2014 PLP 522 (MLD)

M. SOHAIL IQBAL BHATTI, J.

The instant writ petition has been filed against order dated 7-5-2013 passed in civil revision by the learned Addl. District Judge, Rawalpindi Camp at Kahota.

2. The facts giving rise to the filing of the present writ petition are that a final judgment and decree was passed in suit for possession through partition by the learned Civil Judge 3rd Class on 13-4-2010 with the condition that the value of the land per Kanal be fixed at Rs.1,00,000 and the plaintiffs (respondents Nos.1 and 2 in the present writ petition) were directed to deposit the requisite court-fee (erroneously), as the order should have been passed regarding submission of stamp duty within one month.

3. Aggrieved by the judgment and decree an appeal was filed which was dismissed on 2-2-2011 by the learned Addl. District Judge, Rawalpindi Camp at Kahota but no time was fixed for the deposit of stamp duty. Thereafter, an application was filed on 6-11-2012 for permission to deposit the requisite stamp duty which was dismissed on 8-12-2012. Aggrieved by the order dated 8-12-2012 a revision petition was filed by the present respondents as well as an application was filed for correction of judgment and decree dated 2-2-2011. The learned Addl. District Judge accepted the application for correction of judgment and decree vide order dated 7-5-2013 and respondents Nos.1 and 2 were allowed to deposit the requisite stamp duty at the rate of 2% and the revision petition directed against the order dated 8-12-2012 was also accepted and a period of 30 days was allowed to respondents to deposit the requisite stamp duty. The instant writ petition has been filed against the order dated 7-5-2013 as having been passed without lawful authority.

4. Learned counsel for the petitioner has argued that once respondents Nos.1 and 2 were directed to deposit the requisite stamp duty through judgment and decree dated 13-4-2010 within a period of 30 days, therefore, after lapse of the said period the suit for possession through partition stood dismissed. It was further argued that there was an inordinate delay in filing of an application before the learned Civil Judge for the permission to deposit the requisite stamp duty.

5. After hearing the arguments of the learned counsel for the petitioner I am of the view that after passing the judgment and decree dated 13-4-2010 an appeal was filed by respondents Nos.1 and 2 in which the judgment was passed by the learned Addl. District Judge, Rawalpindi Camp at Kahota on 2-2-2011 dismissing the appeal. However, a direction was made to the respondents Nos.1 and 2 to deposit the stamp duty at the rate of 3% but in the appellate judgment and decree no time period was fixed. The judgment and decree of the learned trial Court had merged into the judgment and decree passed by the appellate Court on 2-2-2011, therefore, it can be safely observed that the condition for depositing the requisite stamp duty within the period of 30 days was no more in existence. Moreover, I am of the view that suit for possession through partition is one of the unique kind of remedies where the cause of action is recurring/continuous as the title already exists in the name of plaintiff as co-owner and purpose of suit for partition is just to separate his share. Parties cannot be non-suited and cannot be put to the agony of prolonged litigation especially in this case where the condition imposed by the learned Civil Judge had already been merged in the appellate judgment and decree. Even otherwise the courts are vested with inherent jurisdiction under section 148 of the C.P.C. to extend/enlarge time for doing of a certain act. (Although in the present case no time was fixed in consequence to the judgment passed by the learned appellate court.)

6. In this view of the matter, the instant writ petition is dismissed in limine being without merits. AG/Z-28/L Petition dismissed.