On the last date of hearing, it was directed that the respondents shall be served through registered post and by courier service for today. In obedience to the said order, notices were sent to all the respondents, through above noted modes of service, receipts whereof have been placed on record. Despite the issuance of notices, none has entered appearance on behalf of Respondents Nos, 1 to 6 therefore, they are proceeded exparte. MAIN CASE The petitioner/plaintiff, through the filing of the present Constitutional petition, has called in question judgment dated 31.5.2004, 'whereby the learned Addl. District Judge, as a revisional Court, accepted respondents' revision petition and set aside orders dated 17.11.2003 and 21.1.2004, passed by, the learned trial Court, through which it declined to reject the plaint in petitioner's suit for specific performance.
3. Briefly stated the facts, as discernible from the revision petition, are that on 21.11.2000, the petitioner filed a suit for possession through specific performance of an agreement dated 20.4.1995 and cancellation of Sale-Deed No, 5698, dated 11.10.1995, thereby affixing a token Court fee of Rs, 1000/-, originally against Respondents Nos, 1 to 5, however, on an application filed by Respondents Nos, 6, 7 and 8, they were subsequently impleaded as party to the suit. On 21.9.2002, the respondents filed an application under Order VII Rule 11 CPC, for rejection of the plaint, on the ground that despite order dated 21.11.2000, the plaintiff has not made up the deficiency in the Court Fee. The said application was taken up by the learned trial Court, on 17.11.2003, together with another application under Order 1 Rule 10 CPC, and the learned trial Court, vide order of even date, directed the petitioner to make up the deficiency of Court fee till the next date of hearing, i,e, 15.12.2003. It appears from the record 'Oat the petitioner did not affix the deficient Court fee within the time fixed by the Court. Needless to add that even no application, seeking enlargement of time for making up the deficiency in the Court Fee, was filed by the petitioner. Some of the respondents filed yet another application seeking the rejection of the plaint on the similar ground. On 21.1.2004, when the aforenoted two applications were fixed before the learned trial Court, upon the presentation of Challan Form by the petitioner, showing the deposit of Rs, 15,000/- in the treasury, for the purchase of Court Fee, the learned trial Court dismissed both the applications, vide order dated 21.1.2004. The respondents challenged the orders dated 17.11.2003 and 21.1.2004, through filing revision petition and the learned Addl. District Judge allowed the same, set aside the aforesaid orders and passed an order regarding the rejection of the plaint, vide judgment dated 31.5.2004, hence the present Constitutional petition.
4. The learned counsel for the petitioner has contended that although the petitioner made up the deficiency in the Court Fee under the directions of the learned trial Court, yet the learned Addl.
District Judge rejected the plaint in complete oblivion of the facts of the case and law on the subject, thus, according to the learned counsel, the impugned judgment, passed by the revisional Court is without jurisdiction. He has relied upon H/Dr. Ashfaq Ahmad vs. H/Dr, Muhammad Gulzar Kiani and 3 others (2004 CLC 414), Abdul Aziz vs. Malik Lal Khan and others (2004 SCMR 119) and Sikandar Khan and 3 others vs. Muhammad Ashraf and another (PLD 2003 Lahore 398).
Conversely, the learned counsel for the contesting respondents has submitted that the petitioner has concealed the material facts from this Court inasmuch as copy of order dated 21.11.2000, wherein the learned trial Court directed the petitioner to make up the deficiency in the Court Fee, has neither been placed on record, nor the said order find mention in the present petition. He has added that the petitioner, even failed to comply with the terms of latest order dated 17.11.2003, wherein, he was directed to make up the deficiency in the Court Fee before the next date of hearing, i,e, 15.12.2003.
5. Admittedly, the petitioner while invoking the jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, has challenged the judgment, passed by a revisional Court in exercise of its powers under Section 115 C.P.C. and, thus, the question arises for determination is as to whether the Constitutional petition is competent and maintainable against the revisional order passed in a civil litigation.
6. The said legal question was examined in Muhammad Sami Ullah Khan vs. Additional District Judge and others reported as PLJ 2001 Lahore 960 and this Court while relying upon Noor Muhammad vs. Sarwar Khan and 2 others (PLD 1985 SC 131), Muhammad Zahoor and another vs. Lal Muhammad and 2 others (1988 SCMR 322) and Muhammad Khan vs. Ghulam Fatima (1991 SCMR 970) came to the conclusion that a revisional order arising out of civil litigation could not be challenged in Constitutional petition. It was further held that if an order passed by a District Judge, in exercise of revisional jurisdiction, is although illegal, yet passed with jurisdiction, then the same cannot be assailed in a Constitutional petition and if an order passed by the revisional Court is wholly void or coram-non-judice, of course, a writ petition against such a revisional order, would be competent. Except for such orders in no other case an order passed by District Judge, as a revisional Court, in Civil litigation can be challenged through filing the Constitutional petition.
7. In the above perspective, I have examined the impugned judgment dated 31.5.2004, rendered by the learned Addl. District Judge and find that the said judgment is neither void nor without jurisdiction and the same was passed by the learned Addl. District Judge, having jurisdiction in the matter. In view whereof, to my mind, the present petition is incompetent, not maintainable and deserves to be dismissed on this sole ground.
8. Even otherwise, the petitioner has got no case on merits. I find from the record that the conduct of the petitioner from the very inception of the case was contumacious and negligent. It is evident from para 8 of the plaint that although the petitioner has valued his suit, for specific performance, for the purposes of Court Fee and jurisdiction at Rs, 22,00,000/-, yet only affixed the Court Fee of Rs, 1000/- with the assertion that "the deficiency in the Court Fee will be made up as and when ordered by this Honourable Court". Thus, it is clear that the petitioner and his learned counsel were aware that they are filing the plaint with a deficient Court fee. There is no ambiguity in law that in a suit for specific performance of contract of sale Court fee is always paid on the amount of consideration, mentioned in the agreement. In para 2 of the plaint, the petitioner has averred that "the defendant No, 1 vide agreement to sell dated 20.4.1995, agreed to sell the above said property, which will be hereinafter called as property in disputed in favour of the plaintiff for a total consideration of Rs, 22,00,000/-" It flows therefrom that even according to the stance of the petitioner, the consideration of the disputed property was Rs, 22,00,000/- and he was to pay the Court fee On the said amount. The petitioner and his learned counsel were conscious about the legal position regarding the payment of Court fee and that was the reason why in para 8 of the plaint, it was stated that the definicency in the Court Fee will be made good as and when directed by the Court, completely forgetting that it is the duty of a litigant to pay the proper Court Fee at the time of initial presentation of the plaint. Needless to add that in suit for specific performance of a contract of sale, the amount of Court Fee to be paid on the plaint is the amount of consideration, which, in the present case, as noted above, is, admittedly, Rs, 22,00,000/-. In this regard Section 7(x)(a) of the Court Fee Act, 1870 can be referred. Additionally, the suit was filed by the learned Advocate of this Court, who, according to the address given in the plaint, practices at Lahore. It cannot be believed that an Advocate of this Court, practicing at Lahore, was not aware about the settled law that in suits for specific performance of agreement, Court Fee is to be paid on the amount of consideration, mentioned in the agreement to sell.
9. It has rightly been pointed out by the learned counsel for the respondents and is also discernible from the impugned judgment that the learned trial Court, after receiving the plaint, on 21.11.2000, directed the petitioner to make up the deficiency in the Court. Fee, but the petitioner, even ignored the said order and did not bother in affix the additional Court Fee until the time, the respondents filed the application for the rejection of the plaint, on 21.9.2002. Still the learned trial Court, taking a lenient view and being oblivious about the passing of the initial order dated 21.11.2000, directed the petitioner to make up the deficiency in the Court Fee before 15.12.2003. Even the said order could not deter the petitioner and he contumaciously avoided to pay the additional Court fee within the stipulated period taking advantage of the transfer of the case from one Court to another under the administrative arrangements. In any case, the petitioner was to affix the Court fee till the next date i,e, 15.12.2003, yet he did not comply with the said order, completely forgetting that the transfer of the case would not in any way enlarge or extend the period fixed by the Court for making up the deficiency in the Court fee. It is pertinent to mention, here that during all this period, the petitioner did not file any application, seeking extension in time till some of the respondents filed a second application on the same subject matter. Even on 21.1.2004, no Court fee was paid and the petitioner felt contented only by producing challan form showing the deposit of Rs, 15,000/- for the purchase of Court fee. For all practical purposes, the Court fee was paid on 28.1.2004. It flows from the above that the order passed by the learned Court, for making up the deficiency in the Court Fee, as far back as on 21.11.2000 was complied with by the petitioner on 28.1.2004, i,e, after the expiry of a period of 3 years and 2 months. Additionally, the petitioner failed to explain as to why initially the proper Court fee was not paid on the plaint and what are the reasons for not complying with the various orders of the Court. The above narrative clearly establishes the persistent contumacious negligence on the part of the petitioner in paying the proper Court fee and subsequently making up the deficiency in the Court fee.. To my mind, such a negligence does not merit to be excused, specially when valuable right has accrued favouring other party. In case of acceptance of petitioner's Constitutional petition, it would amount to giving premium to one's own negligence at the cost of the other party, which is neither warranted in law nor in equity. In the above back drop, I am not inclined to exercise my Constitutional jurisdiction in the matter, which is otherwise discretionary and equitable.
10.As regards the judgments relied upon by the learned counsel for the petitioner, they were rendered in different facts and circumstances of the case, thus, the principles laid therein are not attracted in the present case and the said judgments are of no avail to the petitioner.
11.Upshot of the above discussion is that the present petition is incompetent and devoid of merits as well, thus, the same stands dismissed on both the counts, leaving the parties to bear their own costs.