' QAZI MUHAMMAD FAROOQ, J.---This civil appeal, by leave, has been filed by the defendants in a civil suit which was decreed by the trial Court and the decree was upheld by the appellate Court as well as the Peshawar High Court. It calls in question the judgment dated 24-5-1999 of a learned Single Judge of the Peshawar High Court 'whereby the revision petition was dismissed.
2. The facts are rather complicated. A piece of land measuring 4 Kanals and 4 Marlas, comprised in Khasra No.988 and situated in village Charsadda, was owned by one Ahmed Gul. An area measuring 2 Kanals was sold by him to Muhammad Zaman vide Mutation No.2472, dated 1-12-1956 and out of remaining land an area measuring 1 Kanal and 6 Marlas was sold by him to the Pakistan Railways through Mutation No.3234, dated 27-11-1964. Shortly after the second sale transaction Khasra No.988 was bifurcated into Khasra No.988/1, which was given to the Pakistan Railways, and Khasra No.988/2. By a registered sale-deed dated 22-9-1970 the remaining 18 Marlas were sold by Ahmed Gul to Musammir Shah, respondent herein. The deed was followed by Mutation No.3900 dated 19-10-1970. The last vendee., namely, the respondent filed a suit against the first vendee Muhammad Zaman for possession through partition of his share out of the joint land. However, on 3-9-1973 he moved an application for withdrawal of the suit with permission to file a fresh suit. The application was allowed on. Payment of Rs.30 as costs. In the meantime Muhammad Zaman transferred his share out of the joint land in favour of his sons, petitioners herein. The respondent filed another identical suit on 25-2-1982. The petitioners resisted the suit on the objection, inter alia, that it was not maintainable on account of non-payment of costs. The objection prevailed and resultantly the suit was dismissed on 31-5-1983. The appeal filed by the respondent was dismissed on 28-1-1984 by the learned Appellate Court. The revision petition filed by him was also dismissed in limine by the Peshawar High Court on 7-4-1984 with the observations that the petitioner instead of making a prayer or showing willingness for deposit of the costs had insisted that the costs had been paid. The respondent filed yet anpther suit on 22-9-1984 for a declaration to the effect that he was owner of 18 Marlas out of Khasra No.988/2 and for permanent injunction restraining the petitioners from carrying out construction in the joint property. The suit was decreed on 28-5-1988 with the observations that the defendants shall not raise any construction till partition of the joint land. The appeal filed by the petitioners was partly accepted and the order restraining the petitioners from raising construction was reversed. The respondent filed a revision petition before the Peshawar High Court which was dismissed with the observations that the proper remedy open for the plaintiff was to move the Civil Court for partition of his share. The respondent again filed a suit for possession through partition of his share in the joint property. A preliminary decree was passed in his favour on 18-7-1993 which was upheld by the Appellate Court on 28-7-1996. The petitioners filed a revision petition before the Peshawar High Court but the same was dismissed on 24-5-1999.
3. Leave to appeal was granted to the petitioners to consider whether the High Court was not justified to have condoned the "contumacious conduct" of the defendant respondent in non- payment of costs to the petitioners in compliance with the trial Court's order in the first round of litigation between the parties, for filing the suit afresh notwithstanding the two earlier order passed by the Peshawar High Court dated 7-4-1983 in Civil Revision No.85 of 1984 and 12-5-1990 in Civil Revision No.1 of 1989.
4. The controversy arising from non-payment of costs was reserved by the learned Single Judge of the Peshawar High Court in favour of the respondent on the strength of a judgment of this Court reported as Malang Dad v. Mah Pan (PLD 1993 SC 6). The relevant portion of the impugned judgment is worded thus:-- "In the suit leading to the filing of the present revision petition the respondent-plaintiff paid the costs when the objection was raised before the trial Court as is evident from the order sheet of 16- 3-1992. The spirit of the judgment of the Supreme Court in the case of Malang Dad v. Mah Pan is that in appropriate cases suits should not be dismissed on the technical grounds of non-payment of costs if the plaintiff is willing to pay the costs. When clearly the plaintiff-respondent has purchased a share in the property in the year 1970 and evidently his share is in the possession of the petitioners-defendants, who arc enjoying its usufruct since then. It will indeed be unjust to deprive the plaintiff-respondent of his share of the land for ever on the ground of non-payment of costs of Rs.30."
5. It was contended by the learned counsel for the petitioners that the respondent cannot make any mileage from payment of costs on 16-3-1992 as he had neither deposited the same before institution of the suit nor had expressed willingness to pay the same during the first round and in any event the matter had attained finality in view of the judgment dated 7-4-1984 of the learned Single Judge of the Peshawar High Court passed in Revision Petition No.85 of 1984.
6. The learned counsel for the respondent, on the other hand, supported the impugned judgment by reiterating the reasons contained therein the adding that the matter had not attained finality in view of the observations made by the same learned Single Judge of the Peshawar High Court in the judgment dated 12-5-1990, passed in Civil Revision No.1 of 1989, that the proper remedy open for the plaintiff was to approach the Civil Court for partition of his share.
7. Having considered the rival contentions anxiously we have come to the conclusion that the impugned judgment is unexceptionable. It is true that there is no proof of payment of costs either before the institution or during pendency of the second suit but the conduct of the respondent cannot be termed as contumacious or obdurate on this score alone because his stance throughout the proceedings was that he had paid the costs. His standpoint is mentioned in the aforementioned judgment of the Peshawar High Court dated 7-4-1984 in these words that 'the petitioner insisted that the amount had been paid to the defendants'. It is rather difficult to brush aside the stance of the respondent inasmuch as it does not stand to reason that he had put his suit at stake by not making payment of a meagre amount of Rs.30. Be that as it may, no time for payment of costs was specified in the order granting permission to the respondent to withdraw from the suit, the delay was condoned by the trial Court in exercise of its inherent powers and rightly so because the element of mala fide was missing, the inherent power exercised by the trial Court has been upheld by the Appellate Court as well as the High Court and the costs were admittedly paid by the respondent during pendency of the suit culminating in this petition. It was held in. Haji Abdul Rashid Sowdagar v. S.M. Lalita Roy and others (PLD 1959 SC 287) that the order of dismissal of the suit can be passed only after it is found that the plaintiff, on an objection taken, is not willing to comply with the terms on which he was permitted to withdraw the suit with liberty to institute a fresh suit and that whether the condition has or has not been fulfilled is for the Court to determine in each case and in determining that question it has an inherent power to condone bona fide delays, omissions etc.
8. There is no merit in the contention that payment of costs in the last round was meaningless as the matter had attained finality and the chapter was closed in the first round. The effect of the fist round was offset by the observations made by the same learned Single Judge of the Peshawar High Court in Revision Petition No.1 of 1989, decided during the second round on 12-5-1990, that the proper remedy open for the plaintiff is to approach the Civil Court for partition of his share. The chapter was re-opened by the said observations and in view of the changed scenario a fresh suit was filed by the respondent, costs were paid and the delay was condoned by the Court. The course of action adopted by the Court is indeed in line with the spirit of the aforementioned judgment of this Court as well as the judgment reported as Malang Dad v. Mali Pan (PLD 1993 SC 6).
' In the result the appeal fails, and, is dismissed. Parties to bear their own costs.