1989 PLP 3479 (MLD)

Talib Hussain Rizvi for Respondent. Date of hearing: 7th March, 1989. The facts necessary for the disposal of this civil revision are that the petitioner filed a suit for possession through pre‑emption on the ground of superior right of pre‑emption as he was in enjoyment of common amenities like passage, source of irrigation and that he was owner of land contiguous to the land in dispute. No court‑fee was paid on the plaint on the plea that `Jhar paidawar' was not made available and that the requisite court‑fee will be paid as soon as the statement of net profit was supplied to the petitioner. The learned trial Court vide order dated 27‑6‑1987 directed the petitioner to deposit Rs.50,000 as Zare Punjam and to pay the court‑fee in accordance with the net profit by the next date of hearing which was 30th of July, 1987. The petitioner deposited Rs.50,000 but failed to pay the necessary court‑fee. The learned trial Court on account of non payment of court‑fee rejected the plaint under order 7 rule 11, C.P.C. The petitioner filed an appeal against the order rejecting the plaint with the explanation that the statement of net profit was not supplied to the petitioner. The learned appellate Court dismissed the appeal filed by the petitioner with the observation that he failed to deposit the court‑fee despite the fact that the petitioner was provided with an opportunity to pay the court‑fee and since he moved no application for extension of time for paying the court‑fee, therefore, a valuable right accrued to the respondent which could not be taken away by showing any indulgence to the petitioner for paying the court‑fee. This led to the filing of the present revision petition.

2. Learned counsel for the petitioner in support of this petition argued that the petitioner was not supplied the statement of net profit by 30th of July, 1997 and that the learned trial .fudge acted arbitrarily in rejecting the plaint as failure to make up deficiency in the court‑fee was not due to the fault of the petitioner. Learned counsel relying on Siddique Khan and two others v. Abdul Shakur Khan and another P L D 1984 S C 289 submitted that the plaint could be rejected only when the Court had determined the court‑fee payable and had made a specific direction to pay the same by a specified date and as such the suit deserves to be tried in accordance with law. On merits it was submitted that the plaint contains averment as to the making of talabs in the mode prescribed by Islamic Jurisprudence. In reply the learned counsel for the respondent supported the reasons given by the learned Additional District Judge for affirming the order of rejection of plaint passed by the learned trial Court.

3. I have considered the respective submissions of the learned counsel for the parties and have gone through the record. The facts that the petitioner had submitted an application to supply the statement of net profits before filing the suit and that the said statement had not been supplied to him by 30th of July, i 1987 were not controverted before me. If the factual position is same as noted above, then the petitioner cannot be held responsible for non‑compliance of the order dated 27‑6‑1987. The order rejecting the plaint without making a specific direction to pay the specified court‑fee by a specified date. cannot, therefore, be sustained. The learned trial Court thus erred in law in rejecting the plaint and the learned Additional District Judge equally was not right in upholding the order of rejection of plaint.

4. This brings me to the contention that the plaint contains averments as to the making of talabs in accordance with the mode prescribed by Islamic Jurisprudence. It is true that the plaint contains averment as to the making of the talabs. In view of this averment the suit will have to be tried in accordance with law. Nothing more needs to be said at this stage lest it may prejudice any of the parties as the factual assertion as well as its legal effect ill have to be gone into by the (earned trial Court on the basis of the evidence yet to be produced.

5. For the reasons given above both the orders, dated 30‑7‑1987 and 17‑12‑1987 passed by the learned trial Court and the learned Additional District Judge, Okara, are set aside, the suit shall be treated to be still pending and shall be disposed of in accordance with law. The parties arc, however, left to bear their own costs. The learned Senior Civil Judge, Okara, after summoning the record I from the record room may dispose of the suit himself or transfer it to the Court of competent jurisdiction for disposal in accordance with law. M.Y.H./U‑35/L Case remanded.