ILAM DIN And Another vs ABDUL MAJID And 2 Other

ORDER

1. MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought from judgment dated 22nd, December, 1984, of the Lahore High Court; whereby petitioners Constitutional petition arising out of a pre-emption case, was dismissed.

2. The petitioners are the vendees. The respondent No.1 Abdul Majid filed a suit for pre-emption on 27th March, 1976. He had valued the suit for purpose of court-fee and jurisdiction tentatively and had paid court-fee stamp of Rs.150 only. On 29-11-1976 the trial Court conducted the scrutiny of court-fee and directed the respondent to pay the deficiency in court-fee amounting to Rs.935.50 by 21st of December, 1976. This was done under Order VII, rule 11. On 21st December, 1976, however, the Court corrected the earlier determined amount and directed the respondent to pay only Rs.412 as balance of court-fee by 27-1-1977. This order was duly complied with. Subsequently, for want of pecuniary jurisdiction the case was referred to the learned District Judge who entrusted the same to tile Court of a learned Senior Civil Judge for trial by order dated 2-7-1977. More than three years later, on 15-10-1980 the petitioners (vendees) filed a revision against the order dated 29-11-1976 whereby under Order VII, Rule 11 the respondent was directed to make up the deficiency in court- fee. The main ground taken was that when this order was passed the period of limitation for filing a suit for pre-emption had expired, therefore, instead of granting time under Order VII, Rule 11 the plaint should have been rejected under the same provision. The revision was dismissed by a learned District Judge by order dated 16-5-1984 on merits regarding court-fee as also on a legal ground that the order under revision did not amount to a case decided, therefore, the revision was not competent.

3. The petitioners then challenged the revisional order in the High Court through Constitutional petition. The same having been dismissed, leave to appeal has been, sought on the ground that the case Mst. Walayat Khatun v. Khalil Khan and another P L 3) 1979 SC 821 has not been followed, in that, the failure to pay the proper court-fee at the time of institution of the suit had rendered the suit time-barred at the subsequent stage when orders were passed for supply of the deficiency. It has also been contended that the trial Court should not have considered the question of court-fee under Order VII, Rule 11 as it had no pecuniary jurisdiction to deal with the main case.

4. The case of Mst. Walayat Khatun. It was clarified at length by this Court in a recent judgment Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289; and it was decided with reference to earlier decisions, namely, Muhammad Nawaz Khan and another v.

5. Makhdoom Syed Ghulam Mujataba Shahna and another PLD 1970 SC 37 and Shah Nawaz v.

6. Muhammad Yousaf and 3 others 1972 SCM R 179 that the question of limitation does not arise with reference to proceedings on question of court-fee under Order VII, Rule 11, and that it is as a matter of right that in cases of deficient court-fee the Court is to determine the deficiency and afford at least one opportunity under the said provision to the plaintiff to make up the deficiency. In this case that opportunity having been afforded to the respondent, he complied with the orders of the Court within the specified time. The question of discretion would have arisen only if the orders passed by the Court would not have been complied with and the respondent would have sought further time under section 149, C.P.C. That stage never came. The first point raised by the learned counsel has no force.

7. Regarding the second question suffice it to observe that it is not a fit point for grant of leave to appeal in this case on the technical matter of court-fee on which the petitioners have no case on merits.

8. Although another question decided against the petitioners: that determination of court-fee does not amount to case decided, has not been raised by the learned counsel, we, on account of the aforementioned reason, do not feel compelled to deal with the same as this is not a fit case for examination of the same. Leave to appeal accordingly is refused.