'This civil revision has arisen out of a suit brought by the. Petitioners, Taj Muhammad and others, against the respondent, Muhammad Munir, for possession of certain land through pre-emption.
The plaintiffs fixed valuation of the suit at Rs,24,750 being 15 times the annual net profits of the land in dispute, both for the purposes of court-fee as well as for that of jurisdiction. The suit was resisted by the respondent inter alia on the ground that correct court-fee had not been paid for the suit.
The suit was decreed by the trial Court. As for issue relating to the valuation of the suit, which was framed in view of the objection of the respondent, it was stated in the judgment of the learned trial Court that the said issue was not pressed by the respondent and, therefore, it was decided against him. The respondent went in appeal before an Additional District Judge. The learned Additional District Judge reversed the finding of the learned trial Court on the issue of valuation of the suit and on the issue in respect of pre-emption money. View taken by the learned Additional District Judge was that proper court-fee had not been paid on the suit. He, therefore, accepted the appeal and dismissed the suit. Feeling aggrieved by the judgment and decree passed by the learned Additional District Judge, the plaintiffs have come up in revision before this Court. One of them, namely, Taj Muhammad, died during the pendency of this civil revision whereupon his legal representatives have been brought on the record.
2. Learned counsel for the petitioners does not dispute the finding of the learned trial Court regarding the pre-emption money. He also does not question the valuation of the suit fixed by the learned Additional District Judge but contends that the plaintiffs could not be non-suited due to their failure to pay court-fee accordingly, without giving them an opportunity to make up the deficiency in court-fee. He maintained that since no time was allowed to the plaintiffs to make good the deficiency, judgment and decree passed by the learned appellate Court dismissing the suit suffers from a material irregularity and calls for interference by this Court.
3. On the other hand, it was submitted by learned counsel for the respondent that according to the statement of net profits Exh.P8, filed by the plaintiffs before the learned trial Court, valuation of the suit was the one which was ultimately assessed by the learned Additional District Judge but since they did not fix the valuation accordingly, they were not entitled to the grant of any time to make up the deficiency in court-fee due to their gross negligence.
4. It is true that earlier view of the superior Courts was that if a plaintiff is grossly negligent in paying proper court-fee he can be non-suited for this lapse on his part but the latest view in the matter is to the effect that if there is deficiency in court-fee the plaintiff cannot be non-suited unless an opportunity is afforded to him to make up the deficiency in court-fee. Undoubtedly, no such opportunity was allowed to the plaintiffs who were respondents before the learned appellate Court, prior to the dismissal of the suit for non-payment of proper court-fee. Since the learned appellate Court had failed to follow the latest case-law on the subject, I agree with the learned counsel for the petitioners that the judgment and decree passed by the learned appellate Court suffer from a material irregularity and are therefore, not sustainable.
5. In this view of the matter I accept this civil revision, set aside the judgment and decree of the learned appellate Court and remand the appeal to the said learned Court with the direction that it shall allow reasonable opportunity to the petitioners to make up the deficiency in court-fee for the suit. If the petitioners would do the needful within the time to be allowed to them, the learned appellate Court shall decide the appeal afresh without reopening the issues which have already been decided by the said learned Court. On the other hand, if the requisite court-fee is not paid by the petitioners within the given time, the learned appellate Court shall proceed further in accordance with law. There shall be no order as to costs.
6. Parties shall appear before the learned Additional District Judge on 28th November, 1992.