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Civil Petition for Special Leave to Appeal No. 326 of 1982, decided on 9th February, 1983.

(Against the judgment dated 2‑2‑1982 in F. A. O. No. 186 of 1979 of the Lahore High Court).

‑‑ Art. 185 (3) read with Civil Procedure Code (V of 1908), Ss. 96, 148 & 149 and O. XIV‑Issues‑Framing of‑Parties going to trial on issues framed one of which relating to proper valuation‑Decision of issue of valuation in summary proceedings witaout ascertaining because of delay in filing statement of net profits‑Held, such procedure likely to give appearance of an arbitrary conduct of proceedings and likely to lead to erroneous conclusions of facts and law‑Question of extension of time or indulgence to plaintiff‑respondent‑Held, can arise after leading evidence and plaintiff adjudged guilty of acting in negligent and irresponsible manner without any plausible explanation Leave to appeal refused.

Ch. Khalilur Rahman, Senior Advocate Supreme Court with Walayat Umar Chaudhry, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing : 9th February, 1983.

The petitioners who are defendants in a pre‑emption suit seek leave to appeal against the judgment of the Lahore High Court dated 2‑2‑1982 whereby their first appeal against an order of reversal of an order of rejection of the plaint was dismissed.

On 17th December, 1974 a sale took place in respect of which a pre -emption suit was instituted by the plaintiffs‑respondents on 12‑12‑1975 with the tentative valuation of the suit and fixation of Rs. 80 as court‑fee. The plaintiffs were ordered to make up the deficiency in court‑fee. They added Rs. 820 to court‑fee more to make it Rs. 900 but still without filing the state ment of net profits. The issues were framed on the pleadings of the parties and the parties went to trial. One of the Issues related to the correct valua tion for the purposes of court‑fee and while the parties were yet to conclude their case on it, the trial Court by an order dated 14‑10‑1978 rejected the plaint depending on the statement of net profits filed by the petitioners. In the order the exact deficiency was not indicated and to date it has not been specifically ascertained. On appeal the contention of the plaintiffs‑respondents which prevailed was that after the issues had been framed the parties should have been allowed to lead evidence and on the basis of such evidence the exact deficiency should have been determined and thereafter the question whether the act of the plaintiff/respondents in undervaluing it should have been considered and if found worthy of penal action the same should have been taken. By resort to a summary adjudication, and that too without adverting to the evidence that had yet to be received on the record the trial Court had prejudged the matter. The District Judge allowed the appeal and directed that the matter should be dealt with afresh after allowing the parties to lead evidence in. accordance with the law on the subject. This was challenged by the petitioners in first appeal in, the High Court and the High Court upheld the action of the District Judge by observing as follows :‑

"The proper court‑fee the learned Judge was to have decided the issue touching court‑fee after the parties had adduced evidence. His hasty action in proceeding with the disposal of the appellant's application, when specific issue regarding court‑fee was awaiting decision, cannot but be described an illegal and irregular. The learned counsel for the appellants could not justify the procedure adopted by the learned trial Civil Judge. Therefore, the appeal was rightly accepted by the learned District Judge. This appeal is without any force and is dismissed with costs. The learned trial Civil Judge wilt decide the suit according to law. As the suit is quite old the learned Civil Judge will do well to give it priority over other cases and dispose it of within four months."

The learned counsel for the petitioners contended that more than enough and, in any case, all reasonable latitude had been allowed to the plaintiffs /respondents for making kip the deficiency in the court‑fee. The statement of net profits was got prepared by the petitioners and not by the plaintiffs /respondents and on the basis of the admitted deficiency the plaint could justifiably be rejected and there was no point in giving further opportunities for making up the deficiency in court‑fee. He has copiously referred ‑to the law on the subject.

We find that it is not so much a case of allowing indulgence or extension in time to the plaintiffs‑respondents or the reasonableness of it. The question involved is one of principle. After the parties had gone to trial on issues framed, one of which related to the proper valuation, the only course open to the Court was to have got the evidence of the parties on it or to have decided it on 'the basis of admission, clear and unconditional. After framing an issue and then deciding the same question in summary proceedings without ascertaining why there was delay in filing the statement of net profits and without hearing the plaintiffs‑respondents with regard to the state ment of net profits got prepared by that petitioners, the question could not be decided through what appeared ex facie to the trial Court proper evidence. Such a procedure is likely to give the appearance of an arbitrary conduct of proceedings and is likely to lead to erroneous conclusions of facts and law. The question of extension of time or indulgence to the plaintiffs‑respondents can arise when evidence is led and he is adjudged to have been guilty of acting in a negligent and irresponsible manner and has no plausible explanation to offer.

We find that this is not a fit case for grant of leave to appeal and leave to appeal is refused.

Petition dismissed.

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