' Appellant has assailed the judgment of the learned District Judge dated 20-5-1967 whereby he dismissed his appeal on the ground of deficient court-fee affixed on the memo of appeal.
2. Brief facts of the case are that appellant filed a suit for possession through pre-emption of 212 Kanals of land subject to maortgage and 130 Kanals, 18 Marlas of land without any encumbrance.
The description of the land is given in the headnote of the plaint. Appellant was a minor and suit was filed through next friend, his real maternal grandfather. The land in dispute was sold by his father respondent-defendant No,3 to Abdul Ghafoor respondent-defendant No,1 vide Mutation No,1540 but in order to defeat the right of pre-emption land comprised in Khata No,275 was shown to have been mortgaged with defendant No,2 while no such transaction had taken place.
Defendants Nos.1 to 3 have shown the sale consideration subject to mortgage as Rs,34,400 while actually the amount paid was Rs,8,500. It was averred that plaintiff being a son of the vendor had superior pre-emptive right as against vendee-defendant and as such was entitled to the decree. It was further alleged that defendant No,3 has further sold the land to defendant No,6, therefore, he was made a party to the proceedings. Rest of the facts need not be mentioned being not necessary for adjudication of this appeal.
3. Learned trial Court, after framing the issues, recording evidence of the parties and hearing their learned counsel decreed the suit on 10-1-1967. Operative part of the judgment is reproduced below:-- ' "The result is that the plaintiff is granted a decree for constructive possession of the suit land (which stands mortgaged with defendant No,2) on his depositing on or before 10-2-1967, R.25,200 for defendant No,6. Any amount deposited by the plaintiff as one-fifth of the ostensible sale price shall be considered as a deposit towards the pre-emptional amount. If the plaintiff fails to deposit the amount his suit shall stand dismissed with costs. For the present the parties are left to bear their own costs on the ground that they have a divided success in suit."
4. As the appellant-plaintiff was not satisfied with the finding of learned trial Court on Issue No,4 regarding price of the disputed land, he preferred an appeal against the decree before the learned District Judge on 6-2-1967 with deficient court-fee. The condition of payment of pre-emption money was also not complied with nor any application for extension of time was moved.
5. Respondents appeared on notice from the learned District Judge and raised objection that the memo. Of appeal has not been properly stamped, therefore, appeal be dismissed for want of proper court-fee. Appellant contested the objection of the respondent. The case was fixed for argument on the question of deficit court-fee. Learned District Judge after hearing the parties at length dismissed the appeal on 20-5-1967 being insuficiently stamped.
6. Appellants filed this second appeal on 25-9-1967 with a court-fee of Rs,75 only. Office of the High Court raised objections that the appeal is insufficiently stamped and deficiency in the court-fee be made; values for the purposes of court-fee and jurisdiction need correction and copy of the plaint was also directed to be filed. The objections were answered by the learned counsel for the appellant and appeal was refiled on 10-10-1967. The matter was referred to the Taxation Officer on the question of court-fee who held that proper court-fee has been paid by the appellant.
7. Learned counsel for the appellant contends that appellant was not given opportunity to make up the deficiency in the court-fee by the lower Appellate Court. He has relied upon judgment reported as Siddique Khan and two others v. Abdul Shakur Khan and another (PLD 1984 SC 289) to contend that it was the duty of the Court to determine the court-fee and provide an opportunity to make up the deficiency and in case of his failure only then, this appeal could be dismissed.
8. Learned counsel for the respondents on the other hand submits that appellant failed to make up the deficiency in spite of objection raised by them before the lower Appellate Court and instead contested the objection. Ultimately learned District Judge held that proper court-fee was not affixed on the memo. Of appeal and the same was dismissed without going into the merits of appeal. He further argues that conduct of the appellant was contumacious and negligent and lower Appellate Court has rightly dismissed his appeal. In support of his plea he has relied upon Assistant Commissioner and Land Acquisition Collector, Badin v. Haji Abdul Shakoor and others (1997 SCM R 919). He further submits that the appellant has not even deposited the pre-emption money in compliance with the decree of the learned Civil Judge and as such the suit stands automatically dismissed with costs. He has referred to Muhammad Sadiq and others v. Mst. Shakila Jamil (1983 CLC 1705) in addition to 1985 SCM R 1198, 1988 CLC 551 and 2162 in this behalf.
9. I have heard the learned counsel for the parties and gone through the record as well as judgments referred above. Deficiency in court-fee on the memo. Of appeal is not disputed by the learned counsel for the appellant. He failed to pay deficit court-fee before the lower Appellate Court. The conduct of the appellant is relevant for disposal of instant appeal. He did not pay proper court-fee at the time of institution of the appeal before the lower Appellate Court and on objection raised by the respondents, he contested the same. Learned District Judge observed that the conduct of the appellant was contumacious and negligent, therefore, the appeal was dismissed without going into its merits while relying upon the judgments of the superior Courts referred therein. It has been held by the Hon'ble Supreme Court judgment Assistant Commissioner and Land Acquisition Collector, Badin v. Haji Abdul Shakoor and others (1997 SCM R 919) that: ' "Where petitioner had filed appeal with deficit court-fee, Appellate Court under section 149, C.P.C.
Could extend time and if time was so extended, question of limitation would not arise. Where, however, petitioner was guilty of contumacy or he had acted in positive mala fide manner in regard to deficient court-fee, Court would decline to exercise discretion in his favour on that ground."
' Siddique Khan's case (supra) relied upon by counsel for appellant was also referred in the aforementioned judgment. In the instant case the appellant had no doubt with regard to payment of court-fee on memo. Of appeal before the lower Appellate Court but he intentionally and deliberately did not pay proper court-fee and instead contested the objection raised by the respondents. He acted contumaciously and negligently. Even he did not make any application under section 149, C.P.C. For extension of time to make up the dificency. The limitation had already expired by the time the appeal was decided by the learned District Judge. A valuable right has accrued to the other side. Learned lower Appellate Court was justified in the peculiar circumstances of the present case.
10. There is also force in the next contention of the learned counsel that appellant has not deposited the pre-emption money so far in compliance with the decree passed by the learned Civil Judge, therefore, the suit stood dismissed and the appeal will not survive as there was neither any injunctive order nor there was only prayer for stay to deposit the decretal amount. Reference may be made to be case of Muhammad Sadiq, etc. v. Mst. Shakila Jamil (1983 CLC 1705) which is exactly on this point, where the decretal amount was not paid in the trial Court. A Division Bench of this Court held that the appeal could not survive on account of non-deposit of decretal amount in terms of the decree. While dealing with this point their lordships observed as follows:-- ' "Non-deposit of decretal amount within time prescribed in pre-emption . Decree in absence of stay of deposit either by Trial Court or by Appellate Court. Entails its own end in dismissal of pre- emption suit. Appeal against pre-emption decree being only its continuation will also come to its own end. This is in accordance with application of letter and spirit of Order XX, rule 14(1) and Order XLI, rule 5, C.P.C. And in accordance with due administration of law."
11. Since the appellant pre-emptor has not paid the decretal amount, this appeal is liable to be dismissed on this ground also.
12. Learned counsel for the appellant submits that this point was neither raised before the lower Appellate Court nor through any application in this Court, therefore, it would amount to foreclose right of appeal of either party if it is not left to be decided by the lower Appellate Court where it can be raised if the case is remanded on the question of court-fee. He also submitted that without determination of sale price, when the same is under challenge, the pre-emptor cannot be compelled to pay the decretal amount nor his appeal can be thrown out on this ground. He further argues that non-payment of pre-emption money in terms of decree would not be sufficient to dismiss the appeal as the Appellate Court could take a different view against the impugned judgment. He has referred various judgments in support of his plea.
13. I have carefully examined the judgments referred by the learned counsel for the appellant, viz Muhammad Nawaz and another v. Muhammad Sadiq and another (PLD 1995 SC 105), Dost Muhammad and others v. Nazar Hussain Khan and others (1984 SCM R 325) and Shah Wali v.
Ghulam Gaman and another (PLD 1966 SC 983), none of them has laid down that non-deposit of decretal amount in compliance with the decree would keep the appeal alive in absence of any injunctive order or stay regarding deposit of the decretal amount. On the other hand judgment referred by the learned counsel for the respondents Muhammad Sadiq and others v. Mst. Shakila Jamil (1983 CLC 1705) is exactly on the point in issue in this case whereby the entire controvesy stands answered.
14. On my query from learned counsel for the appellant whether appellant has deposited the amount, he neither produced any receipt nor any other proof of such payment. In other words impliedly he has not denied the non-deposit of pre-emption money in terms of the decree. It is, therefore, clear that appellant has not complied with the judgment of the trial Court regarding deposit of the decretal amount. Thus, the suit stood automatically dismissed and the appeal being only its continuation will come to the same end in the light of the dictum laid down in Muhammad Sadiq and others v. Mst. Shakila Jamil (supra).
15. For the above reasons, this appeal is dismissed with no order as to costs.