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Civil Appeal No. 9 of 1982, decided on 23rd May, 1982.

-- S. 21(4) read with Civil Procedure Code (V of 1908), S. 148 and O.. XVII, r. 3-Deficiency of stamp on security bond-Dismissal of suit - Pre-emptor furnishing security on insufficiently stamped security bond-Court ordering deficiency of stamp to be made up on or before certain date -Pre-emptor-appellant and counsel both absent on that date-Suit dismissed for both defaults of appearance and that of supplying deficient stamp papers-Defaults sufficiently explained by pre-emptor-appellant-Case not of - default in giving security but of deficiency of stamp papers and could not be dismissed under Right of Prior Purchase Act-Impugned order of trial Court has to be under O. XVII, rule 3, C. P. C.--Case of plaintiff-appellant not warranted by S. 148, C. P. C.

Raja Muhammad Saddique for Appellant.

Qazi Abdul Ghafoor for Respondents.

Date of institution : 13th February, 1982.

This second appeal is directed against orders dated 25-5-1981 and 14-11-1981, respectively passed by the Sub-Judge, Mirpur and the District Judge, Mirpur.

The impugned order of the Sub-Judge was challenged in the first appeal before the District Judge wherein an application presumably under section 148 Civil Procedure Code was also moved seeking permission for supply of deficient stamp papers already purchased by the surety and attached therewith, The pre-emptor-appellant was required to give security as warranted by section 21(1) of the Right of Prior Purchase Act. The security was furnished by the pre-emptor on the due date and the same was also accepted by the trial-Court but at the same time it came to the notice of the trial Court that security bond was not sufficiently stamped and so it was Ordered that deficiency of stamp papers be made up on or before 25-5-1981, as the case may be. The pre-emptor and his counsel were both absent on 25-5-1981 when the case was called on by the trial Court and no deficient stamp papers could be supplied as a result of which defaults, the suit was dismissed namely in default of appearance and for default in supplying the/ deficient stamp papers.

The trial Court while passing the impugned order remarked that as no security was given by the plaintiff-pre-emptor as ordered by the Court, the plaint was presumably rejected under section 21(4) of the Law of Pre-emption called the Right of Prior Purchase Act here in the State. As a matter of fact strictly speaking, this was not a case of default in giving security as ordered by the trial Court under law but it was a case of deficiency of stamp papers and so the case could not be dismissed or rejected under the provisions of pre-emption Act that is to say that the impugned order of the Court of first instance was to be passed under Order XVII, rule 3 of the Civil Procedure Code.

The learned District Judge paid no heed to the application for allowing the supply of stamp papers under section 148, C. P. C. It appears that his attention was not drawn to this provision of the Code which in the circum stances, of the case was within the powers of the Appellate Court and not that of the trial Court because there was no stage left for the trial Court to allow further extension for supply of deficient stamp papers. The application filed alongwith the, appeal in the lower Court was supported by an affidavit to the effect that in order to make up deficiency of stamp papers to be filed with the security bond were purchased by the surety on the very date for which the time for supply of deficient stamp paper was given to the pre-emptor appellant but as the appellant and the counsel both were not present on the date fixed for the purpose, he could not attach the deficient stamp papers with the security furnished by him as at the time he enquired about the case, it was already dismissed for defaults.

There is no counter-affidavit to the affidavit filed by the surety wherein it was contended that due to a technical defect in the vehicle driven by the plaintiff-pre-emptor who is a driver, on the date fixed was unable to

attend the Court and his counsel was also unable to appear before the Court on account of the recent death of his father.

These are the very cogent reason by the plaintiff-pre-emptor before the lower Appellate Court but these were very lightly taken and the case of the plaintiff-appellant was not considered as warranted by section 148 of the Civil Procedure Code. The defaults were sufficiently explained by the pre emptor-appellant.

That being so, this appeal is accepted and the impugned judgments and decrees of the Courts below are set aside and suit of the plaintiff-pre-emptor is restored to its original number and the supply of deficient stamp papers is allowed to him with the result that the stamp papers which were purchased by the surety to attach with the security bond in order to make up deficiency shall be sent down to the trial Court to file the same with the security bond and further to proceed in accordance with law in the cause. The parties are directed to appear before the Court of Sub-Judge, Mirpur on 25-5-1982.

K. M. A. Appeal accepted.

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