1985 PLP 274 (CLC)

(a) Civil Procedure Code (V of 1908)‑‑ ‑‑‑Ss. 148 & 149, O.VII, r.11‑‑Punjab Pre‑emption Act (I of 1913), S.15‑‑Court‑fee‑‑Determination of amount‑‑Court before rejection of plaint is obliged to determine and specify amount of court‑fee payable/ leviable on plaint and incorporate same in direction asking plaintiff to comply with same within a certain specified period‑‑Plaintiff failing to comply with direction of Court within specified period‑‑Court can penalise plaintiff and reject his plaint‑‑Determination of court‑fee could not be safely left to hands of plaintiff. Karim Bakhsh v. Qadir Bakhsh and another P L D 1954 Lah. 228; Muhammad and 2 others v. Mubarik Ali and another P L D 1977 Lah. 1422 and Malik Jan Muhammad v. Shukur‑ud‑Din and 6 others 1980 C L C 186 ref . Muhammad Ali v. Allah Ditta and 4 others P L D 1979 Lah. 763; Muhammad Hussain v. Muhammad Amir and another 1984 C L C 1469 and Malik Jan Muhammad v. Shukarud‑Din and 6 others 1980 C L C 186 rel. (b) Civil Procedure Code (V of 1908)‑‑ ‑‑‑S. 148, 149 & O.VII, r. 11‑‑Punjab Pre‑emption Act (1 of 1913), S.15‑‑Court‑fee‑‑Plaint‑‑Trial Court failing to determine and specify amount of court‑fee and plaintiff supplying deficiency though calculated on Annual Lease Money instead of Annual Net Profits‑‑Trial Court rejecting plaint‑‑Order of rejection., held, uncalled for‑‑Plaintiff could not be penalised and his plaint could not be rejected by Court without first giving him a direction to supply specified amount of court‑fee and his default in its compliance. Khurshid v. Pir Bakhsh and 7 others 1983 C L C 195; Mst. Parveen v. Jamsheda Begum P L D 1983 S C 227 and Siddique Khan and 2 others v. Abdul Shakoor Khan and another P L D 1984 S C 289 rel. (c) Punjab Pre‑emption Act (I of 1913)‑‑ ‑‑‑S.15‑‑Civil Procedure Code (V of 1908), O.VII, r.11‑‑Right of pre‑emption‑‑Law of pre‑emption having strong moorings in Islamic juris prudence‑‑Right of pre‑emption, held, could not be said to have not been looked with favour by Courts‑‑Law of pre‑emption so long adorning statute book, Courts have got to respect same and enforce, as it is, and its provisions could not be whittled down on plane of artificial considerations. Siddique Khan and 2 others v. Abdul Shakoor Khan and another P L D 1984 S C 289 and Malik Jan Muhammad v. Shukaruddin etc. 1980 C L C 186 rel. (d) Court Fees Act (VII of 1870)‑‑ ‑‑‑Preamble‑‑Purpose‑‑Purpose of Court Fees Act, is to secure revenue for State and not to arm litigant public with a weapon of technicality to be used against their adversaries‑‑Court Fees Act, 1870 should not be used to throw out a litigant who comes to seek relief and redress from Court. (e) Court Fees Act (VII of 1870)‑‑ ‑‑‑Preamble‑‑Court‑fee‑‑Exemption‑‑Sacred duty of State, is to provide justice free of cost to all those seeking same from Court. (f) Civil Procedure Code (V of 1908) ‑‑‑O.VII, r.11‑‑Punjab Pre‑emption Act (I of 1913), S.15‑‑Court‑fee ‑‑Pre‑emption suit‑‑Trial Court finding suit incorrectly valued and under‑assessed and rejecting plaint‑‑Appellate Court remanding case to trial court for requiring plaintiff to make up deficiency in court‑fee‑ Order of appellate court upheld with remarks that it would have been better if remand order had been avoided, to save time and expenses, and appellate court decided matter itself.‑‑[ Court‑fee]. Ahmad Bakhsh v. Muhammad Aslam 1982 C L C 425; Khurshid v. Pir Bakhsh and 7 others 1983 C L C 195; Mst. Walayat Khatun v. Khalil Khan and another P L D 1979 S C 821 and Siddique Khan and 2 others v. Abdul Shakoor Khan and another P L D 1984 S C 289 ref. This is an appeal against the remand order arising out of pre‑emption suit. Land measuring 50 Kanals 8 Marlas was purchased by Rashid Ahmad and another for an ostensible sale consideration of Rs.1,20,000 through Registered Sale‑Deed, dated 3‑2‑1976 Khurshid Ahmad Khawar and another pre‑empted the sale of land abovestated through a civil suit. Number of issues covering the controversy including the one relating to assessment of the plaint for the purposes of court‑fee and jurisdiction were framed by the trial Court. For facility of reference issues framed by the trial Court are reproduced:‑ (1) Whether the suit cannot proceed in view of preliminary objection No.1? O.P.D. (2) Whether the suit has been incorrectly valuated for the purpose of court‑fee and jurisdiction? If so, what is the correct valuation? O. P. D. (3) Whether the plaintiffs are estopped by their acts and conduct to file the suit? O.P.D. (4) Whether the plaintiffs have superior right of pre‑emption as against the defendants‑vendees? (5) Whether the ostensible sale price of Rs. 1,20,000 was fixed in good faith or actually paid? (6) If issue No.5 is not proved then what was the market value of the suit land at the time of sale? O.P. Parties. 7 . Relief.

3. Trial Court found all the issues except issues Nos.2 and 5 in favour of the plaintiffs. Under issue No.2 it was observed that the suit was incorrectly valued and was under‑assessed. The Court also found that the entire sum mentioned in the Registered Sale‑Deed was actually fixed in good faith and paid to the vendor. As a result of finding on issue No.2, the plaint was rejected under Order VII, rule 11 of the Code of Civil Procedure, vide order, dated 21‑3‑1983. The unsuccessful plaintiffs/ pre‑emptors, challenged the correctness of judgment in appeal before learned District Judge, Toba Tek Singh. Civil appeal was, in course of time, entrusted for decision to the learned Additional District Judge of the same District. First Appellate Court did not find itself in agreement with the findings recorded on issue No.2 by the trial Court, consequently reversed it and remanded the suit with the following observations vide order, dated 23‑7‑1984:‑ "I remand the case with these directions that learned lower Court after determining the proper court‑fee on the basis of Jehar Paidawar of crops Rabi 1976 and Kharif 1976 relating to the preceding year should require the appellants to make up the deficiency in requisite court‑fee and decide this issue accordingly. In case of non‑compliance of directions of the lower Court by the plaintiffs /appellants, learned lower Court shall be at liberty to proceed in accordance with law. Parties are directed to appear before learned lower Court on 2‑9‑1984. Parties to bear their own costs."

4. Feeling aggrieved by the order of remand, appellants have come up in appeal to this Court.

5. I have heard learned counsel for the appellants at length and examined the available material. It was contended by learned counsel, that the plaintiffs were under a legal obligation to file statement of Net Profits accruing from the land subject‑matter of pre‑emption claim, in the year preceding the presentation of plaint and then assess the plaint on 15 times such net profits and make good the deficiency in court‑fees. They were in knowledge of the sale and had full one year at their disposal to obtain the relevant documents necessary for the preparation of the Annual Statement of Net Profits from the Revenue Officials. No explanation worth the name was offered by the plaintiffs/ pre‑emptors as to what efforts were made by them in this connection. Absence of any explanation in the plaint goes a long way to indicate their negligence. Even application was not presented alongwith the plaint at the time of the institution of the civil suit explaining the causes for not filing the statement of annual net profits and the consequent under assessment of the suit and payment of requisite amount of court‑fees. Learned counsel vehemently asserted that Courts do not lean in favour of a pre‑emptor who chooses to dislodge a bona fide vendee through the exercise of a right which has been described in judicial pronounce ments of the superior Courts on more than one occasion to be have been based on sheer piracy. No equities are involved in favour of the pre‑emptor, as the exercise of the right, though statutorily recognized, operates as a restraint on the freedom of contract in the disposal of real property. Courts, therefore, according to learned counsel, do not look with favour on the pre‑emption rights. It is also contended that the plaint which does not bear the requisite amount of court‑fee stamps is not a valid document to be acted upon, for the suit becomes legally instituted, when a proper plaint with requisite amount of court‑fee affixed thereon is presented before a Court or an officer competent to receive it. Closely linked with the inadequacy of court‑fee, is the question of limitation. Learned counsel has strenuously contended that the unexplained lapse on the part of the pre‑emptor, has equipped, the vendees with a valuable right which made their title in defeasible. The vendees could not, therefore, have been lightly deprived of this valuable right. Learned counsel stressed with vehemence, that why, after all, the Court should come to the help and rescue of such a negligent litigant who himself had no care for his own rights. Secondly, learned counsel contended that in a pre‑emption suit, valuation of the suit for the purposes of court‑fee is determined with reference to 15 times of Annual Net Profits and if the plaintiffs do not supply the requisite particulars, like Annual Statement of net profits, how can the trial court determine such valuation, unaided by itself, before the defendants are summoned and appear before the Court. In the estimation of learned counsel, the trial Court is neither bound nor required to specify the exact amount of court‑fee payable while making, a direction under Order VII, rule 11, clauses (b) and (c) of the Code of Civil Procedure. If such a view as taken by the appellate Court is accepted it will make the Court helpless and will be putting a premium on the negligence of the plaintiff. This will be contrary to well‑known and well‑settled principle of law that no person shall be allowed to reap advantage of his own wrong. Learned counsel also contended that the remand order is outcome of grossly irregular exercise of jurisdiction. He has supported his contention by reference to the following authorities: (1) Ahmad Bakhsh v.Muhammad Aslam 1982 C L C 425. (2) Khurshid v. Pir Bakhsh and 7 others 1983 C L C 195. (3) Mst. Walayat Khatun v. Khalil Khan and another P L D 1979 SC821. (4) Siddique Khan and 2 others v. Abdul Shakoor Khan and another P L D 1984 S C 289.

6. I have carefully attended to the submissions made at the bar. For proper appreciation of the controversy requiring resolution in relation to the contentions raised, following facts may briefly be taken note of. The suit in the instant case was instituted on 27‑1‑1977. Para 9 of the plaint reads:‑ On 28‑1‑1977, the trial Court passed the following interim order:‑ "Register. Summon the defendants for 13‑4‑1977. It has been contended that Rs.50,000 were actually paid as the sale price. To appreciate the seriousness of the plaintiffs in filing the suit, Rs.10,000 as Zar‑e‑Panjum be deposited in Court before the next date. Deficiency in court‑fee should also be made good in the meanwhile."

7. Plaintiffs, before 13‑4‑1977, filed Court Fee stamps worth Rs.3,008 valued at 15 times of lease money i.e. Rs.2,700 per annum. They also applied to make up the deficiency in court‑fee even according Jo the statement of annual net profits Exh.D.1 furnished by the defendants. However, the trial Court did not pass any definitive order up9n the said application of the plaintiffs/ pre‑emptors, and allowed the suit to proceed to its final stage.

8. In this background point requiring decision in the present appeal is whether the plaint could have been ejected under Order VII, rule 11 clauses (b) and (c) without the Court having first determined /ascertained the exact amount of court‑fees payable and then asking the plaintiffs to make good deficiency within a time to be specified or that the matter relating to determination of the court‑fee could have been left to the judgment of the plaintiffs. Secondly whether there is any element of contumacy or negligence involved in the circumstances of the present case so as to debar the plaintiffs from proceeding with their suit and deprive them of all their efforts made in the prosecution of the suit till its end. Order VII, rule 11, clauses (b) and (c) read:‑ "11‑‑Rejection of plaint.‑‑The plaint shall be rejected in the following cases:‑ (b) When the relief` claimed is under‑valued and the plain tiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) Where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff on being required by the Court to supply the requisite stamp‑paper within a time to be fixed by the Court, fails to do so;

9. Taking up the contention of the learned counsel for the appellants that the Court is under no obligation to determine/ specify the amount of court‑fee payable /leviable before ordering rejection of the plaint, suffice it to say that not only the provisions of Order VII, rule 11, but the rule of law laid down by the superior courts also support the view that Court has to perform this exercise before it could penaliz the plaintiff in rejecting his plaint. In the case of Karim Bakhsh v Qadir Bakhsh and another P L D 1954 Lah. 228 Mr. Justice B.Z.Kaikaus an eminent Judge of this Court (as his Lordship then was)observed:‑ "While dealing with Saeed Ahmad v. Karam Singh, I said that this was a different kind of case. I would point out here that in the present case the valuation being incorrect and not the court‑fee stamps put on the plaint, in order that the plaintiff may be ordered to pay further court‑fee there is first to be a determination by the Court that the valuation is incorrect. I do not say that a provisional determination could not be made ex parte. The plaintiff could have been ordered to produce the Fard Khalis Munafa but before he was ordered to pay additional court‑fee it was essential that on some basis the Court passed an order fixing the valuation of the suit for the purposes of court‑fee. It was not a proper order to the plaintiff that he should file Fard Khalis Munafa and, at the same time, pay a court‑fee according to the Fard. The plaintiff may have to contest the correctness o that Fard; that Fard might for instance, have recorded half the produce of the land as the proper share of produce and the plaintiff might have said that it was a wrong assumption. It was necessary before ordering the plaintiff to correct the valuation to give a finding about it. This was a case which falls under Order VII, rule 11(b) and not (c) and it is only after the plaintiff has been ordered to correct the valuation and he has failed to do so that the plaint can be rejected. Such an order involves a determination by the Court provisional or otherwise about the valuation of the suit." This view of law was subsequently followed in the case of Muhammad and two others v. Mubarik Ali and another P L D 1977 Lah. 1422 by a learned Single Judge of this Court. However, Mr.Justice Aftab Hussain as his Lordship then was sitting singly dissented from this view in case of Muhammad Ali v. Allah Ditta and 4 others P L D 1979 Lah 763 and in para. 10 of the report observed:‑ "

10. Moreover in my view Order VII, rule 11, cannot be construed in the manner in which it has been construed in the authorities relied upon by the learned counsel for the appellant. Clause (b) of rule 11 says that the plaint shall be rejected where the relief claimed is under‑valued and the plaintiff on being required by the Court to correct the valuation within a time to be fixed by the Court fails to do so. It does not make a reference to the question of ascertainment or determination of the court‑fee. In these circumstances it cannot be laid down as a general proposition of law that the Court must determine the amount of valuation for the purpose of court‑fee and also the amount of court‑fee payable. It depends upon the facts of each case whether such a prior determination would be necessary or not. It is possible that where the court‑fee is payable on the market value of the property and that value may not be ascertainable from any document on record, the Court may be bound to first determine the jurisdictional value on the basis of the evidence to be recorded by it and to ascertain the correct amount of the court‑fee payable. In such a case if the matter is left to the discretion of the plaintiff, the defendant can certainly raise an objection that the valuation fixed by the plaintiff is arbitrary and should not be acted upon. In such a case determination may become necessary. But in a case where a person has to multiply by 15 the amount of net profits determined on a 'Fard Khalis Munafa' determination is altogether furtile. It is duty of the plaintiff to deposit correct court‑fee on that basis unless question be whether the court‑fee is at all determinable on 15 times the amount of net profits. But once it is conceded that it is so determinable and the only question is of the procurement of the 'Fard Khalis Munafa'. The insistence of the plaintiff that the court should first determine the amount of court‑fee by the exercise of multiplication would be absurd. In such a case where it is the duty of the plaintiff to determine the court‑fee valuation on the basis of a 'Fard Khalis Munafa' and he fails to do so, the Courts order for filing that document and also for paying the proper court‑fee on its basis would be unexceptionable. I, therefore, do not subscribe to the view held in the two other authorities relied upon by the learned counsel since in the present case it is a matter where the amount shown in the 'Fard Khalis Munafa' had merely to be multiplied by 15 and the court‑fee to be paid on that amount " The view of the Court under‑went a change in the later years. In the case of Malik Jan Mohammad v. Shukur‑ud‑Din and 6 others 1980 C L C 186, Mr.Justice A.S.Salam who wrote the judgment, observed:‑ "It obviously pre‑supposes that there is already a determination about the required stamp‑papers, insufficiency therein, and the direction to supply the requisite, that is to say, the fall short. It cannot be that the Court may take no steps to determine the facts and issue a general and omnibus direction to supply for non‑compliance, as it does in the provision under discussion by rejection of the plaint; it always lays down with exactitude what is required to be complied with. Therefore, it seems to us that when a Court does not specify what are the requisite stamp‑papers which a plaintiff has to supply but leaves the matter in general terms to make up whatever the deficiency in the court‑fee may be, in the hands of the plaintiff, it cannot invoke its powers under Order VII, rule 11, C.P.C because there is no failure to comply with any definitive direction." I have been able to lay my hands on another precedent case of Muhammad Husssain v. Muhammad Amir and another 1984 C L C 1469 where a learned Single Judge of this Court reiterated the view of this Court taken in Muhammad Ali v. Allah Ditta and 4 others P L D 1979 Lah

763. In view of a Division Bench Judgment in Malik Jan Muhammad v. Shukarud‑Din and 6 others 1980 C L C 186 which is binding upon me sitting singly, I feel no hesitation in saying that the Court is obligated to determine and specify the precise amount of court‑fee payable/ leviable upon the plaint, incorporate this in the direction asking the plaintiff to comply with it within a certain specified period. It is then when he fails to comply, with this direction, that the Court can penalise him and reject the plaint. Time initially granted is further extendable under section 148/149, C.P.C. also subject to the party making out sufficient cause for it. Determination of court‑fee cannot thus been safely left to the hands of the plaintiff. In the case under consideration the trial Court did not determine and specify the amount of court‑fee. Even then, the plaintiff supplied the deficiency though calculated on the Annual Lease Money. It is correct that the assessment should have been based upon the Annual Net Profits accrued from the suit land in the year preceding the institution of suit and not annual lease money for the two are different as held in Khurshid v. Pir Bakhsh and 7 others 1983 C L C 195 but then, unless the amount was specified how could the plaintiff be penalized and his plaint rejected. Our own Supreme Court, if I may be permitted to say so with extreme respect, have, in two recent judgments in Mst. Parveen v. Jamsheda Begum P L D 1983 S C 227, Siddique Khan and two others v. Abdul Shakoor Khan and another P L D 1984 S C 289, has set at rest the long outstanding controversy with regard to court‑fee. These pronounce ments have clearly abridged the deep cleavage of judicial opinion existing on this point. Therefore, it is now a settled view that the plaint cannot be rejected under Order VII, rule 11, clauses (b) and (c) of the Code, unless first a direction is issued by the Court to supply the specified amount of court‑fee and then the plaintiff defaults in its compliance. In Mst. Parveen's case, the Supreme Court observed:‑ "It may also be observed that the learned trial Judge could not reject the plaint under Order VII, rule 11 of the Code of Civil Procedure on the mere discovery that the claim was undervalued unless under clause (b) of rule 11, the plaintiff having been required by the Court to correct the valuation within a time specified by the Court had failed to do so. Similarly regarding insufficiency of court‑fee, the plaint could be rejected under clause (c) of rule 11, if the plaintiffs on being required by the court to supply the requisite stamp‑paper within a time fixed by the Court failed to do so. In both these eventualities, the plaint could have been rejected under Order VII, rule 11, C.P.C. and it would have not been proper without recourse to this provision to dismiss the suit as time barred."

10. I will now address myself to the contention of learned counsel that the pre‑emptive right though statutorily recognized in Punjab, has not been looked upon with favour by the Courts. It is true that in the judicial pronouncements, on more than one occasion, the right has been described as piratical involving no equities in favour of those who chose to exercise and dislodge the vendee. It is also correct that such a judicial approach did exist but now on the high authority of Supreme Court of Pakistan in the case of Siddique Khan and 2 others v. Abdul Shakoor Khan and another P L D 1984 S C 289, the controversy must rest and come to an end. Law of pre‑emption has strong moorings in Islamic Jurisprudence. The Hon'ble Supreme Court observed:‑ "It may be observed that the reason for applying such strict rule of interpretation in some cases of pre‑emption so as to have recourse to section 3 of Limitation Act instead of proper application of Order VII, rule 11(b) and (c) or for that matter sections 148 and 149, C . P. C . and section 28 of Court Fees Act, was the then prevailing motion that right of pre‑emption was predatory. This view suffered considerable change in post‑Partition period in Pakistan. One reason being that it was against Islamic jurisprudence wherein this is a right as much enforceable as any other right and further that it has a connection with the law of inheritance in Islam as was observed by Mahmood, J. in Gobind Dayal v. Inayatullah, at P.782 as follows:‑ "Upon the present occasion it is unnecessary to consider whether "gift" can properly be described as a "religious usage or institution" within the meaning of section

24. I am here concerned only with the question whether pre emption can be so described. My own opinion is that it can, and although I cannot add much to the reasons given by Spankie, J. I may observe that pre‑emption is closely connected with the Muhammadan Law of inheritance. That law was founded by the Prophet upon republican principles, at a time when the modern democratic conception of equality and division of property was unknown even in the most advanced countries of Europe." This Court has also adopted the rule that a pre‑emptor cannot be disallowed a relief or prayer on account of any such like notion. See Allah Ditta v. Muhammad Ali and Hadayat Ullah v. Murad Ali Khan. Similarly, the approach in this behalf in a recent case Jan Muhammad v. Shukeruddin is to the same effect. Thus, it would be no more lawful to deprive a plaintiff or appellant of any relief simply because it happens to be a pre‑emption matter. The law as it is, has to be applied without any such consideration. Otherwise it would, besides other consequences, also negate the relevant (Article 31) principle of policy contained in the Constitution, which is not permissible". Similarly in case of Malik Jan Muhammad v. Shukaruddin etc. 1980 C L C 186, Mr. Justice A.S.Salam an eminent Judge of this Court taking note of this aspect of Pre‑emption Law observed:‑ "The learned trial Court has relied on Saeed Ahmad and others v. Karam Singh and another and Maulvi Ahmad Yar v. Mst. Hajran for the proposition that the right of pre‑emption is a predatory right which constitutes a drawback on the recognised principle of freedom of contract and further that it should not be protected from defeat on technical or legal defect. No doubt, the learned trial Court has relied on high authorities of eminence and one feigns to appear to think differently but the duty appears to call that another aspect of the matter may also be taken notice of and that is that the right of pre‑emption has been recognized in one form or another in almost all settled societies from times immemorial and is a prominent part of the Islamic Law laid down nearly fifteen centuries ago and has been applied in the Sub‑Continent for many centuries. See the illuminating and instructive judgment of Mahmood J. in the Full Bench case of Gobind Dayal v. Inayatullah, etc. and referred to in Allah Ditta v. Fateh Khan and others. It has been enacted by the legislature into an Act in the Province of Punjab. To call this law, predatory, which means, according to Concise Oxford Dictionary, 'addicted to, plunder or robbery' is rather. too strong. The fact that it constituted a drawback on the recognised principle of freedom of contract and that is its blemish would hardly hold water because the principle of freedom of contract itself a product of the laissez faire era has lost its vitality in a short span of time. On the other hand, the principle on which the right of pre‑emption rests has held the field throughout the centuries and is an existing and enforceable law. All this discussion, however, does not mean or involve that the right of pre‑emption is to be given effect to even if the pre‑emptor does not invoke it, or, comply with the provisions of law applicable thereto." Therefore, so long as the Law of Pre‑emption adorns the Statute Book of this country, Courts have got to respect it and enforce it as it is. Its provisions cannot be whittled down on the plane of artificial considerations. Apart from the above, there is no element of contumacy or negligence involved in the conduct of the respondents‑pre‑emptors. The provisions of the Court Fees Act, 1870, as its name suggests and imports is a statute, primarily passed for the purposes of prescribing fees which are to be paid in respect of documents including plaint and ' memorandum of appeal, to be used in courts. Its sole purpose is to secure revenue for the State and not to arm the litigant public with a weapon of technicality to be used against their adversaries. If this being the purpose of the Law of Court Fee which undisputably it is, it ought not to be used to throw out a litigant, who has come to seek relief and redress from the Court. Recent legislation in this country granting exemption of court‑fee upon claims upto a level of Rs.25,000 also is a pointer in this direction. After all in an ideal set up it becomes the sacred duty of the State to provide justice to all those who ask and seek, from the Courts, free of cost. When the matter is looked at from this angle. I do not think the learned Additional District Judge has committed any error of law at all in reversing the trial Court's finding on issue No.2. I am further of the opinion that this matter however could have been decided by him finally in his appellate jurisdiction instead of remitting the case to the trial Court for decision on issue No.2 with directions contained in the remand order. This course would have clearly obviated the delay in the disposal of this dispute and saved the parties from a further round of litigation. Since I propose to dismiss the appeal in limine, therefore, no variation possibly can be made in the remand order passed by learned appellate Judge. These days when the Courts are already crowded with pending files, it would have been a better exercise of jurisdiction if the remand had been avoided which would have saved time and expense. In the light of what has been stated above, this appeal has no merit. It fails and is dismissed in limine. M . Y . H . Appeal dismissed.