Respondents Nos. 1 to 7 initially filed a suit for declaration which was subsequently amended as a result whereof the character of the suit was changed to one for specific performance. Petitioner, one of the defendants in the suit, raised an objection regarding the court-fee payable on the amended suit. This gave rise to the following additional issue:-- Whether the suit is maintainable without court-fee with a new prayer? OPP.
Petitioner made an application before the learned trial Court on 5-5-1988 praying that "the plaintiffs be directed to pay Rs. 15,000 as court-fee or in the alternative the issue of court-fee may kindly be decided before entering into the merits of the case according to the principles laid down by august High Court and Supreme Court of Pakistan." This application was dismissed by the learned trial Court on 31-7-1988 holding that the issue of court-fee shall be decided along with other issues and in case of any deficiency in court-fee, plaintiffs will be directed to make up the same. Petitioner filed a revision petition which, too, has been dismissed by the learned Additional District Judge on 20-12-1988 holding that "it is better that the instant issue be also dealt with other issues." Feeling aggrieved with these orders, petitioner has approached this Court through the present constitutional petition praying that the aforementioned order of the trial Court and revisional order of the Additional District Judge "be declared to be of no legal effect and the respondent No. 13 be directed to take up and decide the preliminary issue as to court-fee............---
2. I have heard the learned counsel for the parties. Learned counsel for the petitioner relies on a judgment reported in PLD 1982 Baghdad-ul-Jadeed 38 and contends that the issue of court-fee ought to have been decided as a preliminary issue. Learned counsel appearing for the respondents does not dispute this proposition but he points out that the evidence of both the parties on the issues on merits have already been concluded and the case is now fixed on 11-2- 1989 for A defendants' evidence on the issue of court-fee. He submits that if the defendants lead evidence on the next date of hearing, the whole suit can be finally decided thereafter. These submissions have not been controverted by the learned counsel for the petitioner. In the circumstances, I do not consider it necessary to set aside the impugned orders and to issue the direction prayed for by the petitioner. Learned trial Court is, however, directed to take the defendants' evidence on the issue of court-fee on the next date of hearing and thereafter proceed to decide the whole suit preferably within this month. With this observation, writ petition stands disposed of with no order as to costs.