ALLAH BAKHSH and others vs ABDUL QADIR and others
This matter arises from a petition for leave to appeal directed against the judgment of the Lahore High Court, Multan Bench, which accepted the respondents' Regular Second Appeal and decreed their pre-emption suit. The petitioners challenged the High Court's decision, arguing that the pre-emptors failed to make up the deficiency in court-fee within the time specified by the trial court and that the suit was liable to rejection under Order VII Rule 11 of the Code of Civil Procedure 1908. The core legal question was whether the suit could be dismissed for non-payment of court-fee when the exact amount of court-fee payable had not yet been determined by the court. The Supreme Court dismissed the petition, holding that the suit could only be dismissed if the pre-emptors failed to make up the deficiency after the court-fee had been properly determined. The Court affirmed the principle that a plaintiff cannot be non-suited for failing to pay a deficiency that has not been judicially determined, following the precedent in Siddique Khan v. Abdul Shakur Khan.
- Can a pre-emption suit be dismissed for failure to make up a deficiency in court-fee when the exact amount of court-fee payable has not yet been determined by the court?
- Does the failure to correct the valuation of a suit within the given time attract rejection of the plaint under Order VII Rule 11 of the Code of Civil Procedure 1908 when court-fee remains undetermined?
- Order VII Rule 11, Code of Civil Procedure 1908
ORDER
' ALI HUSSAIN QAZILBASH, J.--This is a petition for leave to appeal against the judgment of a learned Single Judge of the Lahore High Court, Multan Bench, dated 18-12-1988.
2. The petitioners purchased the suit land vide Mutation No,498 attested on 17-4-1973 for a consideration of Rs,14,437.50. The respondents pre-empted the sale on the ground of their being owners in the estate. As a result of the pleadings of the parties a number of issues were framed, of which issue No,2 is relevant and is to the effect: "Whether the deficiency in court-fee was not made up within time and its effect?"
' The learned trial Court after recording the evidence, vide its judgment, dated 25-7-1984, dismissed the suit on the ground that the respondents have failed to make up the deficiency in the payment of court-fee within the time allowed. The appeal filed by the respondents was also dismissed by the learned Additional District Judge, Multan, on 27-10-1986. The High Court, however, vide the impugned judgment, accepted the Regular Second Appeal and decreed the suit of the respondents subject to the condition that besides the payment of the pre-emption money, viz., Rs,14,437.50, they shall make up deficiency in the court-fee within the period to be specified by the learned trial Court after the same has been determined by it.
3. The learned counsel for the petitioners has been heard. He contended that in this case the amount of court-fee payable was not in dispute at all but the only question was whether the court- fee had been paid by the respondents within the date specified by the trial Court, which obviously they had not, therefore, the respondents were rightly non-suited by the two lower Courts. The High Court, he maintained, has thus committed an error in decreeing the suit relying on the case of Siddique Khan v. Abdul Shakur Khan (PLD 1984 SC 289). He further contended that since the respondents had failed to correct the valuation of the suit within the given time, the suit was hit by the provision of Order VII, Rule 11, C.P.C. And was rightly dismissed.
4. The above contentions, we are afraid, have no force in that it is a matter of record and has been conceded by the learned counsel for the petitioners that in this case the amount of the court-fee has not yet been determined by the trial or the appellate Court. Such being the position the suit could have only been dismissed if the respondents after p:oper determination of the court-fee had failed to make up the deficiency within the specified time. As such the law laid down by this Court in the above-cited judgment is fully applicable to the case in hand and the finding of the learned Single Judge is unexceptionable.
5. The petition is thus dismissed.