ALLAH RAKHA And Others vs BOOTA KHAN
This appeal under Article 185(2) of the Constitution of Pakistan 1973 challenges a judgment of the Lahore High Court which remanded a pre-emption suit after setting aside the trial court's dismissal of the suit as time-barred for deficiency in court-fees. The core legal question was whether a pre-emption suit could be dismissed under Order VII Rule 11 of the Code of Civil Procedure 1908 where a plaintiff paid substantial court-fee based on a calculation of net profits, but the trial court later determined a higher valuation based on figures provided by the revenue authorities and the defendants. The Supreme Court dismissed the appeal both on merits and as barred by time, holding that where substantial court-fee has been paid and a genuine calculation was made, a discrepancy in valuation between the parties does not warrant the rejection of the plaint. The Court applied the principles established in prior precedents regarding court-fee calculations in pre-emption suits.
- Whether a pre-emption suit can be dismissed under Order VII Rule 11 of the Code of Civil Procedure 1908 for deficient court-fee when the plaintiff has paid substantial court-fee based on a calculation of net profits?
- Does a discrepancy between the plaintiff's and defendant's calculations of net profits for court-fee valuation render the suit liable to dismissal as time-barred?
- Whether an appeal filed 137 days beyond the period of limitation is liable to dismissal on the ground of being time-barred?
- Article 185(2), Constitution of Pakistan 1973
- Order VII Rule 11, Code of Civil Procedure 1908
S.A. NUSRAT, J.--This appeal under Article 185(2) of the Constitution has been brought to challenge the judgment of the Lahore High Court, dated 5-1-1989 whereby the case has been remanded after setting aide the judgment and decree of the Civil Judge, Wazirabad, dated 29-6-1978 -dismissing the suit of the plaintiffs/respondents as barred by time for non--payment of court-fees.
2. Manzoorul Haq and 3 others had sold the land measuring 710 Kanals and 3 Marlas situated in village Kalair to appellants Allan Rakha and others for a sum of Rs.5,20,000 by a registered deed, dated 9-1-1975.The respondents/ plaintiffs filed a suit on 9-1-1975 on the basis of their superior right of pre-empting the sale paying court-fee of Rs.8,989 on the valuation of Rs.1,19,850 calculated on the basis of 15 times the net profits of the previous year. The suit was contested by the appellants, inter alia, on the ground that the suit for the purpose of court-fee and jurisdiction was under- valued and was liable to be dismissed.
3. The suit was instituted on the last day of limitation. The trial Court framed issues on 28-10-1976.
The issue No. 1 related to valuation of the suit and jurisdiction. The appellants first on 22-2-1978 applied to the Court that the said issue may be decided first. While the application was pending, the appellants made yet another application under Order V11, Rule 11, C.P.C. Seeking rejection of the plaint on the plea that the plaintiffs had neither corrected the valuation of suit in time nor the deficiency in court-fee was made up. The earlier application was not pressed sand the learned trial Court dismissed the suit on 29-6--1978, as having become time-barred'. This decision was challenged by the plaintiff /respondents in the High Court in First Appeal which was accepted as per impugned judgment.
4. According to learned trial Court the plaintiffs had arbitrarily 'fixed the value of the suit for the purposes of court-fee and jurisdiction calculated at 15 times the net profits for the precedent year without getting proper statement of the net profits prepared by the Revenue Authorities. Relying upon the statement of net profits produced by the appellants it was held that the suit should have been valued at Rs.3,46,246.65.
5. On appeal the contentions raised on behalf of the appellants were rejected by the learned Judge and it was held that although specific valuation was not done but substantial court-fee was paid on the plaint as filed It was therefore, a case of calculation made by one party as against a different calculation made by the other.
6. In the circumstances the issue involved in this case is no longer open for consideration and is concluded by decisions of this Court in the case of Mst. Parveen v. Mst. Jamsheda Begum PLD 1483 SC 227 followed lay another decision in the case of Shahna v. Aulia Khan PLD 1984 SC 157 and several other decisions.
7. The correctness of the impugned judgment is unexceptionable. The appeal is also barred by 137 days. The same is, therefore, dismissed on merits as well as barred by time with no order as to costs.
M . I .Appealdismissed.