1984 PLP 2138 (CLC)

Riaz Kayani for Respondent, Date of hearing : 26th October, 1983. Shafqat Ullah respondent instituted a suit for possession of land measuring 168 Kanals 13 Marlas by exercising his right of pre‑emption against the appellants/vendees.

2. During the pendency of the suit on 20th November, 1979 the appellants moved an application under Order VII, rule 11, C. P. C. seeking rejection of the plaint on the ground that the plaintiff deficiency stamped the plaint and did not pay court‑fee during the time allowed by the trial Court. The learned Civil Judge vide his order, dated 22nd January; 1980 allowed the application and rejected the plaint under Order VII rule 11, C. P. C. The respondent assailed the aforesaid order in appeal which was accepted, on 17th December, 1981 by the learned Additional District Judge, Sheikhupura and the judgment and decree under appeal was set aside. He, however, remanded the case to the learned trial Court with the direction to dispose of the suit on the issue already framed, fix specific amount for the valuation of the suit for the purposes of court‑fee and jurisdiction, and allow time to the plaintiff to make up the deficiency. The appellants feeling aggrieved against the aforesaid order have come up in appeal before this Court.

3. Learned counsel for the appellants contended that the appellants raised an objection before the learned District Judge that the valuation of the suit for the purposes of court‑fee was fixed by the learned lower appellate Court at Rs. 44,440 and court‑fee stamp of Rs. 3,337 should have been affixed on the memorandum of appeal but the respondent had fixed the court‑fee stamp of the value of Rs. 2.663. The appeal was, therefore, not competent on account of the same being deficiently stamped. The learned District Judge vide, order dated 8th March, 1981 allowed the respondent to make up the, deficiency, before 16th March, 1981 subject to all just exceptions. It was stated that the learned District Judge while disposing of the appeal on merits did not advert to this point in the impugned judgment despite the same had been raised by the learned counsel for the appellants. The perusal of the impugned order shows that this point was not attended to by the learned District Judge while disposing of the appeal.

4. Learned counsel for the respondents could not controvert the argument advanced by his adversary.

5. In view of the fact that the learned District Judge vide his order dated 8th March, 1981 allowed the plaintiffs/appellants to make up the deficiency in the court‑fee paid on memorandum of appeal, subject to all just exceptions, it was necessary for him to have adjudicated upon 'A the maintainability of the appeal as he showed indulgence in favour of the respondent after the expiry of limitation for filing the appeal. Undoubtedly, he did not decide this point while disposing of the appeal. There is sufficient force in the contention raised by learned counsel for the appellants that this important point was bye‑passed by the learned lower appellate Court while passing the impugned order.

6. In the result this appeal is allowed on this point alone and the impugned order is set aside with a direction to the learned lower appellate Court to re‑hear the appeal and decide the matter in the light of the observations made above.

7. The parties are directed to appear before the learned District Judge on 6th November, 1983. M . B . A. Appeal accepted.