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Civil Petition for Special Leave to Appeal No. 112‑R of 1975, decided on 12th December 1975.
(On appeal from the judgment and order of the Lahore High Court made on the 28th of May 1975, in R. S. A. No. 413 of 1972).
Civil Procedure Code (V of 1908)‑
----O. VII, r. 11‑Plaint, rejection of‑Amended plaint and deficiency in court‑fee not filed and made good as directed by Court, hence, plaint rejected‑Contention that counsel for plaintiff misunderstood order of Court‑‑Order clear and unambiguous and no room or occasion left to misunderstand same‑No necessity of framing a formal issue in that behalf‑No justification, held, to interfere with consistent view of all Courts below.
Mian Iqbal Khalid, Advocate (absent) and Ch. Akhtar Ali, Advocate‑on. Record for Petitioners.
Nemo for Respondent.
Date of hearing : 12th December 1975.
‑This petition seeks leave to appeal against the judgment of a learned Single Judge of the Lahore High Court dated the 28th of May 1975, by which the second appeal instituted by the petitioners against the rejection of their plaint in a pre‑emption suit was dismissed.
The suit bad been instituted on 23‑12‑1967. A preliminary objection was taken by the defendant, to the valuation of the suit for the purposes of court‑fee and jurisdiction. On the basis of the report of a local Commissioner the correct value was determined and an order was passed by the trial Court 'on 15‑3‑1971, directing that the amended plaint be filed by the 24th of April 1971, and the deficiency of the court‑fee be made up before that date. It was further directed that the plaint be filed in Court one week before this date, a copy be given to the defendant, and his written statement should be filed on the day. When the case was taken up on the 24th of April 1971, it was found that the amended plaint bad not been filed as directed, nor the deficiency of court‑fee had been made up. Learned counsel appearing for the petitioners' sought a short adjournment, which was granted, and thereafter, the amended plaint with full court‑fee owns filed.
As the defendant contended that the plaint was liable to be rejected under rule 11 of Order VII, C. P. C. the learned trial Judge heard arguments on this point, and rejected the plaint on that very day.
The appeal filed by the petitioners was dismissed by the learned District judge, Sialkot, by his order dated the 12th of January 1972, and the second appeal has also beets dismissed by the High Court on 28‑5‑75.
The main ground urged for the grant of leave to appeal is that the counsel for the petitioners bad misunderstood the order of the High Court regarding the making up of the deficiency in court‑fee and the filing, of the amended plaint inasmuch as he thought that both these acts could be done by the next date of hearing, namely, the 24th of April 1971. It is next submitted that the trial Court should have made this matter into a formal issue before rejecting the plaint.
There is no merit in these submissions. All the Courts below have found the order made by the trial Court on 15‑3‑71 was clear and unambiguous, and there was no room or occasion to misunderstand the same. The matter involved being only one of interpretation of the order of the trial Court, there was no necessity of framing a formal issue in this behalf. We do not see any justification to interfere with the view con sistently taken by the learned trial Court, the District Court and the High Court.
As a result, the petition fails and is hereby dismissed.
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