1994CLC29 (PLP)

‑‑‑‑O.XLI, Rr. 3 and 23 & S.115‑‑‑Revisional jurisdiction, exercise of‑‑‑Appeal was not decided on merits but was dismissed solely on non‑payment of requisite court‑fee‑‑‑High Court in exercise of revisional jurisdiction left questions of merit for decision by lower Appellate Court while confining its revisional jurisdiction to sole point touching the question of non‑payment of requisite court‑fee in appeal and consequential legal effect thereof. (c) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑‑S. 115 & O.XLI, R.3‑‑‑Revisional jurisdiction‑‑‑Dismissal of appeal for non‑payment of requisite court‑fee‑‑‑Case was remanded to lower Appellate Court with direction for allowing opportunity to petitioner to make good the deficient court‑fee by a date to be fixed by lower Appellate Court and upon fulfilment of deficiency, hearing of appeal and decision thereof, on merits in accordance with law. Syed Seerat Hussain Naqvi for Petitioner. M. Aftab Iqbal Chaudhry for Respondents. Date of hearing: 2nd October, 1993. This application in revision under section 115 of Civil P.C. by the plaintiff in a pre‑emption suit was against an order of learned Additional District Judge, Gujrat, dated 22‑1‑1985, by which plaintiff's appeal for reduction in the sale‑price was dismissed for non‑payment of required court‑fee on it. Facts leading to this civil revision briefly are these. By a deed registered on 4‑7‑1981, 115 Kanals 8 Marlas of agricultural land at village Bahowal in Tehsil and District Gujrat was sold out of a joint Khata by Muhammad Akram and Muhammad Saleem in favour of Haji Muhammad Boota, Bahadur Khan and Muhammad Akbar sons of Lal Khan for the sale price of Rs.4,00,

000. Muhammad Aslam petitioner claimed pre‑emption in respect of the above sale. Pre‑emption suit was instituted by him, on 3‑5‑1982. Right of pre‑emption was based on the grounds of being a real brother of the vendors and co‑sharer in the joint Khata. It was averred that the land was, in fact, sold for Rs.2,00,000 only and the inflated sale price was shown in the sale deed merely to ward off pre‑emption. Vendees submitted their written statement and controverted the averments in the plaint of the pre‑emption suit. Trial Court settled necessary issues in the case and took evidence from the parties on them. Upon review of the record, the trial Court decreed the pre emption suit on 23‑10‑1984 in favour of the pre‑emptor, subject to his paying Rs.4,30,000 as the purchase price for the land to the vendee‑respondents on or before 22‑12‑1984. In default, the pre‑emption suit was considered to have been dismissed. Rupees four lacs was the sale price and 1160,000 represented miscellaneous expenses on completion of the sale. Pre‑emptor preferred an appeal in the lower appellate Court for reduction of the purchase price to Rs.2,30,000 and paid a court‑fee of Rs.3,750 on the memorandum of appeal. Lower appellate Court found that the memorandum of appeal was deficiently stamped and held that in all, a court fee of Rs.15,000 was required to be paid and affixed on it. Since the appellant failed to pay the deficit court‑fee, his appeal was dismissed on this score. Merits of the appeal were not touched. Thereupon, a petition in revision was fled in this Court for setting aside the impugned order passed by the Court below. It was not disputed that on subject‑matter in dispute in appeal which covered reduction in the purchase price by a sum of Rs.2,00,000, the appellant was liable to pay ad valorem court‑fee. Admittedly, the court‑fee payable on the memorandum of appeal in the lower Appellate Court was Rs.15,

000. A sum of Rs3,750 was already paid as court‑fee upon the memorandum of appeal. The court‑fee paid was deficient by Rs.11,

250. Without affording a chance to make good the deficit court‑fee, the appeal was dismissed by learned Additional District Judge. In law, he could not do it. It was settled proposition of law that before dismissing the appeal on account of deficit payment of court fee, the Court was required to allow an opportunity to the defaulter to make it good for validating his memorandum of appeal. It was an agreed premise that the required opportunity for making good the deficit court‑fee was not given. On account of it, impugned order was not sustainable. It may be noticed that here in this Court, petitioner conceded for full payment of Rs.4,30,000 to the respondents for sustaining pre‑emption decree in his favour and requested for extension of time for making the deposit of balance purchase price in the treasury. In this behalf, he relied upon the case of Bhai Khan v. Allah Bakhsh ‑and another 1986 SCMR

849. As against this, learned counsel for the respondents submitted that in default of the deposit of full decretal amount in time fixed in the decree of the trial Court, pre‑emption suit shall be deemed to have been dismissed and, therefore, without looking, into the relevant circumstances, the time for deposit of the balance decretal amount could not be justifiably extended. Proper material for exercise of discretion to extend the time was not available on record. It was also submitted that since the appeal in the lower appellate Court was not adjudicated upon its merits, the question for pension of time must be left to its decision. Seen from the above, appeal preferred by the petitioner for claiming reduction in the purchase price was dismissed solely on account of less payment of court‑fee on it. Its merits were not examined. It included question regarding effect of non‑deposit of the purchase‑price in time fixed in the decree by the trial Court and also the question relatable to jurisdiction of the Court to extend time for deposit of the decretal amount. These and other questions were undecided so far. Therefore, it shall be an appropriate exercise of jurisdiction to first leave them for decision of the lower appellate Court and confine the exercise of jurisdiction in revision to the sole point touching the question of less payment of court‑fee on appeal and its consequential legal effect. Upon the above view, I would, therefore, accept the petition, set aside the impugned order dismissing the appeal by learned Additional District Judge, Gujrat and direct for allowing an opportunity to the petitioner to make good the deficit court‑fee by a date to be fixed by the lower appellate Court and upon fulfillment of the deficiency, hear the appeal and decide it on merits in accordance with the law. Parties have been called upon to appear in the ' Court of learned District Judge, 'Gujrat on 16‑10‑1993, who shall make an order for further hearing of the appeal either by himself or by any Additional District Judge in the district. Costs shall abide the event. Records shall be returned, AA./M‑1175/L Case remanded