Restoration of suit rejected under order 7 rule 11

2006 Y L R 2263

[Lahore]

Before Mian Hamid Farooq, J

RAB NAWAZ---Petitioner

Versus

MAPAAL and 6 others---Respondents

Civil Revision No.808 of 2002, decided on 3rd October, 2003.

Civil Procedure Code (V of 1908)---

----O.VII, R.11---Rejection of plaint---Deficiency of court-fee-Appellate Court by a composite judgment dismissed the memorandum of appeal of the defendants on account of non-affixation of coup fee of Rs.15, 000 and simultaneously rejected the plaint on the same ground---Validity---No material was available on record about the value of the suit property---Plaintiff had fixed the valuation for purposes of Court-fee as Rs.22,000---No opportunity was provided to plaintiff to make up the deficiency as required by law---Other party had not filed the revision and had not appeared---Appellate Court by rejecting the plaint had committed illegality and material irregularity---Judgment and decree of the appellate Court were set aside and those of trial Court were restored in circumstances.

Zahid Hussain Khan for Petitioner.

Respondent Nos.1 to 6 proceeded ex parte.

Nemo for Respondent No.7.

ORDER

MIAN HAMID FAROOQ, J.---Facts relevant for the decision of the present revision petition are that the petitioner filed a suit for possession of suit property against respondents Nos.1 and 2, which was contested by them through filing the written statement. Muhammad Riaz son ofrespondent No.1, also filed a suit for specific performance, against the petitioner, in respect of same property, with the assertion that the petitioner had sold the suit property to him for a consideration of Rs.22,000 and this suit was contested by the petitioner. The learned trial Court consolidated both the suits, framed 16 consolidated issues and after recording the evidence of the parties, dismissed the suit of Muhammad Riaz and decreed petitioner's suit, vide consolidated judgment dated 10-3-2001. Against the said judgment, Muhammad Riaz and respondents Nos.l and 2 filed separate appeals, and the learned Additional District Judge dismissed the appeal of Muhammad Riaz, vide judgment and decree dated 11-2-2002. Although the appeal of respondents Nos.l and 2 was also dismissed by the learned Additional District Judge, vide judgment and decree dated 11-2-2002, yet he also rejected the plaint, in petitioner's suit,- due to non-affixation of court-fee, hence the present petition.

2. The respondents Nos.1 to 6 were proceeded ex parte vide order dated 10-1-2003. Although representative of respondent No.7 was present on 10-1-2003, yet respondent No.7 is unrepresented today.

3. Learned counsel for the petitioner has contended that the petitioner has fixed the valuation of his suit at Rs.22,000, therefore, no court-fee was payable on the plaint, thus, the impugned judgment is not sustainable in law.

4. In view of the argument raised by the learned counsel, I have examined the available record and find that the petitioner in his suit for possession, filed against the respondents, in para.No.9 of the plaint, fixed the valuation of his suit at Rs.22,000, which amount is undoubtedly exempted from the payment of court-fee. The learned trial Court although framed Issue No.16, about the proper valuation of the suit, yet as the parties did not produce any evidence, A therefore, the same was decided against the plaintiff Muhammad Riaz. It is not discernible from the available record that on the basis of which material the learned appellate Court came to the conclusion that a court-fee of Rs.15,000 was to be affixed on the plaint as well as on the appeal. To my mind, the issue of court-fee was clinched and finalized with the findings of the learned Civil Judge on Issue No.16, which findings, even according to the impugned judgment, were not reversed by the appellate Court. Additionally, the learned appellate Court, before rejecting the plaint, did not call upon the petitioner to make up the deficiency of court-fee. It is l settled law that if a Court comes to the conclusion that court-fee has deficiently been paid, then it is under an obligation to provide an adequate opportunity to the party concerned to make up the deficiency and if he still fails to comply with it, of course a punitive action can be taken.

5. In the above perspective, I have examined the impugned judgment and is of the view that the contention raised by the learned counsel has substance. The appellate Court by rejecting the plaint has definitely committed illegality and material irregularity, thus, warranting the exercise of revisional jurisdiction in the matter. I am inclined to set aside the impugned judgment.

6. Another material aspect of the case is that the learned appellate Court, through a composite impugned judgment, has dismissed the memorandum of appeal on account of non-affixation of court-fee of Rs.15,000 and simultaneously rejected the plaint of the petitioner on the same ground. It appears that the respondents have not challenged the said judgment through filing a separate revision petition and the petitioner has only assailed the impugned judgment. As the respondents Nos.l and 2 have not challenged the said judgment, acquiesced over the matter, therefore, the judgment to their extent has attained finality and, cannot be set aside and under the present set of circumstances, the petitioner is only entitled to the relief.

7. In view of the above, the present revision petition is allowed and the impugned judgment and decree, dated 11-2-2002, to the extent of rejection of the plaint in a suit for possession, filed by the petitioner, is set aside with no order as to costs. Resultantly, the judgment and decree of the learned trial court dated 10-3-2001 to the extent of decreeing the suit for possession titled "Rabnawaz v. Mapaal others" stands restored.

M.I./R-280/L Revision accepted.