' ABDUL SHAKURUL SALAM, J.-In respect of sale of land measuring 98 kanals 8 marlas situated in Chah Peepal Wala, Mauza Taraf Daira, Tehsil and District Multan by respondent No, 6 to respondents Nos. 1 to 5 allegedly for Rs, 6,00,000 vide sale deed-registered on 5.9-1975, the appellant filed a suit for possession by way of pre-emption on 2-9-1976. Value of the suit for purposes of court-fee and jurisdiction was fixed notionally on net profits of the preceding year of Rs, 100 at Rs, 1,500 and a court-fee of Rs, 112.50 was paid. It was stated that deficiency in court-fee, on preparation of statement of net profits shall be made good. On 4-9-1976, the learned trial Court directed the plaintiff-appellant to get the statement of net profits prepared and pay up the court- fee by the next date of hearing, viz. 6-11-1976. The plaintiff- appellant applied through the Court for the statement of net profits for Rabi 1975 and Kharif 1975 which was supplied showing the net profits at Rs, 5,568.02 and on the basis thereof, he made up the deficiency in the court-fee by the due date.
2. Rival pre-emptor, respondent No, 7, also filed a suit for possession by way of pre-emption of the same land on 4-9-1976 and evaluated the sui same way and paid the court-fee of Rs, 112.50. He, too, was directed to get the statement of net profits prepared and make up the deficiency vide order dated 7-9-1976 before the next date of hearing, viz. 13-11-1976. He was supplied the statement of net profits for the preceding year at Rs, 7,148.95 and the deficiency in the court-fees was made up.
3. Both the suits that is of the plaintiff-appellant and rival preemptor, respondent No, 7, were consolidated vide order dated 15-1-1977.
4. On 4-5-1977, the appellant-plaintiff filed an application saying that the two suits relate to the same land and the sale, but the court-fees were different on account of the divergent statements of the net profits prepared by the same revenue official which may have come about by mistake, therefore, a local Commissioner under section 9 of the Court Fees Act, 1870 may be appointed so that action under section 10 of the aforesaid Act be taken. The rival pre-emptor respondent No, 7 filed an application for rejection of the appellant-plaintiff's suit under Order VII, rule 11, C. P. C. On the ground that the appellant-plaintiff had wrongly got the statement of net profits for Rabi, 1975 and Kharif 1975 instead of Kharif 1975 and Rabi 1976 and thus had paid less court-fees. The learned trial Court took the two applications together-disallowing that of the appellant-plaintiff and accepting that of the respondent No, 7, he rejected the plaint of the appellant-plaintiff under Order VII, rule 11, C. P. C. Vide order dated 25-2-1978. The appellant-plaintiff has filed this Regular First Appeal.
5. Learned counsel for the appellant has submitted that during the period allowed by the learned trial Court, the plaintiff-appellant obtained the statement of net profits and made up the deficiency in the court-fees accordingly which was accepted by the learned trial Court in the presence of the learned counsel for the respondents without any demur. However, when it transpired that for the same land the same Revenue official had prepared different statement of net profits, the appellant-plaintiff applied under section 9 of the Court Fees Act for appointment of a Local Commissioner to investigate the matter and if there were to be any deficiency, the appellant was to be allowed time to make up the deficiency under section 10 of the aforesaid Act. The learned counsel for the appellant have placed reliance on Muhammad and 2 others v. Mubarik All and another (1), Shah Nawaz and 6 others v. Muhammad Yousaf and 3 others (2) and Mst. Walayat Khatun v. Khalil Khan and another (3).
6. Learned counsel appearing for respondents Nos. 1 to 5, the vendees, as well as for the respondent No, 7, the rival pre-emptor, have opposed the appeal and it is argued that even initially the grant of time to make up the deficiency by the trial Court to the appellant was uncalled for and the plaint should have been rejected straight away. Reliance is placed on the concluding observation of his Lordship of the Supreme Court Mr. Justice Karam Elahi Chauhan in the case reported as Mst. Walayat Khatun v. Khalil Khan and another. It is next contended that the appellant applied for the statement of net profits for Rabi 1975 and Kharif 1975 which was not the preceding year before the institution of the suit and that was, in fact, Kharif 19/5 and Rabi 1976 and that is the reason of the difference in the two statements of net profits. Learned counsel have strenuously contended that the appellant has been negligent both before the institution of the suit by not obtaining the statement of net profits and afterwards by applying for the wrong period and therefore his plaint has rightly been rejected.
7. After hearing the learned counsel for the parties and perusing the record with their assistance, we find that the statements of net profits prepared by the revenue official which form the basis for calculation of the court-fees are unreliable and false in respect of, at least, one crop that is Kharif 1975 which is common in both the statements, because in the statement given to the appellant there are four crops shown whereas in the statement given to the rival pre-emptor respondent No, 7 there are five crops. Areas under each crop are also different. So too are the rates. One or the other or may be both of the statements have been prepared without reference to actual cultivation of crops, extent of the areas thereunder and the rates for each crop. To meet such situations, the legislature has made provisions in sections 9 and 10 of the Court Fees Act. These provisions read as under :- "S.
9. If the Court sees reason to think that annual net profits or the market value of any such land, house or garden as is mentioned in section 7, paragraphs 5 and 6, have or has been wrongly estimated the Court may, for the purpose of computing the fee payable in any suit therein mentioned, issue a commission to any proper person directing him to make such (1) PLD 1977 Lah.
1422 (2) 1972 SCMR 179 (3) PLD 1979 SC 821 local investigation as may be necessary, and to report therein to the Court.
' S.
10. (1) If in the result of any such investigation the Court finds that the net profits or market value have or has been wrongly estimated, the Court, if the estimation has been excessive, may in its discretion refund the excess paid as such fee; but, if the estimation has been insufficient the, Court shall require the plaintiff to pay so much additional fee as would have been payable had the said market value or net profits been rightly estimated.
(ii) In such case the suit shall be stayed until the additional Court fee is paid. If the additional fee is not paid within such time as the Court shall fix, the suit shall be dismissed."
8. It appears from the record that the learned trial Court did not think that the net profits which were prepared by the revenue officials on the basis of which the appellant-plaintiff made up the court-fee were wrongly estimated and, therefore, it accepted the same and that too in the presence of the learned counsel for the respondents without demur. However, when it transpired later on that the two statements of the net profits prepared for the appellant-plaintiff ;land the rival pre-emptor respondent No, 7 for the same land and same sale were divergent, the appellant- plaintiff filed an application for appointment of a local commissioner under section 9 and action under section 10 of the Court Fees Act quoted above. Provisions of section 28 of the aforesaid Act were also attracted. These are to the following effect "S.
28. No document which ought to bear a stamp under this Act shall be of any validity, unless and until it is properly stamped.
' But, if any such document is through mistake or inadvertence received, filed or used in any Court or office without being properly stamped, the presiding Judge or the head of the office, as the case may be, or, in the case of a High Court, any Judge of such Court, may, if it thinks fit, order that such document be stamped as he may direct ; and, on such document being stamped accordingly, the, same and every proceeding relative thereto shall be as valid as if it had been properly stamped in the first instance."
9. Instead of taking the action under the aforesaid provisions of law, the learned trial Court appears to have taken recourse to the easy method of summary disposal by rejection of the plaint under Order VII, rule 11, C. P. C. The provision reads as under :- "The plaint shall be rejected in the following cases : - (a)............
(b) . . . . .
(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: ' The above provision clearly lays down that if a plaint is written upon paper insufficiently stamped and the plaintiff, on being required by the Court to supply the requisite stamp papers (underlining is ours), fails to do so, then the plaint shall be rejected. It obviously pre-supposes that there is already a determination about the required stamp papers, insufficiency therein, and the direction to supply the requisite, that is to say, the fall short. It cannot be that the Court may take no steps to determine the facts and issue a general and omnibus direction to supply whatever be the requisite stamp papers. When a law provides a penalt for non-compliance, as it does in the provision under discussion by rejection of the plaint, it always lays down with exactitude what is required to be complied with. Therefore, it seems to us that when a Court does l4 not specify what are the requisite stamp papers which a plaintiff has to supply but leaves the matter in general terms to make up whatever the .Deficiency in the Court fee may be, in the hands of the plaintiff, it cannot invoke its powers under Order VII, rule 11, C. P. C. Because there is no failure to comply with any definitive direction.
9. The learned trial Court has relied on Saeed Ahrnad and others v. Karam Singh and another (1) and Maulvi Ahmad Yar v. Mst. Hajran (2) for the proposition that the right of pre-emption is a predatory right which constitutes a drawback on the recognized principle of freedom of contract and further that it should not be protected from defect on technical or legal defect. No doubt, the learned trial Court has relied on high authorities of eminence and one feigns to appear to think differently but the duty appears to call that another aspect of the matter may also be taken notice of and that is that the right of preemption has been recognized in one form or another in almost all settled' societies from times immemorial and is a prominent part of the Islamic Law laid down nearly fifteen centuries ago and has been applied in the Sub-Continent for many centuries. See the illuminating and instructive judgment of Mahmood, J in the Full Bench case of Gobind Dayal v.
Inayatullah, etc. (3) and referred to in Allah Ditta v. Fateh Khan and others (4). It has been enacted by the legislature into an Act in the Province of Punjab. To call this law, 'predatory', which means, according to Concise Oxford Dictionary, 'addicted to, plunder or robbery' is rather too strong. The fact that it constituted a drawback on the recognized principle of freedom of contract and that is its blemish would hardly hold water because the principle of freedom of contract-itself product of the laissez faire era has lost its vitality in a short span of C time. On the other hand, the principle on which the right of pre-emption rests has held the field throughout the centuries and is an existing and enforceable law. All this discussion, however, does not mean or involve that the right of pre- emption is to be given effect to even if the preemptor does not invoke it, or, comply with the provisions of law applicable thereto. In the present case the learned trial Court seems to have been swa yed with the nature of the suit and does not appear to have taken any notice of the relevant provisions of the statute, i. e. Sections 8, 10 and 28 of the Court Fees Act, quoted above. It has already been:
(1) PLD 1949 Lah. 380 (2) PLD 1966 B J 1 43) I L R. 7 All. 775 (4) PLD 1970 Lah, *[Here in italics] ' seen in the earlier part of this judgment that the statements of the net profits prepared by the revenue officials are untrustworthy and either one or both are false in respect of one crop Kharif 1975, common in both the statements. In these circumstances, without taking action under the statutory provisions above mentioned, to punish the plaintiff-appellant by rejection of his plaint was contrary to the relevant provisions of Order VII, rule 11, C. P. C. As well as law which requires adjudication of disputes and not summary decisions out of hand to leave the disputants high and dry which can only in the long run, lead them to take law in their own bands.
10, We asked the learned counsel for the respondents to show any judgment or authority in support of their strenuous contention that initial time to make up the deficiency in the Court fee allowed by the Court being unjustified, the plaint must be rejected even though the deficiency had been made up during the period allowed by the Court. Besides referring to the general observations in the reported cases, where deficiency had not, in fact, been made up during, the period allowed, they did not refer to any other case or decision. They laid stress on the observation in the concluding part of the judgment in the case of Mst. Walayat Khatun v. Khalil Khan and another to the effect that "however, I want to add that in my opinion even the initial grant of time was subject to question because by it the period of limitation stood ex parte extended upto 18th March, 1976. The Court did not give any reason as to why that time was being granted ; was there no negligence of the plaintiff ; or was he not careless. It is to be remembered that in this case the plaintiff got jhar pedawar prepared privately after the institution of the suit. If so why could he not get it prepared before institution of suit. This shows that the plaintiff was negligent and non-serious right from the beginning and did not deserve any indulgence by the Court." Besides that the learned counsel for the appellant-plaintiff submitted that the above observation was obiter and that the case had been decided on the ground that in spite of grant of time, the then plaintiff-appellant had not paid up the court-fee within the time allowed, it is also submitted that the facts mentioned in the observation that the then plaintiff had got jhar pedawar prepared privately after the institution of the suit and why could he not get that prepared before institution of suit, are not applicable in the present case because the plaintiff-appellant in the case in hand had not got the statement of net profits prepared privately but through the Court. It is also submitted that there is nothing in the case in hand to show that the plaintiff-appellant was either negligent or non-serious right from the beginning, because after coming to know of the sale in question the plaintiff-appellant obtained a certified copy of the registered sale-deed on 19th August, 1976 and soon thereafter on 2nd September, 1976, he filed the suit. Without obtaining the copy of the sale deed, it could not be ascertained as to whether the suit should be filed and there was not much time to obtain statement of net profits except through Court. It was further submitted by the learned counsel for the plaintiff-appellant that in order to find the plaintiff-appellant to be negligent, the matter had to be enquired into and there being no prima facie evidence to that effect, the learned trial Court rightly granted time in the first instance to make up the deficiency in the Court fees which was made and accepted by the learned trial Court in the presence of the learned counsel for the respondents without any objection on their part. It is too late in the day for the respondents to turn round and question the order of the learned trial Court, especially when in identical circumstances the rival pre-emptor had himself got the time to make up the deficiency in the court-fees. We find that there is force in the submissions of the learned counsel for the plaintiff-appellant. Moreover, in Shah Nawaz and 6 others v. Muhammad Yousaf and 3 others (1) where the trial Court allowed time for paying the deficiency in the Court fees, the Supreme Court upheld the decision. It was observed in this case that "it is evident that unless the plaintiff is guilty of contumacy or positive mala fides in putting in deficient court-fees alongwith his plaint, they Court could in its discretion allow time to the plaintiff to put in the deficient court-fee." Now, 'contumacious' means, again according to Concise Oxford Dictionary, "insubordinate, disobedient, esp. To order of Court." Putting in plaint with deficient court-fees would not fall in the category of contumaciousness. As regards positive mala fides, it may be noticed that generally in this part of the country on pre-emption suits tentative court-fee is paid to be made good on obtaining mesne profits from the revenue officials generally through the Court because getting of statement of net profit prepared from the revenue officials, all know, is not only too difficult but too expensive as well. In the present case, not only the appellant-plaintiff acted like this but the rival pre-emptor, respondent No, 7, too did the same, that is, to pay the tentative court-fee and ask for preparation of mesne profits from the revenue officials through the Court. Therefore, it cannot be said that the appellant-plaintiff was acting with positive male fides when he was acting according to the normal practice.
11. Enough has been said above that the learned trial Court having allowed time to get the statement of net profits prepared and make up the deficiency and that having been done and accepted by the Court in the presence of the learned counsel for the respondents without objection, no exception can be taken thereto. As regards the subsequently found deficiency on the basis of two statements of net profits, it has, too, been shown above that the statements were unreliable and definitely wrong in respect of one common crop of Kharif, 1975, therefore, there was no question of mala fides or wilful neglect on the part of the appellants plaintiff.
12. As regards the strenuous contention of the learned Counsel for the respondents that the plaintiff-appellant was negligent in asking for the net profits of Rabi, 1975 and Kharif, 1975, instead of Kharif, 1975 and Rabi, 1976, it appears that it was a case of mistake in naming the relevant harvesting seasons. Since the plaint was filed on 2nd September, 1976, it seems that it was assumed that the preceding year's harvests would be the two harvests of 1975. Moreover, the harvesting seasons are not uniform throughout the Province as observed by our learned brother Mr. Justice Aftab Hussain in Munir Ahmad v. Muhammad Siddique and another (2). In these circumstances it cannot be said that the plaintiff-appellant was so negligent as to call for the summary rejection of his plaint. It appears that the learned trill Court instead of going deep in the matter-ascertaining correct facts and various provisions of law applicable thereto, resorted to the easy method of (1) 1972 SCMR 179 (2) PLD 1973 Note 118 at p. 183 disposal of the case by rejecting the plaint under Order VII, rule 11, C. P. C., may he on account of the requirement of giving certain amount of units of disposal per month and the month was closing being 25th of February, but this is obviously wrong way to go about to show doubtful efficiency at the expense of law and justice.
No more need be said in this behalf. The circumstances of the case clearly called for application of mind to the facts of the case and recourse to the relevant provisions of law enumerated above.
13. In view of what has been stated above, there is no option but to allow this appeal and set aside the order dated 25th February, 1978, of the learned trial Court. He is directed to proceed afresh to determine the exact court-fee payable by getting the net profits prepared accurately and take action under section 10 of the Court Fees Act. Since the matter involved application of various provisions of law and decisions to the facts of the case, the parties are left to bear their own costs.