayat Khan v. Khalil Khan (supra) as rightly held by the first appellate Court, could not be invoked because there the pre‑emptor had. in spite of the direction of the Court, failed to make up the deficiency in court‑fee in time. In the instant case, the order of remand dated 30‑11‑1977 having not been agitated, the same had acquired a finality as such the trial Court was bound to ascertain the deficiency and then give time to the plaintiffs to make up the deficiency, which having been done and the plaintiffs having complied with the order within time the defect in the plaint was deemed to have been removed from the date it had been originally filed in Court. There is, therefore, no merit in this petition, which is hereby dismissed. S . Q .????????????????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.