' This application under section 115 of Civil Procedure Code by the plaintiffs arises out of a partition suit dismissed by the trial Court on 22-9-1981, for being barred by `res judicata'; Order IX, Rule 9, C.P.C. And the plaint in the partition suit being insufficiently stamped and the appeal filed against the dismissed of the suit failing for non-payment of required court-fee payable on the memorandum of appeal.
2. A residential hones in the city of Sheikhupura belonged to one Haji Sardar Muhammad. He died after enforcement of Shariat. Upon his death, he was survived by three sons. Namely Nishan, Muhammad Sharif, Muhammad Ramzan and five daughters namely Mst. Ghulam Sakina, Ghulan Sughran, Nazir Begum, Bashir Begum and Mst. Razia Sultana. Sons and daughters of the deceased inherited ownership rights in the house in accordance with their Muslim Law shares. Two brothers and five sisters namely Muhammad Ramzan and others sued their brother Nishan for separate possession through partition of their shares in the house in dispute. On 15-6-1980, parties agreed that the valuation of the partition suit for the purposes of court-fee and jurisdiction was Rs,50,000.
Thereupon, the trial Court fixed the valuation of the suit at Rs,50,000 and called upon the plaintiffs to make good the deficit court-fee on Rs,50,000 and adjourned the proceedings in the suit to 15-7- 1980 for compliance. On this date of hearing, neither deficit court-fee was paid nor plaintiffs appeared. Consequently, the Court dismissed the suit under Order IX, rule 8, C.P.C. And simultaneously rejected the plaint under Order VII, Rule 11, C.P.C. For non-payment of deficit court- fee. This order of the trial Court was neither challenged in appeal nor was the suit restored under Order IX, Rule 9, C.P.C. Instead, five sisters got together and brought a suit for partition of their shares in the house, against their three brothers namely Nishan, Haji Muhammad Ramzan and Muhammad Sharif on 23-7-1980. Nishan resisted partition suit and amongst other defence pleas conteste it by pleadng bar of `res judicata', as also prohibition under Order IX, Rule 9, C.P.C. Further, it was asserted that valuation of the suit for the purposes of court-fee and jurisdiction was incorrectly assessed. On 3-12-1980, the trial Court settled following two preliminary issues:--
(1) Is the suit barred by res judicata? OPD.
(2) Is the suit incorrectly valued. If so, its effect? OPD.
(3) Order.
' Parties did not give oral evidence. Nishan defendant produced copy of the plaint in the earlier partition suit Exh. D1, statement of Muhammad Ramzan withdrawing his claim Exh.D2, statement of counsel for the parties Ext.D3 and decision of the trial Court Exh.D4. Plaintiff did not rebut the above material. Uon consideration of the documentary evidence, the trial Court found that the suit was hit by principle of res judicata and was barred by Order IX, Rule 9, C.P.C. It also found that valuation of the suit for the purposes of court-fee and jurisdiction was Rs,50,000 as agreed to between the parties in the earlier partition suit. Consequently, it dismissed the partition suit on 22-9-1981 on the above score. Strangely, it afforded no opportunity to the plaintiffs to pay the discovered deficiency in court-fee. Against the decision of the trial Court, plaintiffs went up in appeal to learned District Judge, Sheikhupura, who marked the appeal to a learned Additional District Judge in the district for its hearing. Appeal failed on the ground that required amount of court-fee had not been paid on the memorandum of appeal. It may be observed that the learned lower appellate Court did not address itself to the question of `res judicata' and bar of Order IX Rule 9, C.P.C. To the fresh partition suit brought by the plaintiffs. Against his decision, a revision was filed in this Court. It was admitted to hearing on 4-7-1982.
3. At the hearing, it was contended for the petitioners that they were required to pay court-fee on the value of their shares in the property sought to be partitioned, which did not exceed Rs,25,000.
Hence they were exempt from payment of any court-fee, both in the trial Court as also the lower appellate Court. It was further contended that neither principle of `res judicata' applied nor bar of Order IX, Rule 9, C.P.C. Attracted to the partition suit. It was further argued that without allowing an opportunity to the petitioners to make good the deficit court-fee on the memorandum of appeal, lower appellate Court could not have dismissed it. In this behalf, learned counsel referred to `Mst.
Parveen v. Jamsheda Begum and another (PLD 1983 SC 227), `Siddique Khan and 2 others v. Abdul Shakur Khan and another' (PLD 1984 SC 289). As for the application of doctrine of `res judicata' and bar of Order IX, Rule 9, C.P.C. To the partition suit, it was submitted that both did not apply because it was well-settled that, cause of action for a partition suit is a recurring one. In support of this statement, reference was made to the cases in `Bisheshardas and another v. Ram Prasad and another' (28 All. 627), `Madhura Gramani v. Thummala Sesha Reddy and others' (AIR 1926 Mad.
1018), `Kannikandath Kizhe Purakkal Vella's Son, Thayyan v. Kannikandath Kizhe Purakki' (AIR 1935 Mad. 458), 'Mukha Singh and others v. Ram Chariter Singh and others' (AIR 1956 Pat. 143) and `Md.
Bazlur Rahman v. Syed All Pramanik and others' (PLD 1967 Dacca 809).
4. Learned counsel for respondent No,1 supported the impugned decisions rendered in the Courts below and submitted that there was no bar for applying the principle of `res judicata' and bar in Order IX Rule, 9, C.P.C. To partition suit. Also submitted that the lower appellate Court was not obliged to afford assistance to the petitioners for paying the discovered deficiency in court-fec within a time to be fixed by it. This was all that was said by him.
5. For the purposes of Civil Revision, learned counsel for the petitioners agreed to pay ad valorem court-fee assessed at Rs,50,000 in the trial Court and requested for time for its payment in this Court. This concession obviated a clear necessity for giving decision on the point of court-fee eligible upon the petition for revision in the High Court as required by Article 13-A, Schedule I of the Court Fees Act, 1870. By now, it as well-established on the high authority of Supreme Court that the plaint or memorandum of appeal could not be adversely dealt with for being rejected or dismissed on account of being deficiently stamped unless the correct amount of court-fee payable on them is first determined with exactitude and an opportunity allowed to the party for paying the deficient amount of court-fee. It is seen from the impugned order of the lower appellate Court that neither of the two acts were performed by it and yet the memorandum of appeal dismissed straightaway. As I intend to remand the appeal for decision of it afresh, it is not necessary for me to express and dilate on the questions of `res judicata' and bar of Order IX, Rule 9, C.P.C. To the fresh partition suit filed by the petitioners. Both these points are being left for adjudication by the lower appellate Court to which the file is being remitted.
6. In view of the aforesaid, Civil Revision is allowed, impugned judgment, and decree dated 17-2- 1982 of learned Additional District Judge, Sheikhupura are set aside and the case is remanded to learned Judge, Sheikhupura for deciding of the appeal afresh, after first determining the amount of court-fee payable on the memorandum of appeal and allowing a reasonable opportunity to the petitioners to make up the discovered deficiency in court-fee within a time to be fixed by him.
There shall be no order as to costs.
Records be returned to his Court. The parties shall appear before him on 30-11-1991. Learned District Judge shall make serious attempt for decision for the appeal within three months.
7. As for payment of court-fee on Civil Revision in this Court, petitioners shall pay the required court-fee calculated on sum of Rs,50,000d as agreed to, by or before 23-11-1991. In default, remand shall not take effect and Civil Revision shall be liable to be dismissed for non-payment of court-fee on it.