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Civil Petition No. 544 of 1982, decided on 4th September, 1985.

(Against the judgment and order, dated 19‑5‑1982 of the Lahore High Court, Lahore, in Writ Petition No. 1082 of 1979).

‑‑‑Art. 165(3)‑‑Civil Procedure Code (V of 1908), S. 149 and O.VII, r.11‑‑Punjab Pre‑emption Act (I of 1913), S. 21‑‑Suit for pre‑emption‑ Deficiency in court‑fee‑‑Inordinate delay in making up‑‑Extension granted by trial Court impugned‑‑District Judge accepting revision and rejecting plaint under O.VII, r. 11, C.P.C.‑‑High Court, in its Constitutional jurisdiction, holding that revision being beyond his pecuniary jurisdiction was incompetent before District Judge and its acceptance was without lawful authority‑‑Petition for leave to appeal‑‑Pleas raised that objection to pecuniary jurisdiction or incompetence of revision was not taken before District Judge and having acquiesced, it could not be made ground for challenging that order; that conduct of plaintiffs being contumacious they were not entitled to any discretionary relief as could be granted in Constitutional jurisdiction, and that by such a decision petitioner was deprived of remedies available to him under C.P.C.‑‑Matter admittedly being beyond pecuniary jurisdiction of District Judge, and petitioner's case not being strong on merits also order of High Court, held, was unexceptionable‑‑Petition being devoid of merits, dismissed.

Shahna Khan v. Aulia Khan P L D 1984 S C 157; Siddique Khan v. Abdul Shakur Khan P L D 1984 'S C 289 and Gulzar Hussain v. Abdur Rehman 1985 S C M R 301 rel.

Ch. M. Nazeer Ahmad, Advocate Supreme Court and Sh. Salahuddin, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 4th September, 1985.

The petitioners who are the defendant vendees seek leave to appeal against the judgment of the Lahore High Court, dated 19‑5‑1982 whereby a constitutional petition filed by the plaintiff pre‑emptors was accepted and the judgment in, the District Judge, Multan, dated 14‑6‑1978 was declared to be without lawful authority and of no legal authority as the matter was not within his pecuniary jurisdiction.

The petitioners purchased the suit land on 16th of December, 1974 against which a pre‑emption suit was filed on 10th of December, 1975 with a court‑fee of Rs.4 only. The trial Court did not determine the deficiency in court‑fee but called upon the plaintiffs to make up the deficiency and inordinately long time, according to the appellate Court, was consumed in getting the chart of the net profits prepared. A contest took place whether the failure of the plaintiffs was contumacious and mala fide and the trial Court found that it was not and a further extension was granted. It was on 4‑6‑1977 that the deficiency in court‑fee was made up. A revision petition was filed against the indulgence shown by the trial Court to the plaintiffs. A preliminary objection had been taken before the District Judge teat as the value of the subject -matter exceeded Rs.25,000 the revision was not competent but it was not dealt with.

The District Judge held the conduct of the plaintiff respondents to be contumacious, accepted the revision and set aside the order of the trial Court and rejected the plaint under Order VII, rule 11, C.P.C. While disposing of the constitutional petition, the High Court held that as the revision was not competent before the District Judge, its acceptance by him was without lawful authority and declared it to be so.

The grievance of the learned counsel for the petitioners is that such an objection to the pecuniary jurisdiction or the incompetence of the revision was not taken before the District Judge and having acquiesced, it could not be made the ground for challenging that order. He has also attempted to show that in fact the conduct of the plaintiff respondents was contumacious and as such they were not entitled to any discretionary relief as could be granted in the constitutional jurisdiction. He has also contended that by such a decision, he has been deprived of the remedies available to him under the Civil Procedure Code against the order passed by the trial Court for he could agitate the matter in the High Court in revision.

It is not denied even by the petitioners that the matter was beyond the pecuniary jurisdiction of the District Judge and for that reason on merits the findings of High Court, that decision suffers from a jurisdictional taint is unexceptionable. In the matter of court‑fee, numerous decisions of this Court have come which on merits do not sustain the case of the petitioners as strongly as they think. In the context reference may be made to the decisions of this Court in Shahns Khan v. Aulia Khan P L D 1984 S C 157, Siddique Khan v. Abdul Shakur Khan P L D 1984 S C 289 and Gulzar Hussain v. Abdur Rehman 1985 S C M R 301.

We find no merit in the petition and leave to appeal is refused.

M .I . Petition dismissed.

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