This Civil Revision calls in question the judgment/decree dated the 19th of March, 1985, of the learned Addl. District Judge, Sialkot, whereby the respondents-plaintiffs' appeal was accepted and their suit for pre-emption was decreed.
2. The respondents sought pre-emption on the basis of collateral ship with the vendors. The petitioners-defendants denied it and took up a further plea that the suit was not maintainable for want of proper court-fee. The trial Court untimely dismissed it giving a finding on issue No.3 adverse to the respondents plaintiffs on the point of court-fee. It, however, found that the respondents were collaterals of the vendors. In appeal, the suit was decreed giving time to the respondents to pay up court-fee not only on the plaint but also on the memo of appeal. This deficiency was subsequently paid up within the time fixed by the lower appellate Court. The petitioners vendees aggrieved by it preferred the present revision petition.
3. Mr. Taqi Ahmad Khan, Advocate for the respondents at the outset conceded that they were not collaterals of one of the vendors, namely, Mst. Sardaran Bibi. As a consequence their suit to that extent could not succeed and the decree requires adjustment. However, on behalf of the petitioners Mr. Khan Muhammad Bajwa, Advocate, submitted that by retaining the share of the vendor Mst. Sardaran Bibi they had become co-sharers in the Khata and as such could succeed on the basis of Shariat. I am afraid Shariat applied to cases not decided before the 31st of July, 1986.
The decree under consideration was passed on the 19th of March, 1985, and, therefore, the old law will apply whereby collaterals of the vendor would be preferred to the co-sharers. There was no point in the contention raised by Mr. Bajwa. Next, he argued that the way court-fee was obtained from the respondents/pre-emptors was opposed to the dictum laid down in Siddique Khan v.
Abdul Shakur Khan PLD 1984 SC 289 which made it compulsory for the Court to stay proceedings to enable the plaintiff to make good the deficiency of court-fee. According to Mr. Bajwa in this case proceedings were not stayed and that giving the respondents time in the final decree to pay up the deficiency was not countenanced either by any provision of law or authority. I regret I am not persuaded by the argument. The rule enunciated in the Siddique Khan's case is that an adjournment is obligatory and this obligation was discharged by the Court, of course, in the final decree. It may be slightly irregular to so accommodate a plaintiff but compliance with the requirement of giving an obligatory adjournment will be deemed to have been observed. As a matter of fact the court-fee was paid within the time allowed by the appellate Court. The mischief was removed and the suit had become quite competent.
4. As a result, the revision petition is accepted partly and the impugned decree is modified to the extent that the share of the vendor Mst. Sardaran Bibi measuring 1 Kanal 3 Marlas shall be retained by the petitioners-vendees. The precise area sold by her is, of course, subject to calculation by the Executing Court. The proportionate amount, namely, Rs.920 relating to that share shall be refunded to the respondents/pre-emptors.
H.B.T./G-223/LPetition portly, accepted.