SHER MUHAMMAD Versus MUHAMMAD NAWAZ

1. ABAID ULLAH KHAN, J. ‑‑This appeal against the judgment and decree of the learned Civil Judge. Jauharabad, dated the 31 st October, 1983, recording dismissal of the appellant's suit for possession by pre‑emption of 198 Kanals of the land in dispute, situate in the area of village Botala, Tehsil and District Khushab, raises a limited point for determination. The superiority of the appellant's pre‑emptive right and quantum of sale consideration of Rs.1,70,000 are no longer in dispute. The learned trial Court non‑suited the appellant on the short ground that he had made up deficiency in court‑fee after the expiry of statutory period of limitation requisite for instituting the suit. However, the perusal of the record of the suit indicates that the learned Court never ascertained the exact amount of deficiency in court‑fee and never passed an order requiring the appellant to pay up the deficient amount of court‑fee by a certain date. All that it did was that it directed the appellant soon after the institution of the suit to file amended plaint and Naqsha (statement of net profits) by the next date of hearing. In such a situation, in view of the law laid down by the Supreme Court of Pakistan in Siddique Khan versus Abdul Shakur Khan P L D 1984 SC 289, the appellant could not have been penalized unless he had first been asked to pay definite amount of court‑fee by a specified date and he had defaulted to comply with the order. Mere non‑payment of court‑fee within the period of limitation or making up deficiency in court‑fee after the expiry of period of limitation does not render the suit, which is instituted within time, to be time‑barred. The impugned, judgment opposed as it is to the law enunciated by the Supreme Court, cannot stand the test of scrutiny by this Court. The appeal is accordingly accepted, the impugned judgment and decree are set aside, a decree for possession of the land in dispute is passed in favour of the appellant and against the respondents and it is directed that the appellant shall pay into the trial Court a sum of Rs.1,70,000 on or before the 30th April, 1988, and on such payment being made the respondents shall deliver possession of the land in question to the appellant whose title thereto shall be deemed to have accrued from the date of such payment but if the aforesaid amount of Rs.1,70,000 is not so paid, the appellant's suit as well as this appeal shall be dismissed with costs. In the circumstances of the case the parties are left to bear their own costs.

2. H.B.T./S‑199/L Appeal accepted.