' Constitutional Petition No.1356 of 1983 is directed against the order dated 17-2-1983 passed in revisional jurisdiction, by learned District Judge, Sheikhupura, rejecting the plaint in a pre-emption suit under Order VII, rule 11, C.P.C. on the ground of non-payment of deficient court-fee within a period fixed by the trial Court. Facts necessary for the disposal of the petition in brief are that one Ghulam Nabi son of Murad,. Jat by Caste alienated land measuring 112 Kanals 5 Marlas, for an ostensible sale price of Rs.21,000 in favour of Sher Ahmad and others through a registered sale- deed dated 27-11-1973. This sale was subjected to a pre-emption claim by Chaudhry Muhammad Sadiq through Civil Suit No.403/1, instituted on 16-11-1974 in the Court of Civil Judge, Ferozewala, District Sheikhupura. Muhammad Sadiq the original plaintiff expired during the pendency of the suit and his legal representatives were substituted in his place to continue the suit for pre-emption.
Defendants/vendees through their written-statement resisted the claim asserted against them and traversed all the allegations made in the plaint. Pleadings of the parties gave rise to the following issues framed on 23-10-1977:-
(1) Whether the suit is not properly valued for the purposes of court-fee and jurisdiction, if not, what is the correct valuation?
(2) Whether the land in dispute has not been correctly described in the plaint?
(3) Whether the alleged ostensible sale is not pre-emptible in view of the allegations contained in preliminary objection No.5?
(4) Whether the plaintiff has a superior right of pre-emption over the defendants?
(5) If issues Nos.3 and 4 are answered in favour of the plaintiff, subject to what price he is entitled to the decree prayed for?
(6), Relief.
2. Plaintiff concluded his evidence both oral and documentary on 4-3-1978, reserving his right to lead evidence in rebuttal to the evidence produced by the defendants. Defendants/Vendees delayed production of their evidence in Court. Vide order dated 9-6-1980, they were allowed to produce their witnesses on 15-9-1980. They produced three witnesses whose statements were recorded by the trial Court on 3-11-1980. Bashir Ahmad one of the vendees appeared as .W.4 on 26- 5-1982, when the evidence was closed except for production of documents which were placed on record on 14-9-1982. At the fag end of the trial, after expiry of almost 8 years since the suit was instituted, defendants, on 31-10-1982, presented an application under Order VII, rule 11 read with section 151, C.P.C. praying for rejection of the plaint on the ground that the plaintiff had not made good the deficiency in court-fee within the period fixed by the Court vide orders dated 17-11-1974 and 11-2-1975. This application was replied to by the plaintiff. Several objec tions were raised to the maintainability of this petition moved at this belated stage. It was stated in the reply that the deficient court-fee had already been paid. Stamps were purchased on 18-2-1976 and filed in Court on 22-3-1976 the next date fixed for hearing of the suit, in the presence of the parties and their counsel. No objection was raised then by the vendees to the entertainment of the deficient court- fee by ' the Court. Learned Civil Judge seized of the whole controversy, vide order dated 29-11-1982, observed that the question relating to deficiency of court-fee arid its legal effects in making up the said deficiency will be considered alongwith decision on merits. Petition made under Order VII, rule 11, C.P.C. in these circumstances was rejected. Order dated 29-11-1982 by learned Civil Judge, for facility of reference is reproduced below:-[URDU TEXT] [URDU TEXT] Vendees assailed this order in revisional jurisdiction before learned District Judge, Sheikhupura.
Vide order dated 17-2-1983, learned District Judge, through a fairly detailed order found that the conduct of the plaintiff exhibited contumacy and negligence in regard to making good of deficiency. Order passed by the trial Court was set aside and the plaint was rejected under Order VII, rule 11, C.P.C. on the sole ground that the deficiency in court-fee had not been made up within the period of limitation prescribed for filing the suit for pre-emption. This observation is found in the final paragraph of order dated 17-2-1983 where the learned District Judge observed:- "The respondents had not cared to give any application under section 149, C.P.C. for the extension of time in making up the deficiency in court-fee and they had directly made up the deficiency in court-fee without the permission of the Court at their own pleasure. All these circumstances show that the act of the respondents was contumacious and negligent in making up the deficiency in court-fee. In view of this matter, the trial Court had committed material irregularity and illegality in passing the impugned order. He had failed to exercise the jurisdiction vested in him. Resultantly, the revision petition is hereby accepted, impugned order of the trial Court is hereby set aside and the plaint of the respondents is rejected under Order VII, rule 11, C.P.C.as the deficiency in court-fee had not been made up within the period of limitation prescribed for filing the suit of pre-emption."
3. Plaintiffs call in question order dated 17-2-1983 of District Judge, Sheikhupura in Constitutional jurisdiction. On 25-4-1983, the petition was admitted and the following order was made by this Court:- "Learned counsel contends that revisional jurisdiction was not attracted against the order dated 29-11-1982 of the learned Civil Judge as that order does not amount to a "case decided". Learned Civil Judge under the impugned order has in fact refused to pass an order on the application submitted and to reject the plaint under Order VII, rule 11, C.P.C. as the final judgment was only to be announced in the suit itself. He further observed that an issue with regard to the deficiency of court-fee has been framed and the said issue will be decided alongwith other issues framed in the suit.
(2) The question raised requires consideration. Admit. Notice.
(3) Notice with regard to relief prayed in the petition itself for an early date. Respondents, meanwhile are restrained from alienating the property in dispute."
4. It will be necessary to state certain facts, to show as to how the deficienty in court-fee was made good. The plaint in the pre-emption suit, in the first instance, was assessed at Rs.180 fifteen times of the annual net profits, arising from the suit land in the year preceding the presentation of the plaint.
This was vide para. 8 of the plaint. However, it was stated in the said paragraph that in case deficiency was found out on the basis of a Jhar Paidawar, the plaintiffs will make good the deficiency in court-fee in accordance with the direction of the Court. The suit as stated above was instituted on 16-11-1974. Muhammad Sadiq predecessor-in-interest of the plaintiff, was directed vide order dated 17-11-1974 to have a Jhar Paidawar before 11-2-1975 and pay court-fee accordingly. Jhar Paidawar was not available by the said time and the Court accordingly allowed extension till 6-5-1975. Plaintiff could not succeed in obtaining the Jhar Paidawar. The plaintiff managed to get prepared the said annual statement of net profits, as stated in the writ petition two or three days before 18-2-1976. Requisite amount to purchase the court-fee stamps was deposited in the Ferozewala treasury, on 18-2-1976 and stamps obtained were produced in Court on 22-3-1976, on a date fixed for hearing in the presence of the parties and their respective counsel.Thereafter as stated above, civil suit, after framing of the issues, proceeded to its final end where it stood when order dated 29-11-1982 was passed by the trial Court. In this background learned counsel Muhammad Abdullah Bajwa, Advocate contended and raised following points in support of the writ petition:-
(i) Order dated 29-11-1982 passed by learned Civil Judge, Ferozewala was not a "case decided", amenable to revisional juris diction under section 115 of the C.P.C. District Judge, therefore, had no jurisdiction to interfere and reverse order dated 29-11-1982 which simply postponed the decision on the question of court-fee reflected in issue No.1 to be taken up alongwith decision on other issues.
(ii) Learned District Judge, in revision, directed against order dated 29-11-1982, refusing to decide the question of court-fee on a miscellaneous application under Order VII, rule 11, C.P.0 and postponing its decision till the suit was taken up for decision on merits, could not have rejected the plaint and guillotined the suit, when the proceedings in the suit had almost concluded. The matter relating to deficiency in court-fee was not decided by the trial Court so far and subject-matter in dispute before the revisional Court only was the propriety and legality of order dated 29-11-1982;
(iii) Learned District Judge in the absence of any decision on issue"s) 1 by the trial Court, could not step in in his revisional jurisdiction to reject a plaint. Impugned order dated 17-2-1983 has virtually decided issue No.1. This course as the learned counsel put it was a gross misuse of revisional jurisdiction. In case learned District Judge felt that the question of deficiency in court-fee was to be decided prior in time as preliminary 'issue, such a direction could have been made to the trial Court.
(iv) The course adopted has deprived the plaintiffs of their right of appeal/revision. Had the suit proceeded in its normal course, the plaintiffs were entitled to a right of appeal and revision in case the decision went against them. Order passed in revision is final subject to Constitutional Jurisdiction. This has immensely prejudiced the plaintiff.
5. Deficiency in court-fee was made good in the presence of the parties and their counsel. None raised objection at the appropriate time. This act/conduct amounted to a clear estoppel. Objection raised after six and half years to the act of the plaintiff in not making up the deficiency within the time fixed was clearly not entertainable.
' Trial Court had neither determined the exact amount of court-fee payable nor had directed the plaintiff to make good the deficiency so found out, within a time fixed by it. In the absence of such a direction, the plaint could not have been rejected. Composite order issued to make good the deficiency in accordance with Jhar Paidawar was not a correct and legal order disobedience of which could result in rejection of the plaint and that too when the suit was ripe for decision on merits.
6. Mr.C.A.Rehman, learned counsel representing the vendees respondents herein has supported the revisional order of District Judge. He submitted that plaint could be rejected by the Court at any stage including the stage at which the present suit was. Deficiency was admitted by the plaintiffs.
Mere placement of court-fee stamp papers on file without a proper order of the Court in its support did not amount to according a permission as envisaged by section 149 of the Code of Civil Procedure. Conduct of the plaintiff in valuing the plaint at ludicrously low value in the absence of any explanation, and non-submission of Jhar Paidawar in time, speaks volumes for their negligence and contumacy. There was thus no legal bar operating .on the powers of District Judge acting in revision, to pass any order, he deemed fit, including an order rejecting the plaint.
Impugned order was eminently a just, proper, and legal order when acount was taken of the nature of the right asserted through suit brought by the plaintiff against the vendees.
7. I have heard learned counsel at length and have anxiously attended to their submissions made at bar.
8. Suit for pre-emption was instituted on 16-11-1974. A direction was issued to the then plaintiff Chaudhry Muhammad Sadiq to obtain Jhar Paidawar and pay court-fee in accordance therewith.
The Court did not determine the exact amount of court-fee payable on the plaint laid before it.
Determination of the amount of court-fee payable on suit was left in the hands of the plaintiffs.
Passing of such a composite order, by the Court in view of the pronouncement of this Court in Malik Jan Muhammad v. Shukaruddin and 6 others 1980 CLC 186, a Division Bench judgment, was not legally correct. High Court, in the above-noted precedent observed:- "It obviously pre-supposes that there is already a determination about the required stamp papers insufficiency therein, and the direction to supply the requisite, that is to say the fall short.
' It cannot be that the Court may take no steps to determine the facts and issue a general and omnibus direction to supply whatever be the requisite stamp papers. When a law provides a penalty for non-compliance, as it does in the provision under discussion by rejection of the plaint, it always lays down with exactitude what is required to be complied with. Therefore, it seems to us that when a Court does not specify what are the requisite stamp papers which a plaintiff has to supply but leaves the matter in general terms to make up whatever the deficiency in the court-fee may be, in the hands of the plaintiff, it cannot invoke its powers under Order VII, rule 11, C.P.C. because there is no failure to comply with any definitive direction."
' Their Lordships of the Supreme Court, in case of Mst. Parveen v. Mst. Jamsheda Begum and another PLD 1983 SC 227 have also observed:- "That unless the exact amount of court-fee payable is first determined by the Court and the plaintiff directed to make good the deficiency so found the plaint cannot be rejected."
' Supreme Court also observed:- "It may also be observed that the learned trial Judge could not have rejected the plaint under Order VII, rule 11, C.P.C. on the mere discovery that the claim was under valued, unless under clause
(b) of rule 11, the plaintiffs having been required by the Court to correct the valuation within a time specified by the Court, had failed to do so. Similarly regarding insufficiency of court-fee, the plaint could be rejected under clause (c) of rule 11, if the plaintiffs, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, failed to do so. In both these eventualities, the plaint could have been rejected under Order VII, rule 11, C.P.C. and it would not have been proper, without recourse to this provision, to dismiss the suit as time-barred. It could not be said that if the suit was within time on the day the plaint was duly presented, it became time-barred simply because the plaint could be rejected under clause (b) or (c) or for that matter clause (a) or (d) of rule 11, (after the period of limitation) for the reasons mentioned in the said clauses, the suit could not be dismissed on the ground of limitation merely because the plaint when originally otherwise duly presented in a Court, was not correctly stamped. Section 3 of the Limitation Act, whereunder a suit can be dismissed applies only if it is instituted after the period of limitation. It is not the case of the appellant that as visualized by the explanation to section 3 of the Limitation Act, the plaint was presented, not to the proper officer, or after the expiry of limitation.
And if it was presented properly before a proper Officer prior to the expiry of period of limitation then the relevant provision for consideration would be Order VII, rule 11, section 149, and in some cases section 148, C.P.C. as also section 10(ii) of the Court Fees Act, whereunder a suit can be dismissed for non-compliance with the order of the Court for supply of the requisite fee and not on the ground that for the some reasons it had become time-barred. The two considerations would be totally different."
' Necessary court-fee stamps, in accordance with the computation made on the basis of Jhar Paidawar were filed in Court on 22-3-1976. None objected then. An issue regarding deficiency in court-fee and its effect on the suit, already exists. Trial Judge had simply observed that the question relating to deficiency in court-fee could not be taken up separately on a miscellaneous application at the stage when the parties had concluded their evidence and the suit was ripe for decision on merits. The view of the trial Judge was that decision in court-fees at the stage when the evidence had already been recorded on all the issues was not proper. It simply postponed the decision on this aspect of the controversy till such time that the whole matter, arising for decision in the pre-emption suit came up for hearing on merits. Learned Civil Judge in a way refused to treat the question of court-fee as preliminary issue. The decision of the trial Court refusing to take up the controversy relating to the deficiency in court-fee and its payment after the prescribed period, till the issue of court-fee framed by it came up on merits alongwith the other issues, was alone subject-matter of challenge in revisional jurisdiction. The term "case decided" not defined in the Code of Civil Procedure has been subject-matter of legal debate before the superior Courts of the Sub-Continent before and after Partition. Courts have differed on its meanings. In some juris - dictions, the terms has been equated with final adjudication while in others it has been found to be more comprehensive than the word "suit". This controversy in view of the recent trend in the judicial pronouncements, seems to favour the view that it does not relate only to the decision of the whole controversy but the term equally applies to any state of facts juridically considered which ma ultimatel affect the rights of the parties in regard to the pending is. T us, interpreted, it includes the decision of a substantial matter in the course of the trial of the suit. It is in this sense that an interlocutory order deciding a substantial question in controversy between the parties in a suit affecting their rights will be taken to be a "case decided". But this alone is not sufficient. Revisional Court will step in only if the following foundational conditions are also fulfilled:- .
(a) There should be a case decided;
(b) It should be a decision recorded by a Court subordinate to the High Court.
(c) Decision/order is not amenable to appeal.
' These three essential conditions lay foundation to invoke revisional jurisdiction of the Court. After these essential conditions are fulfilled, jurisdiction to interfere is hedged in further and can be exercised only when the subordinate Court exercises a jurisdiction not vested in it or (ii) fails to exercise jurisdiction so vested; or acts in the exercise of jurisdiction illegaly or with material illegality. Unless the conditions aforenoted are found present in a case, the revisional Court cannot step in to interfere with the decision of the subordinate Court. Reference may be made to S.Zafar v.
Abdul Khaliq PLD 1964 Kar. 149 and Bibi Gurdevi v. Chaudhri Muhammad Bakhsh and others AIR 1943 Lah.
65.
9. It is correct that the issue relating to court-fee should ordinarily be taken up for decision as preliminary issue so that this vexing question is decided at the earliest and neither of the parties should be left in doubt about the fate of the ultimate decision. Decision about the amount of court- fee payable on the plaint, therefore, in all propriety be treated as preliminary issue and decided first so that in case some deficiency is found out it can be made good under the direction of the Court and revenue secured to the State also. Applying the stringent provisions of Order VII, rule 11, clauses (b) and (c) of the Code of Civil Procedure at the end of the trial, when the whole exercise has been made by the parties and the Court, though may be permissible under law, yet may not fit in the justness of the cause and propriety. A litigant may then leave with a feeling that if it was to so happen as it has in the case under consideration after such a prolonged trial and the controversy choked at the end unceremoniously it could well have happened and taken place much earlier saving time and expense of the parties and the valuable time of the Court also. Deficiency in court- fee was made good. Necessary court-fee stamps were placed on file on the date fixed for hearing and was not objected. Issues were then framed, by the trial Court including the one relating to deficiency in court-fee. Parties went to trial which consumed almost six years and when the proceedings were coming to an end, a miscellaneous petition under Order VII, rule 11, C.P.C. was moved which, in the circumstances abovenoted, was turned down by the learned Civil Judge. Even if the decision made by the trial Court is considered to be a "case decided", the Court had neither refused to exercise jurisdiction nor exercised jurisdiction which was not vested in it. None of the clauses of section 115, clauses (a) to (c) applied to the case. Learned District Judge, therefore, in exercise of revisional jurisdiction conferred on him under section 115(2) of the Code in disregard of the enacted law, ordered rejection of the plaint on the sole ground of deficient court-fee, depriving the plaintiffs, the normal remedies of appeal or revision. If the case had been decided by learned District Judge in his original jurisdiction, the matter could have been appealed against. Since he exercised his powers under section 115(2), C.P.C., it could be challenged only in constitutional jurisdiction as further revision to the High Court was barred. On the facts of the case, the interest of justice would have been better served if the learned District Judge could have left the controversy to be dealt with by the trial Court for decision on all the issues framed including the one relating to deficiency in court-fee. Even otherwise it was primarily the function of the learned trial Court to decide question of court-fee as reflected in issue No.1 by exercising its own jurisdiction vested in it.
It is well-established that when a Court/Tribunal is vested with a jurisdiction how low it may be, it is that Court/Tribunal which has to exercise its jurisdiction and exercise of that jurisdiction by a higher Court/Tribunal without allowing the former to exercise it will be usurping the jurisdiction of the lower Court/Tribunal which is not permissible under law. Rejection of plaint under Order VII, rule 11, clauses
(b) and (c) of Code in revisional jurisdiction was clearly an order passed in excess of jurisdiction.
This has deprived the plaintiff of a right of appeal/revision also, Impugned order has caused grave miscarriage of justice and cannot in all propriety be called a just or a legal order. In view of what has gone before, I feel that it is a fit case for interference in equitable constitutional jurisdiction. Writ petition is allowed. Order dated 17-2-1983 of learned District Judge, Sheikhupura is set aside and is declared to have been passed without lawful authority. Necessary corollary of this declaration is that the trial Court who is in revision of the suit shall proceed to decide the suit on merits on the issues already framed.
' In the circumstances parties are directed to bear their own costs. Copy of the order be sent without delay to the trial Court for further proceedings in the suit.