1985 PLP 2945 (CLC)

MUHAMMAD AFZAL LONE, J.-- This appeal was disposed of by an ex parte order, dated 10-3-1984 but on the respondent's move, this order has been recalled and the appeal re-heard..

2. The facts are that Mst. Sardar Begum appellant filed a pre-emption suit against the respondents by payment a court-fee of Rs.225 on the plaint. The suit land measures 200 Kanals. There is no controversy that the court-fee paid by the appellant, was, deficient by Rs.5,400, The respondents applied to the learned trial Court, for an order requiring the appellant to pay the requisite court-fee. Earlier, on the basis of the pleadings of the parties, an issue had been framed, as to whether or not the plaint was insufficiently stamped. When the case was at the evidence stage, the learned lower Court by its order, dated 10-9-1977, called upon the appellant to make good the deficiency, by 16-10-1977. She purchased the stamps of the value of Rs.5,400 on 15-10-1977 but submitted the same to the Court on 5-11-1977.

3. On 19-11-1979, the respondents moved another application praying for rejection of the plaint under Order VII, rule 11, C.P.C. on the ground the appellant failed to comply with the orders, dated 10-9-1977, inasmuch as, neither the court-fee was paid within the time specified by the Court nor under section 149, C.P.C. the extension of the time was sought. These submissions of the respondents, prevailed with the learned trial Court. Relying on Muhammad Nawaz Khan v. Muhammad Zaman Khan P L D 1980 Lah. 155, it came to the conclusion that without there being an application under section 149, C.P.C. mere acceptance of the stamp papers, did not amount to enlargement of time. Further, the order, dated 10-9-1977 was dubbed as a mechanical order and in the opinion of the Court below this order was also not complied with. The respondents' application was thus, accepted and the plaint rejected. This rejection is under challenge in this regular first appeal.

4. With the consent of the learned counsel for the parties, the appeal has been heard on the basis of the available record. The explanation given on behalf of the appellant, for not furnishing the stamp papers, to the trial Court within the period fixed by it, is, that Muhammad Ashraf one of the defendants had died; his legal representatives were to be brought on the record and an amended plaint filed. Such a plaint was scribed on the stamp papers in question, and it was tendered to the Court on 5-11-1977. Whether or not this explanation of the appellant is plausible, the fact remains, that under Order VII, rule 11, C.P.C. it was obligatory for the learned trial Court to give the appellant an opportunity to correct the value of the ft suit and pay the requisite court-fee. The omission to file the schedule of net profits with the plaint, by itself cannot attract the penalty of rejection of the plaint. Reference in this connection may be made to Shahna Khan v. Aulia Khan P L D 1984 S C

157. It is in this perspective, that trial Courts' order, dated 10-9-1977 needs to be examined. It is also noteworthy, as already observed, that the appellant purchased the stamp papers, before the target date. The presentation of the same in the Court, was, more or less a ministerial act. The facts of the case thus do not reflect any contumacy on the part of the appellant.

5. For the foregoing reasons we hold that the payment of the deficient court-fee by Me appellant was in order and the learned trial Court fell in error in rejecting the plaint. The appeal is accordingly allowed and the impugned judgment and decree are set aside. The case is remanded to the learned Court below for its decision on merits, after the trial of the suit in accordance with law. The parties are left to bear their on costs. H.B.T.????????????????????????????????????????????????????????????????????????????????????? Regular first appeal allowed.