' Vide registered sale-deed dated 17-7-2003 the respondent purchased the suit-land, mentioned in the plaint. On 17-11-2003 the petitioner filed a suit for possession of the said land for pre-emption with requisite pleadings. In para.8 of the plaint, it was stated that the value of the suit for the purposes of court-fee is to be fixed in *accordance with the value of PIUs but since the requisite documents are not available, the value is being fixed at Rs.20,000 on which no court-fee is payable.
An application was also filed along with the plaint in this behalf. The suit was put up before the learned trial Court on 2-12-2003. Summons were ordered to be issued for 8-12-2003 and further the petitioner was directed to deposit 1/3 of the price and the court-fee by the date fixed. On this date, the suit was dismissed for non-prosecution. It was restored on 12-12-2003 and case was adjourned to 22-12-2003 with the direction that court-fee be filed on the said date. On 22-12-2003, the case was adjourned to 13-1-2004 with the same direction on this date, the plaint was rejected under Order VII, rule 11, C.P.C. With the observation that the court-fee has not been filed. A first appeal filed by the petitioner was dismissed by a learned Additional District Judge, Mailsi, on 17-6-2004.
2. Learned counsel for the petitioner contends that the impugned orders are violative of Order VII, rule 11, C.P.C. Inasmuch as the learned trial Court had not worked out the deficiency in court-fee, if any and no direction was issued to the petitioner for deposit of court-fee after it was so determined. Refers the case of Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289. Learned counsel for the respondent, on the other hand, argues that it was not at all a requirement of law that the learned trial Court should have worked out the deficiency. He relies on the case of Mubarak Ahmad and 2 others v. Hassan Muhammad through Legal Heirs 2001 SCM R 1868.
3. I have gone through the copies of the records. I have already noted above the relevant contents of the plaint. It deems it appropriate to reproduce clauses (b) and (c) of Order VII, rule 11, C.P.C.
Hereunder:-- "11. Rejection of plaint.---The plaint shall be rejected in the following cases:---
(b) where the relief claimed is undervalued and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so."
It will be seen that the plaint can be rejected under clause (b) if the Court holds that the relief claimed is under-valued and it further directs the plaintiff to correct the valuation within a specified time and the plaintiff 'fails to do so. Now there is no order on the record of this case holding that the relief is under-valued and there is no direction that the value be corrected.
Similarly, there is no finding by the learned trial Court that the plaint has been written on insufficient stamped paper. There is no direction that there is deficiency. There is no finding that what is the deficiency and of course, there is no direction that the amount of court-fee so found deficient be paid. The impugned orders are, therefore, wholly void being in violation of the said express provisions of law prescribing the conditions upon existence whereof the Court can reject a plaint.
The said provisions have been so interpreted in the said case of Siddique Khan and 2 others being relied upon by the learned counsel for the petitioner which dictum was further confirmed in the case of Sardar Ahmed Yar Jang v. Sardar Noor Ahmed Khan PLD 1994 SC 688.
4. Now coming to the said case of Mubarak Ahmad and 2 others being relied upon by the learned counsel for the respondent, I find that the judgment, delivered by two Honourable Judges of the Supreme Court of Pakistan, does go to support the plea taken by the respondent. However, I further note that their Lordships have given a list of cases to which attention was drawn. I further find that the attention was not drawn to the judgment delivered by four Honourable Judges of the Supreme Court of Pakistan in the said case of Siddique Khan and 2 others and further to the judgment delivered by the five Honourable Judges of the apex Court in the said case of Sardar Ahmad Yar Jang. I deem it appropriate to reproduce the following observations of their Lordships appearing at page 692 of the report:-- "In addition to it, the order of the trial Court relied by the learned Judge in Chambers as a direction to appellant/plaintiff under Order VII, rule 11(c), C. P. C . Required the plaintiff to file the Goshwara of net profit of the pre-empted land from the Revenue Authorities and pay the deficient court-fee calculating the proper fee on the basis of the net profit disclosed in the Goshwara. This order of the Court left the calculation of the proper court-fee and the deficit court-fee to the plaintiff which could not be treated as the direction of the Court to pay a deficient amount of court-fee within a specified time. Therefore, non compliance of such an, order could not result in the rejection of plaint in view of the law laid down by this Court in the case of Siddique Khan v. Abdul Shakur Khan PLD 1984 SC 289 and Muhammad Hanif v. Muhammad and others PLD 1990 SC 859."
5. In case of a conflict this Court has to follow the judgment delivered by a larger Bench of the Honourable Supreme Court of Pakistan. I, therefore, do find that the impugned judgments are violative of the said dictum of the Honourable Supreme Court of Pakistan. The civil revision accordingly is allowed. Both the impugned orders and decrees are set aside. The result would be that the suit filed by the petitioner shall be deemed to be pending before the learned Civil Judge Mailsi before whom the parties shall appear on 22-3-2005. The learned Civil Judge shall requisition the records and, in the first instance, to determine the value of the suit vis-a-vis the relief claimed and then to determine the court-fee payable and in case some deficiency is found and court-fee is required to be paid then issue a direction to the petitioner to make up the said deficiency and file the requisite court-fee stamps within a time to be specified and in case the petitioner fails to pay the court-fee despite the said direction and within the time specified, the plaint may be rejected otherwise the issues will be framed and the suit will be decided on its merits. No orders as to costs.
6. A copy of this judgment be remitted to the learned Civil Judge, Mailsi, immediately.