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Present: Muhammad Haleem, C.J. Nasim Hasan Shah, Shafiur Rahman, Nusrat and Zaffar Hussain Mirza, JJ
Civil Appeal No. 80 of 1981, decided on 4th November, 1985.
(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 5‑11‑1980 passed in R.F.A. ‑No. 209 of 1978).
‑‑‑Art. 185(2)‑‑Civil Procedure Code (V of 1908), O. VII, R. 11‑‑Punjab Pre‑emption Act (I of 1913), Ss. 21 & 30‑‑Court Fees Act (VII of 1870), Ss. 6 & 12‑‑Court‑fee, deficiency of‑‑Suit for pre‑emption, under valued‑‑Dismissed as time‑barred for non‑payment of court‑fee‑‑High Court took view that although specific valuation was not placed but substantial court‑fee was paid on plaint as filed and that it was a case of calculation made by one party as against a different calculation made by other, set aside judgment and remanded case‑‑Order impugned‑ Supreme Court, held, that issue involved was no longer open for consideration‑‑Correctness of impugned judgment being unexceptionable and appeal being time‑barred was dismissed.
Mst. Parveen v. Mst. Jamsheda Begum P L D 1983 S C 227 and Shahna Khan v. Aulia Khan P L D 1984 S C 157 ref.
(b) Constitution of Pakistan (1973)‑
‑‑Art. 185(2)‑‑Limitation Act (1X of 1908), S.5‑‑Appeal before Supreme Court under Art.185(2) of Constitution of Pakistan barred by 137 days‑ Dismissed as time‑barred.
Ch. M. Anwar Bhinder, Senior Advocate Supreme Court with Haji Ghias Muhammad, Senior Advocate Supreme Court assisted by S. Wajid Hussain, Advocate‑on‑Record (absent) for Appellants.
Haji Muhammad Anwar Buttar, Senior Advocate Supreme Court assisted by Ch. Akhtar Ali, Advocate‑on‑Record for Respondent:
Date of hearing: 4th November, 1985.
‑‑This appeal under Article 185(2) of the Constitution has been brought to challenge the judgment of the Lahore High Court, dated 5‑1‑1989 whereby the case has been remanded after setting aide the judgment and decree of the Civil Judge, Wazirabad, dated 29‑6‑1978 ‑dismissing the suit of the plaintiffs/respondents as barred by time for non‑‑payment of court‑fees.
2. Manzoorul Haq and 3 others had sold the land measuring 710 Kanals and 3 Marlas situated in village Kalair to appellants Allan Rakha and others for a sum of Rs.5,20,000 by a registered deed, dated 9‑1‑1975.
The respondents/ plaintiffs filed a suit on 9‑1‑1975 on the basis of their superior right of pre‑empting the sale paying court‑fee of Rs.8,989 on the valuation of Rs.1,19,850 calculated on the basis of 15 times the net profits of the previous year. The suit was contested by the appellants, inter alia, on the ground that the suit for the purpose of court‑fee and jurisdiction was under‑valued and was liable to be dismissed.
3. The suit was instituted on the last day of limitation. The trial Court framed issues on 28‑10‑1976. The issue No. 1 related to valuation of the suit and jurisdiction. The appellants first on 22‑2‑1978 applied to the Court that the said issue may be decided first. While the application was pending, the appellants made yet another application under Order V11, Rule 11, C.P.C. seeking rejection of the plaint on the plea that the plaintiffs had neither corrected the valuation of suit in time nor the deficiency in court‑fee was made up. The earlier application was not pressed sand the learned trial Court dismissed the suit on 29‑6‑‑1978, as having become time‑barred'. This decision was challenged by the plaintiff /respondents in the High Court in First Appeal which was accepted as per impugned judgment.
4. According to learned trial Court the plaintiffs had arbitrarily 'fixed the value of the suit for the purposes of court‑fee and jurisdiction calculated at 15 times the net profits for the precedent year without getting proper statement of the net profits prepared by the Revenue Authorities. Relying upon the statement of net profits produced by the appellants it was held that the suit should have been valued at Rs.3,46,246.65.
5. On appeal the contentions raised on behalf of the appellants were rejected by the learned Judge and it was held that although specific valuation was not done but substantial court‑fee was paid on the plaint as filed It was therefore, a case of calculation made by one party as against a different calculation made by the other.
6. In the circumstances the issue involved in this case is no longer open for consideration and is concluded by decisions of this Court in the case of Mst. Parveen v. Mst. Jamsheda Begum P L D 1483 S C 227 followed lay another decision in the case of Shahna v. Aulia Khan PLD 1984 S C 157 and several other decisions.
7. The correctness of the impugned judgment is unexceptionable. The appeal is also barred by 137 days. The same is, therefore, dismissed on merits as well as barred by time with no order as to costs.
M . I . Appeal
dismissed.
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