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Civil Petition for Special Leaver to Appeal No. 326 of 1980, decided on Ist July, 1985.
(From the judgment of Lahore High Court, Lahore, dated 5th December, 1979 in Civil Revision No. 747 of 1979).
‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), O.VII, r. 11‑ Deficiency in court‑fee‑‑Plaintiff entitled to grant of time for supplying deficiency‑‑Leave to appeal granted to examine contention that in light of latest decision of Supreme Court on question of court‑fee and limitation, order of trial Court passed in favour of plaintiff (petitioner) was not liable to be set aside in revision by High Court.
Mst. Walayat Khatun v. Khalil Khan and another P L D 1979 SC821; Muhammad Nawaz Khan and another v. Makhdoom Syed Ghulam Mujtaba Shah and another P L D 1970 S C 37; Shah Nawaz and 6 others v. Muhammad Yousaf and 3 others 1972 S C M R 179; Shahna Khan v. Aulia Khan and others P L D 1984 S C 157 and Siddique Khan and 2 others v. Abdul Shakoor and another P L D 1984 S C 289 ref.
Khalid Farook Qureshi, Advocate Supreme Court with Ejaz Ahmad Khan, Advocate‑on‑Record for Petitioner.
Nemo for Respondent.
Date of hearing: Ist July, 1985.
Leave to appeal has been sought from judgment, dated 5‑12‑1979 of the Lahore High Court; whereby a Civil Revision (arising out of a dispute relating to deficiency of court‑fee leviable in a suit for pre‑emption) filed by the respondent (vendee) side was allowed and an order allowing opportunity to the plaintiff (petitioner) to supply the deficiency in court‑fee, was set aside by placing reliance on some observations made in the case Mst. Walayat Khatun v. Khalil Khan and another P L D 1979 S C 821.
2. At the time of the filing of the suit for pre‑emption the petitioner had, it is stated in the impugned judgment, instead of calculating the amount of court‑fee on the basis of net profits, fixed the valuation the suit at Rs.30,000 "15 times of the annual lease money of the land in question and paid the court‑fee accordingly". On an objection from the defendant side mainly on the ground that the court‑fee had not been worked on obtaining net profits from the Patwari and that the lease money could not be made the basis of valuation of the suit, the learned trial Judge directed the plaintiff to correct the valuation on the basis of the net profits and pay the deficient court‑fee within the specified time. Before the expiry of the period allowed to the petitioner the respondent filed a revision petition in the High Court and the same having been allowed the plaintiff petitioner has sought leave to appeal.
3. Both the learned Courts noticed the two decisions of this Court in Muhammad Nawaz Khan and another v. Makhdoom Syed Ghulam Mujtaba Shah and another P L D 1970 S C 37 and Shah Nawaz and 6 others v. Muhammad Yousaf and 3 others 1972 S C M R 179. It was held by this Court in two recent judgments; Shahna Khan v. Aulia Khan and others P L D 1984 S C 157 and Siddique Khan and 2 others v. Abdul Shakoor and another P L D 1984 S C 289, that the law declared by this Court in the said two judgments in the cases of Muhammad Nawaz Khan and Shah Nawaz holds the field and that the decision in the case of Mst. Walayat Khatun as explained is these two judgments has not changed the law. The law as declared in the case of Muhammad Nawaz Khan and Shah Nawaz is to the effect that the plaintiff is entitled to grant of time under Order VII, rule 11 for supplying the deficient court‑fee as of right and that it is the duty of the Court to grant the same before rejecting the plaint under the said provision has been reiterated in the two last judgments of this Court. In that view of the matter learned counsel has argued that in the light of the latest decisions of this Court on the question of court‑fee and limitation the order of the learned trial Court passed in petitioner's favour was not liable to be set aside in revision by the High Court.
4. The question needs examination. Accordingly we grant leave to appeal.
5. Security Rs.1,000.
6. The appeal shall be made ready on the present record with permission to the parties to file additional documents which might be necessary at the time of the hearing of the appeal.
M. I. Leave granted.
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