SYED ABDUR RAHMAN,J.- By this revision application the applicant has challenged the Judgment of 1st Appellate Court i.e. IIIrd Addl. District Judge (East), Karachi dated 25-11-1987, whereby the Judgment of the trial Court i.e. XIVth Civil Judge IInd Class, Karachi dated 12-5-1975 was set aside and the appeal of the Respondent was allowed. One of the grounds on which the appeal was allowed was that the leanred trial Court having come to the conclusion that sufficient Court-fee was not paid, directed the applicant to pay the deficit Court- fee within one month.
2. The applicant had filed an application on 19-6-1975 which was a date during vacations to amend the decree and permit her to deposit the Court-fee in vacations. The application was fixed for hearing after vacations as it was held that there was no urgency. On 17-8-1976 the application was disposed of by an order wherein the decree was ordered to be amended, but it appears that on order was passed permitting the applicant to deposit the Court-fee or extend the period of 30 days or condoning the delay that had elapsed. The applicant deposited the deficit Court-fee in the trial Court on 12-7-1975 and the deposit was accepted.
3. Mr. Dastagir Ghazi, learned counsel for Respondents No. 2(i) to 2(iv), has contended that the deposit should not have been accepted, as the suit automatically stood dismissed. In this connection he has placed reliance on P.LJ. 1981 S.C. 806 (Fateh Mohammad vs. Abdul Ghani) and P.LJ. 1975 Lah. 305 (Mohammad Nasrullah Khan vs. Mohammad Ejaz Khan). As against this Mr. Mohammad Ali Jan, learned counsel for the applicant, relying upon 1984 S.C. 289 (Siddique Khan vs. Abdul Shakur Khan), has contended that since in depositing the Court-fee late he was not guilty of contumacy or positive malafide, therefore, the 1st. Appellate Court was not justified in coming to the conclusion eleven years after such deposit that the suit automatically stood dismissed. P.LJ.
1981 S.C. 806 (Fateh Mohammad vs. Abdul Ghani) relates to case in which deficiency in payment of Court-fee was not made up inspite of extension granted to the Plaintiff, additionally because no application was made by the Plaintiff for extension of time. This decision is, therefore, not applicable to the present case because in it the Court-fee was deposited and application was made to accept the same and the learned trial Court had also not rejected the plaint or dismissed the suit for failure of plaintiff to deposit the Court-fee within prescribed period. P.LJ. 1975 Lah. 305 (Mohammad Nasrullah Khan vs. Mohammad Ejaz Khan) where it was held that a decree conditionally on payment of Court-fee operates only if the Court-fee is paid. In case of default either the suit is dismissed or the plaint is rejected. The contention of plaintiff that after passing the decree the Court became functus-officio and could not dismiss the suit or reject the plaint for making up the deficiency in Court-fee was repelled. To say the lease this decision is also distinguishable from the present case, because in this case the applicant has paid the Court-fee and the learned trial Court has not passed any ing the suit or rejecting the plaint. In P.L.D. 1984 SC 289 (Siddique Khan vs. Abdul Shakur Khan) a very elaborate and enlightening Judgment is written by Muhammad Afzal Zullah, J. (as he them was) and almost all the authorities for and against, have been considered with which I am in respectful argument, it has been held, inter-alia, as follows:- "(a) It would indeed be anomalous if limitation is not saved in cases in which law requires the Court to allow the plaintiff to correct the valuation of the relief claimed in the suit which must necessarily entail making up deficiency in the stamp paper affixed on the plaint; therefore;
(b) Time should aromatically be enlarged in cases in which the Court has the discretion to grant time to pay the whole or part of the court-fee prescribed; and
(c) Consequently where the plaintiff is required to correct the valuation of the relief claimed in the suit, he shall further be required to supply the requisite stamp paper and on compliance it shall have the same force and effect as if such fee had been paid in the first instance."
4. Having come to the conclusion that the suit was not liable to be dismissed or the plaint was not liable to be rejected for not making up the deficiency of Court-fee within time, I would now revert to the merits of the case.
5. The admitted facts of the case are that Respondent No. 3, Pir Illahi Baksh Cooperative Housing Society had allotted a , built up quarter bearing No. 42S situate^ in Pir Ilahi Baksh Cooperative Housing Society-2, Karachi, to one KA. Abdul Waheed, an Indian National some where in 1948-49.
The valuation of the said quarter alongwith other charges was assessed by the Society and the said allotted was required to pay the same, but he persistently neglected and failed to pay the same till 1960 when the Society cancelled this said allotment. The said cancellation was challenged at various levels i.e. Registrar, Cooperative Societies, Provincial Government and Civil Court, but without any success. The Society then auctioned the aforesaid house to applicant's cousin Nisbat Begum which transfer was Benami, while the real transferee was applicant Mst. Surayya Begum, in whose favour the house was subsequently mutated by the Society. KA. Abdul Waheed thereafter let out the said house to Abdul Rahman without permission of Mst. Surayya Begum. Similar situation had arisen in nine other suits filed by the auction purchasers of similar quarters, which were decided in favour of the lessees of the Indian Nationals, who were in occupation of those house.
The auction purchaser filed appeals before the IVth Addl. District Judge, Karachi, who dimissed the appeal and upheld the Judgment of the Civil Court. Second Appeals were preferred against those Judgments which were numbered as 11A. No.. 157/1972 and others and were disposed of by a common Judgment on 12-2-1987 by Saeeduzzaman Siddiqui, J. (as he then was). The above appeals were allowed to the extent that the finding of the two Courts below on Issues No. 2 & 3 were reversed. Issues No. 2 and 3 are to the following effect:- "(2) Whether the suit is not maintainable in law against Defendant No. 2 (Lessee of the Indian National)?
(3) Where Defendant No. 3 has got any right of possession to the suit property or is a trespasser?"
It will be useful to reproduce the following extract from the Judgment referred to above:- "The suits were contested by the occupants/respondents of those quarters only, who claimed that they were lawful tenants having been inducted therein by the original allottees of the quarters. The learned trial Court as well as 1st Appellate Court on Issue No. 4 framed in these held the private respondents in appeals Nos. 1.57,158 and 160 to 166 of 1972 as tenants of the premises in their occupation and repelled the contentions of appellants in these appeals that they were trespassers.
The above concurrent finding of the two Courts below is based on cogent reasoning and evidence and the learned counsel is unable to point out any misreading of evidence in this regard by the Courts below. However, the learned counsel for the appellants in all the above 18 appeals jointly contended that in so far finding of the Courts below on Issues No. 2 and 3 holding that disposal of property by the Society in favour of appellants in Appeals No. 157, 158,160 to 166 of 1972 by auction was not legal is concerned, the same cannot be sustained in law as it is out side the scope of the suit. It appears that the private respondents in Appeals No. 157, 158, 160 to 166 of 1972, who claimed to be tenants of the quarters in their respective possession had pleaded in their written- statements; that the transfer made in favour of the auction purchaser by the Society was not legal and accordingly Issues No. 2 and 3 were drawn on the above pleas, but the decision of this issue is apparently out side the scope of suit as in the suit instituted by auction purchasers the controversy was restricted to the fact whether they were entitled to claim possession and mesne profit from the occupants who were claiming tenancy rights in the quarters. The transfer made in favour of appellants in Appeals No. 157, 158, 160 to 166 of 1972 was not disputed by the Society who sold the disputed quarters to them by auction. The private respondents in these appeals were claiming tenancy rights in these quarters and the Courts below having found in their favour could not further declare the transfer of these quarters in favour of appellants illegal as the frame of suit did not admit of any such adjudication in favour of respondents/defendants."
I am in respectful agreements with the reasoning given in the above Judgment. Hence I allow the application to the extent that findings of the two Courts below on Issues Nos. 2 and 3 are reversed.
However, inspite of reversal of the findings of the two Courts below on issues Nos. 2 and 3, the Judgment and decree passed by the trial Court in favour of the applicant is maintained, while the impugned Judgment of the 1st Appellate Court dismissing the suit and setting a side the Judgment and decree of the trial Court, is hereby set aside. Hie result is that it is declared that the. Applicant is the owner and lawful transferee of the house in dispute from Pir Ilahi Baksh Cooperative Housing Society and that Respondents' No. 1 and 2 are the tenants of the Society and entitled to the protection of rent laws.