NOOR MUHAMMAD Versus HASSAN MUHAMMAD

ORDER

MUHAMMAD AFZAL ZULLAH, J ,- Leave to appeal has been sought from judgment dated 3‑4‑1979 of Lahore High Court whereby petitioner's Regular Second Appeal arising out of pre-emption matter was dismissed.

2. The petitioner filed a suit for pre‑emotion on 24‑9‑1974, regarding a sale which had taken place on 27‑9‑1973. Regarding court‑fee in para. 8 of the plaint he had stated as follows:‑

"Value for purposes of court fee and jurisdiction is fixed at fifteen times of net profit for the preceding year. Application for supply of Naqsha Paidawar has been made. Court‑fee stamp of Rs.10 is affixed. Deficiency in court fee will be made after receipt of Naqsha Paidawar as may be ordered by the Honourable Court."

3. On 5‑10‑1974, the Court on the assumption that the plaint had been duly entertained ordered issue of summons for the, other party for 10‑12‑1974 on which date the learned Presiding Judge was on leave. The case came up on 11th February, 1975, when the Court ordered that the deficiency in the court‑fee be made till the next date of hearing which was fixed as 15‑4‑1975. On that date again the case was adjourned to 27‑4‑1975, without making any observation about the court‑fee. Same happened on 27‑4‑1975 and the case was adjourned to 6‑5‑1975, when the court fee was made good. The respondent filed an application on 22nd June, 1978, for rejection of the plaint under Order VII, Rule 11. This application was rejected by the trial Course on 22 nd July, 1978. One reason, amongst others was that the application was made three years after the institution of the suit and the conduct of the respondent amounted to waiver. Moreover, the case was ripe for decision. Respondent's Revision before the District Court, however, was accepted and it was held that on the above‑stated facts the petitioner was guilty of contumacy because the deficiency in terms of money was not made good within the time allowed by the Court. The petitioner failed ii, the High Court which affirmed the finding of contumacy and further held that the suit was for enforcement of an artificial right and that the initial extension should not have been allowed as it involved question of limitation.

4. Learned counsel for the petitioner relying on Mst. Parveen v. Mst. Jamsheda Begum and another P L D 1983 S C 227 and Siddique Khan and 2 others v. Abdul Shakur Khan and another P L D 1984 S C `89 has contended that the petitioner's conduct could not be considered as contumacious because in the very plaint itself, in paragraph 8, he had undertaken to pay the court‑fee which was to be determined by the Court. He has also acted bona fide when stating that an application for supply of Naqsha Paidawar had already been made. Moreover the conduct of the petitioner, in the circumstances of this case did not fall within the "contumaciousness of this case, as defined by this Court in one of the afore stated cases. Learned counsel also correctly pointed out that as held by this Court apart from the duty of the plaintiff to supply the correct court fee it was also the duty of the court to specify and determine the required court‑fee under Order VII, Rule 11. Unless that was done and the case was adjourned as a matter of right for the petitioner to pay the court fee by a certain date no punitive action could be taken under Order VII, Rule 11. In this case it is not denied that the actual amount of the court‑fee was never specified by the Court. Although if the petitioner had obtained Naqsha Paidawar the same could have been utilised by the Court for determining the court‑fee and then directing the petitioner (plaintiff) to make the deposit on or by a certain date. This was not done. It is also clear from the case law relied upon by the learned counsel that the question of limitation in reality does not arise in this case because when time is allowed under Order VII, Rule 11 or is extended under any relevant provision of law, the period of limitation gets extended automatically. No suit can be dismissed on the ground of limitation in circumstances take those of the present case. It has been fully made clear in the case of Siddique Khan already cited as P L D 1984 S C 289.

5. Learned counsel for the respondent remained unable to meet the arguments of the learned counsel for the petitioner which have been stated above. He only mentioned that the petitioner was in possession of the Naqsha Paidawar since 11‑11‑1974. Even if that is so, it was the duty of the Court to utilise that Naqsha Paidawar for determining and specifying the required court‑fee and then directing the plaintiff t make the deposit by a certain date under O. VII, Rule 11 It was only on failure thereof that the plaint could have been rejected or time could further be extended under other provisions of law.

6. In the light of the above discussion we convert this petition into appeal and allow the same. There shall be no order as to costs.

M. Y. H . Appeal allowed.