' Muhammad Rafique, petitioner/ defendant impugns the appellate order dated 12-2-2004, whereby an appeal filed by Muhammad Riaz respondent/plaintiff was allowed and the case was remanded to the learned trial Court in circumstances noted below.
2. The facts of this case are simple. Muhammad Riaz respondent/plaintiff filed a suit seeking possession of the suit-land through pre-emption. The suit, admittedly, was filed on 12-10-2002. On that very day, the learned trial Court directed the respondent/plaintiff to deposit Zar-eSoyem. The Court itself did not fix any period within which the Zar-e-Soyem was to be deposited but adjourned the hearing of the case to 12-11-2002. The respondent/ plaintiff made the deposit of Zar-e-Soyem on 12-11-2002.
3. Muhammad Rafique petitioner/ defendant thereupon filed an application under Order VII, rule 11, C.P.C. Praying that the plaint of the respondent be rejected. It was the case of the petitioner that as per provisions of section 24 of the Punjab Pre-emption Act, the Zar-e-Soyem had to be deposited within 30 days from 12-10-2002, and, therefore, the last date for making deposit of Zar-e-Soyem was 11-11-2002. The fact that the thirty day period, set out in section 24 aforesaid, expired on 11-11- 2002, is not in dispute. Learned counsel for the respondent, however, states that since the trial Court had not fixed a period within which the Zar-e-Soyem was to be deposited, the respondent/plaintiff was justified in making the deposit on 12-11-2002.
4. To support his contention, learned counsel referred to the case titled Mian Muhammad Lutfi v.
Mian Muhammad Talah Adil NLR 2000 Civil 422. I have gone through the cited precedent and note that the facts of that case are significantly different from the circumstances of the present petition.
The precedent case, as such,. Is distinguishable on facts. In that case, the trial Court had actually directed the plaintiff to deposit the Zar-e-Soyem within 30 days from its order. Such deposit was made on the 30th day calculated from the date of the order. The date of deposit was beyond the period of 30 days prescribed in section 24 but within the thirty-days period allowed by the trial Court. It is in these circumstances that a Full Bench of the High Court held that the plaintiff could not be prejudiced by an error made by the Court and, therefore, the deposit made within the period allowed by the Court was to be treated as a valid deposit.
5. In the present case, the above circumstances do not exist. The thirty-day period, which is ,a mandatory requirement of section 24 of the Pre-emption Act, undeniably expired on 11-11-2002.
Therefore, the deposit made on 12-11-2002 was beyond the period allowed by law. The plaint was, therefore, rightly rejected under Order VII, rule 11, C.P.C. I am fortified in my view by the law laid down in the case titled Haji Abdul Qadir v. Zafar Shaheen NLR 1997 Civil 569.
6. In the above circumstances, the learned Appellate Court was not justified in passing the impugned order dated 12-2-2004 and remanding the case to the learned trial Court. As a consequence, the appellate order of remand dated 12-2-2004 is set aside, subject to the condition set out in para. 8 below.
7. Before parting with this judgment, I need to take note: of a preliminary objection raised on behalf of the respondent/plaintiff. It was contended by his learned counsel that court-fee of Rs.4,500 is payable on the present revision petition but has not been paid. On this basis, it was argued that the petition is not maintainable. Learned counsel for the petitioner, however, pointed out that the respondent/plaintiff had himself filed an appeal before the learned lower Appellate Court on which the requisite court-fee of Rs.4,500 was payable but no court-fee was actually paid by the respondent/plaintiff.
8. The failure of the respondent/ plaintiff to affix requisite court-fee on his memorandum of appeal does not absolve the petitioner from his liability to pay court-fee on the present revision petition in accordance with Item 13-A of the First Schedule to the Court Fees Act, 1870. In the circumstances, it is ordered that the petitioner shall pay court-fee of Rs.4,500 on the present revision petition within two weeks from today, failing which this revision petition shall, without further orders stand dismissed.
9. The amount of Rs.4,500 payable by the respondent/plaintiff on his memorandum of appeal before the learned lower Appellate Court, shall also be recovered from him by the District Collector, Sheikhupura. A copy of this judgment shall be sent to the District Collector, Sheikhupura.
10. This petition, however, is allowed in the above terms, subject to the condition set out in paragraph 8 above.