1994 PLP 124 (MLD)

This revision petition is directed against the order, dated 9-9-1990, passed in vernacular by a learned Additional District Judge, Sahiwal, Mr. Subah Sadiq, rejecting the memorandum of appeal, preferred by Mst. Hamidan Bibi, on having been unsuccessful in her civil suit. Following are the brief facts of the case:

2. Mst. Hamidan Bibi widow of Badar Din claimed to have been in possession of Plot No.256, measuring 1 Marla and 1 Sarsahi, situate near the southern gate of the Grain Market, Sahiwal, included in Katchi Abadi in the survey report, prepared in the year 1974, by the Authorities and pleaded that she was entitled to acquisition of proprietary title thereto. There was some sale-deed executed on 12-10-1981, showing that the said plot had been sold away by her to her late husband's brother Sadar Din. This was described to be a forged document, having fraudulently been procured from her by Sadar Din and was thus (according to Hamidan Bibi) ineffective against her rights and was liable to cancellation. To that effect she sought a declaration, with a consequential relief in the form of an injunction, to have defendant Sadar Din permanently restrained from interfering with her occupation and enjoyment of the plot, upon which she had built a house, by spending huge money. The suit was filed on 16-5-1983. Sadar Din, in January, 1984, instituted a cross suit against Hamidan Bibi, her son Riaz, and two others, Fayyaz and Ilyas, for possession of the plot, alleging that Hamidan Bibi was a head-strong lady, of evil repute, who had expelled her husband from the house, after having developed illicit intimacy with Ilyas, and with his active assistance had illegally occupied the site in dispute in early 1981.

3. Syed Sultan Ahmad, Civil Judge I Class, Sahiwal, by a judgment announced on 8-2-1988, dismissed Hamidan Bibi's suit and decreed Sadar Din's suit, directing Hamidan Bibi to make good deficiency in court-fee, to the tune of Rs.4,500, uptil 8-3-1988. Hamidan Bibi came up in appeal, challenging the judgment and decree, dated 8-2-1988. Sadar Din, respondent in appeal, brought to the notice of the learned Additional District Judge, seized of the appeal, that his adversary Hamidan Bibi had not made payment of the deficient court-fee and her appeal could not proceed. Mst. Hamidan Bibi maintained that market-value of the property in suit had been over assessed by the Trial Court and that she was exempted from payment of court-fee, value of the subject-matter of suit being not more than Rs.20,

000. Subsequently, on 13-6-1990, however, she made a statement in the Court that she was prepared to pay the court-fee in the amount of Rs.4,

500. She was directed to do so, before 25-7-1990. The learned Additional District Judge proceeded on three weeks summer spell, on 25-7-1990, and in his absence the learned Duty Judge adjourned the case to 9-9-1990. By that date even the appellant did not abide, by her undertaking and comply with the direction with the result that she was held entitled to no further indulgence and the memorandum of appeal on that count was treated to be liable to rejection.

4. The learned counsel, appearing for the petitioner, Mst. Hamidan Bibi, urges that the learned Appellate Court below had exercised jurisdiction in the matter illegally and with material irregularity, since the determination made by the learned Trial Court about the value of the property in dispute and the extent of deficiency in court-fee, which she was held liable to pay, was also under challenge in appeal, and she could not be called upto make good the deficiency in the court-fee, as assessed by the Trial Court. The learned counsel forgets that Mst. Hamidan Bibi, appellant before the learned Additional District Judge, had herself given an undertaking that she would make payment of the requisite amount of court-fee, and obviously in the event of reversal of the Trial Court's finding by the learned Appellate Court below, refund of the court-fee amount in question could be ordered; but the appellant was under a legal obligation to make compliance with the direction in question, issued by the learned trial Judge, in the first instance. After having made the commitment, the appellant did not care to fulfil her obligation, and thus was guilty of contumacy in the matter. The only proper order that could be passed by the Appellate Court was the one which was made on 9-9-1990. The impugned order is not susceptible to interference by this Court in exercise of its revisional jurisdiction; and the revision petition is, therefore, dismissed with costs. AA./H-98/L Revision dismissed.