1979 PLP 7 (SCMR)

MUHAMMAD AKRAM, J.‑Muhammad Musa petitioner herein and Jamal Muhammad respondent No. 1 filed two rival suits in the trial Court for possession of the land in dispute by pre‑emption on the ground that they were co‑owners in the village. The proceedings in the two suits were consolidated and tried together. On the 13th of November 1975, the trial Court observed that respondent No. 1 had failed to produce the latest Jamabandi to establish that he was an owner of the estate on the date of the impugned sale and also found that he had failed to make up the deficiency in the court‑fee on the plaint within time and consequently rejected his plaint and dismissed the suit. The trial Court, however, decreed the suit of Muhammad Musa petitioner. On this respondent No. 1 went up in appeal against the order and decree passed by the trial Court. The Additional District Judge, Dera Ghazi Khan, allowed the requested of respondent No. 1 herein for permission to produce additional evidence in the form of the latest Jamabandi for the year 1973‑74 in proof of his superior right to pre‑empt the sale and also observed that the trial Court had failed to issue any specific direction to him to deposit a specific amount of court‑fee by the given date and therefore, was not justified in applying the punitive provisions contained in rule 11, Order VII of the Code of Civil Procedure. In consequence in accepting the appeal of the respondent the lower appellate Court remanded the case to the trial Court for a fresh decision in accordance with the law. Muhammad Musa petitioner preferred an appeal against the order which was, however, dismissed in limine in Chambers by a learned Single Judge of the Lahore High Court at Lahore on the 1st of February 1978. He was of the opinion that the lower appellate Court was justified in allowing additional evidence to the adduced by the plaintiff respondent No. 1 in accordance with the provisions contained in rule 27, Order LXI of the Code. In these circumstances the petitioner has filed the above petition for special leave from the impugned order remanding the case to the trial Court. Before us the learned counsel has laid a great stress to contend that in the circumstances of this case the Additional District Judge was not justified in reversing the finding of the trial Court to the effect that the plaintiff‑respondent No. 1 had failed to make up the deficiency in the court‑fee within time and in rejecting his plaint on that ground. In that connection however, the learned Additional District Judge in reversing the finding was of the opinion that the trial Court having failed to issue any specific direction for the deposit of specific amount to make up the deficiency in the court‑fee was not justified in rejecting the plaint by applying the punitive provisions contained in rule 11 of Order VII of the Code. This finding on the Additional District Judge on the issue was not even challenged by the petitioner at the hearing before the learned Single Judge in the High Court and his order is altogether silent about it. In this petition for special leave before us there is no mention that the petitioner had in fact raised this plea at the hearing and that the learned Judge had failed to advert to the same. Moreover even the Additional District Judge in remanding the case has left it to the trial Court to make a fresh order "if it considers that correct amount of the court‑fee has not been supplied so far". Before us the learned counsel did not question the validity of the order passed by the High Court in admitting additional evidence relied upon by the respondent in accordance with Order LXI, rule 27 of the Code. For the foregoing reasons this petition does not call for any interference in these proceedings, and is therefore, dismissed. Petition dismissed.