MUHAMMAD YAQOOB Versus MUHAMMAD YUNIS
The facts of the case lie within a narrow compass and may briefly be summarised as follows.
2. Muhammad Younas, respondent herein, filed a suit on 29‑7‑1981 to pre‑empt the sale of the suit land sold by means of a registered sale‑deed, dated 14‑9‑1980. Court‑fee stamp for Rs.27,875 was affixed on the plaint and in para. 9 of the plaint it was stated:‑
"That the court‑fee was being paid on fifteen times of annual net profits amounting to RB.1,04,890.35."
The appellants filed their written statement on 22‑12‑1981 and resisted the suit, among other pleas, on the ground that the plaint did not bear proper court‑fee. After the filing of the written statement by the appellants no notice about the deficiency in the court‑fee was taken by the trial Court. Anyhow, on 28‑2‑1982, the respondent moved an application under section 148/149, Cr.P.C. before the learned Civil Judge praying that he be allowed time to make up the deficiency in court‑fee. It was submitted that by inadvertance the statement of annual net profits provided to him related to the period of Kharif 1979 and Rabi 1980, while in point of fact it should have been for the period of Kharif 1980 and Rabi 1981. The appellants opposed this application on the ground that the respondent was negligent in instituting the suit with deficient court‑fee and his conduct was also contumacious. In support of the contention the appellants cited at the bar a judgment of the Supreme Court of Pakistan reported as Mst. Wilayat Khatoon v. Khalil Khan P L D 1979 SC 821.
3. Accepting the contentions of the appellants, the learned Civil Judge, vide his order, dated 19‑9‑1982, purportedly rejected the plaint under Order VII, Rule 11(c) of the Code of Civil Procedure.
4. Feeling aggrieved the respondent filed an appeal on 21‑11‑1982 against the above order rejecting the plaint. The learned District Judge, vide his order, dated 30‑4‑1983, accepted the appeal, set aside the order passed by the learned Civil Judge and remitted the case for fresh decision in accordance with law, observing that:
"The learned Civil Judge shall make an order directing the plaintiff to make up the deficiency in court‑fee and fix a time for that purpose."
It is this order of the learned District Judge which has been impugned in the present appeal.
5. Learned counsel for the appellants contended that against the order of the learned trial Court, the respondent had filed an appeal on 21‑11‑1982 although he had received certified copy of the order on 21‑9‑1982. According to the learned counsel the appeal was hope lessly barred by time and should have been dismissed as such. It was next contended that the suit was instituted with deficient court‑fee and that being the case the respondent was guilty of contumacy and positive mala fides, and in these state of things the learned trial Court was justified in rejecting the plaint in exercise of its discretion and his order called for no interference by the appellate Court.
6. Learned counsel for the respondent, on the other hand, has raised a preliminary objection about the maintainability of the present appeal. According to the learned counsel the provisions of Order XLIII, Rule 3 of the Code of Civil Procedure have not been complied with. In support of his contention the learned counsel cited at the bar Muhammad Siddique v. Buta P L D 1985 Lah. 243. Coming to the merits of the case, the learned counsel contended that the respondent had applied for certified copy of the judgment and decree of the trial Court but he was only delivered copy of order on 21‑9‑1982. He explained that on an application moved by him a decree was drawn up on 26‑10‑1982 and its copy delivered to him on 6‑11‑1982, the appeal filed by the respondent was consequently within time. In support of his contention he has relied on Government of West Pakistan v. Niaz Muhammad P L D 1967 SC 271 and Ghulam Rasool v. Deputy Director Military Lands 1982 C L C 550. On the question relating to the deficiency in the court‑fee it was contended by the learned counsel that the learned trial Court had neither determined proper court‑fee nor had granted time for making up the deficiency. According to the learned counsel the order was a nullity as held by their Lordships of the Supreme Court in Nur Muhammad v. Hussain Muhammad 1986 SCMR 1345.
7. It is an admitted position that the appeal before the learned District Judge impugning the order of the trial Court, dated 19‑9‑1982 was filed on 21‑11‑1982. At first blush that appeal appears to have been filed after the prescribed period of limitation but on deeper examination of the question the contention of the learned counsel for the appellants is found to be untenable. It is true that where a plaint is rejected under the provisions enacted by Order VII, Rule 11(c), C.P.C. the order rejecting a plaint is appealable as a decree and it is not essential to draw up a decree‑sheet and the usual practice is also not to do so. In the instant case, no doubt the learned trial Court has purportedly rejected the plaint in terms of Order VII, Rule 11(c), C.P.C., but as a matter of fact primarily it dismissed the suit on the question of limitation, opining that since an application under section 148/149, C.P.C. seeking permission to make up deficiency in the court‑fee was filed after limitation, the appellants had acquired a vested right with the running out of limitation and could not be deprived of their right with the grant of time for making up the deficiency in the court‑fee. I am clear in my mind that the order passed by the learned trial Court cannot be construed to have been passed under Order VII, Rule 11(c), C.P.C. This provision makes it obligatory for the Court to first determine proper court‑fee and then require the plaintiff to make up the deficiency within a time to be fixed by it. This course, it is manifestly clear, was not resorted to by the learned trial Court.
8. It is again an admitted position that on an application made by the respondent a decree was drawn up on 26‑10‑1982 and its copy supplied to him. The period elapsing between the announcement of the judgment and signing of the decree has, therefore, to be accommodated in the period requisite for obtaining copy, and the 1 neglect on the part of the trial Court in the performance of its statutory duty cannot be taken as a ground for penalising the respondent and depriving him of his right of appeal. This view has the support of the pronouncement of superior Courts reported as Government of West Pakistan v. Niaz Muhammad P L D 1967 SC 271 and Ghulam Rasool v. Deputy Director Military Lands 1982 C L C 550.
9. As pointed out in the preceding paragraphs, the learned trial Court had neither determined proper court‑fee nor had fixed any time enabling the respondent to make up the deficiency which, in view of the judgment reported as Noor Muhammad v. Hassan Muhammad 1986 S C M R 1345 was its legal obligation and the Court failed to discharge that. In view of the ruling just quoted the contention of the learned counsel for the appellants has no force.
10. As far as the preliminary objection raised by the learned counsel for the respondent to the effect that the present appeal being in breach of the provisions of Order XLIII, Rule 3, C.P.C. is concerned, it is well‑founded. By his order, dated 30‑4‑1983, the learned District Judge had accepted the appeal, set aside the order impugned before him and remitted the case for disposal afresh after determining court‑fee and giving the party concerned opportunity to make good the deficiency. Obviously the suit was very much alive, the matter still pending, and the present appeal, in the absence of notice as contemplated by Order XLIII, Rule 3, C.P.C. was not maintainable.
11. For the reasons given above, I do not find any force in this appeal which is dismissed without any order as to costs.
A . A . /M‑496/L Appeal dismissed.