2006 PLP 1934 (SCMR)

JAVED IQBAL, J.

This appeal has been preferred against the judgment, dated 9-7-2004 whereby the R.S.A. preferred on behalf of Shahab Din (respondent) has been accepted by setting aside the judgment passed by the learned Appellate Court on 7-2-1981 and judgment of learned trial Court, dated 15-3-1980 has been restored. 2. "Brief facts of the case are that through a registered agreement to sell, dated 25-9-1974, vendor Irfan Ahmad agreed to sell the property in dispute to the present respondents after having obtained a sum of Rs.82,

000. In pursuance of this agreement to sell the sale-deed was executed on 25-1-1975, which was later on registered on 29-1-1975 after having received balance amount of Rs.80,

000. This sale was sought to be pre-empted by the present petitioner by way of filing instant suit on 28-1-1976. The superior right claimed by the present appellants was that they are tenant on the property in dispute at the time of sale; that they are co-sharers and also owners in estate. The right of being tenant and co-sharers was not pressed into service during the trial. The suit was contested by the respondents. Their claim was that they are tenants at will over the property in dispute at the time of sale, therefore, they had preferential right of pre-emption". The learned trial Court framed issues on the divergent pleadings of the parties and recorded the evidence pro and contra and decreed the suit by means of judgment and decree, dated 15-3-1980. Being aggrieved an appeal was preferred and allowed by the learned District Judge, Multan, by means of judgment and decree, dated 7-2-1981 and the suit filed by Shahab Din (respondent) was dismissed. Being aggrieved Shahab Din (respondent) preferred R.S.A. which has been accepted, hence this appeal on behalf of Muhammad Hanif (appellant).

3. Mr. Talib H. Rizvi, learned Senior Advocate Supreme Court entered appearance on behalf of appellant and contended strenuously that the legal and factual aspects of the controversy have not been appreciated in its true perspective by the learned single Judge of Lahore High Court in chambers which resulted in serious miscarriage of justice. It is argued that the suit preferred on behalf of Shahab Din (respondent) was defective and in violation of the provisions as contained in Order VII, rule 1(i), C.P.C. as the amount qua the value of the suit for the purposes of court-fee was never mentioned and on this score alone it was liable to be dismissed. It is next argued that in spite of proper opportunity afforded by the Court Shahab Din (respondent) failed to make up the deficiency and thereafter the further extension in time by the learned trial Court is not only arbitrary and whimsical but against the objects and reasons of the Court Fees Act, 1870. It is also pointed out that extension of time was a mechanical exercise by the learned trial Court without having examined the relevant provisions of C.P.C. and Court Fees Act, 1870. It is-urged with vehemence that the evidence led by the appellant (D.W.5) wherein a categoric mention was made that they were tenants of the land which aspect of the matter escaped notice of the learned single Judge in chambers which caused grave prejudice against the appellant. On the point of deficiency qua court-fee reliance has been placed on Mubarak Ahmad v. Hassan Muhammad 2001 SCMR 1868.

4. Mr. Abdul Sattar Goraya, learned Advocate Supreme Court entered appearance on behalf of respondent and supported the judgment impugned for the reasons enumerated therein with the further submission that the learned trial Court has exercised its discretion judiciously while granting extension in time for making up the deficiency in court-fee and in the absence of any contumacy the question of any objection should have not been raised.

5. We have carefully scanned the entire evidence with the eminent assistance of learned counsel and perused the judgment impugned carefully. It transpired from the scrutiny of record and the evidence as led by the appellant that his entire claim hinges upon the plea that the order passed by the District Collector on 1-1-1980 (Exh.P.4) was set aside and resultantly they had acquired the status of tenant with possession of the land in dispute which, however, was rebutted by the respondent. In order to get the controversy set at naught the parties were allowed to produce relevant Revenue Record to ascertain the exact position which is indicative of the fact that order passed by the District Collector on 1-1-1980 was never set aside but the same was kept intact and the appeal filed by the appellant was rejected and revision petition also met the same fate by means of order, dated 10-4-1985 passed by learned Member Board of Revenue. In fact the appellant had claimed preferential rights qua the land in question on the basis of Khasra Girdawari which hardly renders any assistance to their case because they have obtained the possession on 29-1-1975 after having purchased the land in question meaning thereby that it was not in their possession prior to the sale. It must, however, not be lost sight of that the names of appellants were deleted showing their possession from Khasra Girdawari by means of order, dated 1-1-1980 which attained finality as the appeal preferred on behalf of the appellant was dismissed by the Member Board of Revenue on 10-4-1982 and therefore, admittedly they had lost the status of tenant as they were not in possession of the land in question at the time of sale. It is to be noted that the right of co-sharer was abandoned by the appellant during trial.

6. We have also adverted to the contention as canvassed at bar by the learned Advocate Supreme Court on behalf of appellant that the question of deficiency of court-fee could not have been dilated upon properly and no extension in time for making up the deficiency could have been afforded to the respondent on second occasion who failed to comply with the orders of learned trial Court dated 30-1-1976 and needful could not be done by 13-3-1976 and without any application for the extension of time the learned trial Court had exercised the jurisdiction in an arbitrary and whimsical manner. At the first glance the above contention seems to be convincing but it has been made in oblivion of the fact that there was cogent reasoning for extension in time as the schedule of net profit was not made available to Shahab Din (respondent-plaintiff) till 13-3-1976 and as such time was extended till 22-3-1976. It transpired from the scrutiny of record that the schedule of net profit was handed over to the plaintiff on 17-3-1976 and the deficient amount of court-fee i.e. 7,565 was paid by the respondent-plaintiff on 23-3-1976. The learned High Court has rightly relied upon the dictum laid down in case Siddique Khan v. Abdul Shakur Khan PLD 1984 SC 289 while discussing the question of' court-fee wherein it was held that "first appeal could not have been rejected as time-barred on account of the so-called deficiency in court-fee -- it could be dismissed only if, as it was held in Shah Nawaz and 6 others v. Muhammad Yousaf and 3 others 1972 SCMR 179 a party was found guilty of `contumacy' of `positive mala fide' in paying deficient court-fee".

7. In the light of what has been stated above we are of the considered view that the well based determination of the learned trial Court has rightly been upheld by the learned High Court vide judgment impugned which being unexceptionable does not warrant interference. The appeal being devoid of merit is dismissed. M.H./M-126/SC Appeal dismissed.