SAYED NAJAM-UL-HASSAN KAZMI, J.-- Suit for specific performance of an agreement of sale, dated 7.21 991, filed by the petitioner against respondent was decreed by the learned Civil Judge Okara, on 2.1.1994, subject to the condition that the petitioner should deposit the balance amount of consideration, in the sum of Rs. 67,000/-, till 23.1.1994 It was also directed that-the deficient amount of Court fee, in the sum of Rs. 6,525/- should also be supplied by the petitioner, till 16.1.1994.
Petitioner did deposit the balance amount of consideration of Rs. 67,000/-on 3.1.1994 i.e. Within the stipulated period but could not supply the additional Court fee as directed by the Court. Instead an application u/S. 149 of CPC was filed for seeking extension in time to supply the deficient Court fee on the ground that the petitioner had fallen ill and was advised bed rest and, therefore, he could not supply the additional Court fee within the stipulated period.
2. An objection was raised as to the maintainability of the application on the ground that, condition of deposit being part of the decree, the natural consequences would follow in terms of the decree and that the Court would not be competent to extend time. This objection found favour with the learned Civil Judge who dismissed the application with the observations that the plaint stood rejected in terms of the decree, on the expiry of the period provided therein and, therefore, no jurisdiction remained with the Court for granting extension. The application was not dealt with on merit but was dismissed on the ground of being in competent in law.
3. Learned counsel for the petitioner argued that despite a pre-emptory default clause in the decree to the effect that after the non-payment of Court fee in the sum of Rs. 6,525/- till 16.1.1994 the plaint shall be deemed to have been rejected, the Court retain control of the lis for further extension time for payment of Court fee for saving the plaint from outright rejection of it and that the decree being for specific performance, was in the nature of preliminary decree.
4. Learned counsel for the respondent submitted that there was no agreement of sale, the respondent was unnecessarily burdened with the obligations to honour the agreement, which, according to the respondent, did not exist and the application was not maintainable.
5. As regard the objection that there was no agreement of sale, the same cannot be possible entertained in the present proceedings. Reason being the decree passed by the learned Civil Judge was not challenged in appeal nor was set aside, in any appeal or revision. This being so, the questions, which could be raised in appeal against the decree, cannot be allowed to be raised, particularly when the respondent did not opt to challenge the decree in appeal or otherwise.
6. The other objection, as to the non-maintainability of the application for extension in time also appears to be without substance and the view taken by the learned Court does not sound well.
7. In the first instance, the learned Civil Judge was oblivious of the fact that a decree for specific performance of an agreement of sale, in its nature was a preliminary decree and the decree being not final, Court passing the same, would retain session over the lis and would have power to enlarge time for payment of purchase price fixed therein Though any request in this regard will have to be considered on its own merit. Reference can be made to "Muhammad Ismail vs. Muhammad Akbar Bhatti and 5 others" (PLD 1997 177) and "Nisar Ahmad vs. Muhammad Yousuf"
(PLD 1994 LHR 280).
8. This being so, the view taken by the learned Civil Judge, that the decree was final and that he had no jurisdiction to entertain application for extension in time, suffer from material error of law.
Even otherwise, it was not a case in which enlargement of time was claimed, for the deposit of the decretal amount. The decree contained a direction for deposit of the balance sale price, in the sum of Rs. 67,000/- till 23.1.1994, which the petitioner had deposited within the stipulated period. The term of the decree for enforcing the agreement was thus duly complied with: The dispute was only in regard to the supply of additional Court fee stamp in the sum of Rs. 6,525/-.
9. Under Order VII Rule 11 of CPC if the plaint is not properly valued or is deficiently stamped, the Court is required to determine the deficient amount of Court fee and to give direction for making up deficiency within the fixed period. If for unforeseen reasons, the party is unable to comply with the order, the Court is not denuded of its power u/S. 149 of CPC, to grant time for making up deficiency. It is a different matter whether or not the reasons explained for non-compliance of the order or for seeking extension in time are sufficient, good enough or not, Nevertheless, the Court retains power, to extend time for making up deficiency in Court fee, provided good and sufficient reason is put forth, no matter the order was passed during the pendency of the suit or at the final conclusion of the trial. As a matter of fact, the Court should have firstly secured additional stamp before passing the final decree and if this course had been adopted, no difficulty would have arisen. The difficulty arose as the Court while passing the final decree, also directed for making up deficiency in Court fee' and thereafter ,assumed that it had become functus officio and lost control over the matter for allowing any extension in time. The Court had positively, the jurisdiction, to grant time for making up of deficiency in Court fee, if sufficient reasons were made out Dismissal of application, on the grounds of incompetency and non-maintainability was neither legal nor in accordance with the rule laid in the precedent cases.
10. At this stage, learned counsel for the petitioner wants this Court, to also decide the application for extension in time in merits. This cannot be possibly done for the reason, that the learned Civil Judge has not expressed any view on the sufficiency or otherwise of the reasons given in the application, seeking extension in time to make up deficiency in Court fee. In the application, the plea raised is that the petitioner had allegedly remained out of village to attend the funeral of his paternal cousin and on his return, he allegedly fell ill and remained confined to bed from 13.1.1994 with the result that he could not make up deficiency in the Court fee within the stipulated period.
These questions can be decided after factual inquiry. It is for the Trial Court, to make inquiry into these reasons and to, render decision on merit thereof. In the absence of decision on merit, by the learned Trial Court, any decision of the application in revision, will deprive either of the party of a remedy of challenging the order by way of appeal and revision. Propriety, therefore, demand that the matter be sent to the learned Civil Judge, who shall be asked to decide the application on merit by attending to the reasons contained therein as the application has been held to be - sustained in law.
11. Resultantly this revision is allowed, the impugned order is set aside the case is sent back to the learned Civil Judge for decision of the application u/S. 149 of CPC, on merit, in the light of the observations hereinabove.