' This Regular Second Appeal arises from the judgment/decree dated 29-6-1983 of the learned Additional District Judge, Gujrat whereby the appellants first appeal was dismissed.
2. It was a suit for pre-emption in which initially Court fee was not properly paid. An objection was taken by the respondents-vendees and the Courts below concurrently found that failure to pay proper court-fee was contumacious and deliberate. They dismissed respectively the suit and the appeal.
3. Mr. Aftab Iqbal Chaudhry, Advocate for the appellants placing reliance on Siddique Khan v. Abdul Shakoor etc.. PLD 1984 SC 289 contended that the contumacy or mala fides will arise only if the appellants had failed to pay up a determinate court fee and that initially it was the duty of the trial Court to give him a special adjournment after determining the so-called deficiency in court fee. He added that the trial Court did not follow this procedure despite having framed an issue and dismissed the suit without requiring him to pay up the deficiency.
4. Mr. Hasnat Ahmad, Advocate for the respondents contested the point but to no avail. The authority is clear. Determination of the valuation for court fee, the deficiency therein, and granting of a special adjournment for making it good were rather sine qua non for dismissal of the suit.
Admittedly these points were not determined and the mere fact that the court fee as shown in the plaint was deficient was of no effect. The trial Court should have determined the valuation as also the deficiency and directed the appellants to make it good within a prescribed time. This was an obligation upon it, and without observing the same, the suit could not have been dismissed. The learned Additional District Judge also fell in error in this behalf. The contumacy, if any, has to be considered after such an initial adjournment allowed for this purpose is not availed of and a prayer is made for further adjournment under section 149, C.P.C. This was not the case here inasmuch as the appellants were denied even the initial adjournment which they had a right to get and the Court was under an obligation to allow. Looking at it from these premises, the judgment/decree cannot be sustained. The appeal is accepted and the case is remanded to the trial Court for deciding the issue of Court fee or its deficiency in accordance with the rule laid down in the above case. No further issue was canvassed before this Court nor even before the lower appellate Court.
The findings on other issues will remain intact and the suit will be decided afresh keeping in view the point of court-fee. The parties shall appear before the lower Court on 10-3-1987 by which time the records will in any event be sent back by the office. Parties to bear their own costs.