' SAYED ZAHID HUSSAIN, J.--- Munir Hussain respondent No,1 had instituted a suit for declaration and for pre-emption qua the sale transaction dated 12-9-1973 made by respondents Nos.3 and 4 in favour of the appellants. The suit was contested, which after trial was decreed by the learned trial Court, Jhelum vide judgment dated 20-5-1977. Only the appellants filed appeal thereagainst, which was accepted by the learned Additional District Judge, Jhelum on 4-1-1981. The said judgment was then assailed by respondentNo,1 (pre-emptor) by means of R.S.A. No,7 of 1981, which was accepted.
By the learned Single Judge of the Lahore High Court, Rawalpindi. Bench on 9-1-2001. This appeal has arisen from the same, in which leave was granted on 20-11-2001 to the effect:--- "(i) As to whether a person who himself contends that the transaction of the property be concealed because it is the result of fraud collusion etc. Can in the same breath claim its possession through right of pre-emption of the same property? And
(ii) As to whether it was not necessary for the pre-emptor to prove that the transaction was genuine and valid, therefore, he had a right to pre-empt the property and if not so, then how on a sale which is based on fraud etc. a suit for possession through preemption can be based?
2: Mr. Zaheer Bashir Ansari, Advocate Supreme Court the learned counsel for the appellants and Hafiz S.A. Rehman Senior Advocate Supreme Court, the learned counsel for respondent No,1, have been heard in the matter.
3. The sale sought to be pre-empted by respondent No,1 took place on 12-9-1973 and consequently Mutation No,642 was sanctioned to that effect. Though, initially the declaratory relief was also sought about the same transaction, yet in the alternative to pre-empt the sale respondent No,1 had claimed superior right of pre-emption. The trial Court framed several issues about which the parties produced the requisite evidence.
4. On completion of the trial, the Court reached the conclusion that the plaintiff was a co-sharer as a result whereof he had the superior right of pre-emption. It found that the price of Rs,12,000 was the market value of the suit-land. Issue No,6 was about the valuation of the suit for the purpose of court-fee. On this the Court took the market value of the suit-land i,e, Rs,12,000 for the purpose of court-fee and ordered the plaintiff to make good the same within a month. Issue No,8 was as to whether the appellants/defendants were Mangla Dam affectees and thus, had the protection of Notification No,8776-76/110-IR-III dated 20-1-1977. The finding on this issue went against the appellants. Resultantly, the suit was decreed on payment of the balance sale consideration less 1/5th of the pre-emption money, within a month. The appeal preferred by the appellants/vendees as mentioned above, was accepted by the learned Additional District Judge, Jhelum. Before the First Appellate Court, the finding as to superior right of the plaintiff had not been contested, neither the price of the land and the only issue upon which the matter was agitated before the Appellate Court was the "contumacious conduct of the plaintiff". The background in which the Court proceeded to consider that plea was that the suit was filed on 12-9-1974 and had been valued at Rs,200 upon payment of Rs,15 as court-fee (treating it as a declaratory suit) and in addition court- fee of Rs,5 had been paid for the alternative relief of possession through preemption. It was noted by the First Appellate Court that the plaintiff was duty bound to have got prepared the statement of net profits before filing of the suit for pre-emption, which was not done by him. Relying upon Mst.
Walayat Khatun v. Khalil Khan and another PLD 1979 SC 821 it was found that the conduct of the plaintiff was highly contumacious, who had taken no step for the preparation of statement of annual net profit well before the institution of the suit, he was guilty of gross negligence and was not entitled to any leniency and the suit is liable to be thrown away. Reversing the finding of the trial Court, the appeal was accepted : dismissing the suit. The learned Judge in the High Court while deciding the second appeal took note of the legal position as settled by this Court through judgment in Siddique Khan v. Abdul Shakoor Khan PLD 1984 SC 289 that without providing an opportunity to the plaintiff to make good the deficiency in court-fee, the suit could not be dismissed and that the plaintiff had been afforded only one chance for making up the deficient court-fee, he could not be held to be contumacious in complying with the Court's direction. It reversed the judgment passed by the First Appellate Court and restored that of the trial Court. It may be observed that the contest between the parties before the First Appellate Court as also before the High Court in second appeal remained confined to only one issue i,e, the valuation put by the respondent for the purpose of court-fee and the deficiency of the court-fee paid by him at the time of institution of the suit. At both the stages no other point was agitated. Therefore, any attempt by the appellants to have reopened, the issues decided by the trial Court and not agitated before the Appellate Court, cannot be countenanced. A party to the litigation cannot at its own whims abandon a plea and then at a late stage reagitate the same. Thus, in the circumstances the points noted in the leave granting order have lost their efficacy.
5. As is evident from the facts and circumstances of this case the First Appellate Court had taken an erroneous view as if the respondent/ plaintiff's conduct was contumacious and liable to be non-suited. Its reliance upon Mst. Walayat Khatun's case was inapt as the legal position that prevails till date is the one stated by the learned Single Judge of the High Court and ever since Siddique Khan's case (supra) is being followed. In Noor Muhammad v. Hassan Muhammad 1986 SCMR 1345 in a suit for pre-emption, the plaintiff was non-suited for paying the deficient court-fee on the plaint and that his conduct was contumacious. Relying upon Siddique Khan's case it was observed by this Court that neither the conduct of the plaintiff could be said contumacious nor he can, be non-suited unless the Court had determined the requisite court-fee and given him opportunity of making good the same in Ch. Nazir Ahmed v. Abdul Karim and another PLD 1990 SC 42 the principle laid own in Siddique Khan's case (supra) was again followed and explained observing that "the Court is bound to ascertain the deficiency in the court-fee affixed on the plaint and then give time to the plaintiff to make up the deficiency and if the plaintiff complies with the order within the time, the defect in the plaint is deemed to have been removed from the date it had been originally filed in Court". Similar was the view taken in Muhammad Hanif and others v.
Muhammad and others PLD 1990 SC 859. Reference in this context may also be made to Mukhi Chatromal and another v. Khubchand and 6 others 1993 SCM R 1113, Sardar Muhammad Kazim Ziauddin Durrani and others v. Sardar Muhammad Asim Fakhuruddin Durrani and others 2001 SCM R 148 and Sultan Ali v. Khuda Bakhsh 2004 SCM R 742. Nothing has been brought to our notice to show that any contrary view taken by this Court was attracted to the facts and circumstances of this case.
6. On consideration of the matter, we find that the view taken by the High Court was absolutely correct and justified, which calls for no interference by this Court.
7. In view of the above, the appeal is without merit, it is dismissed accordingly. No order is however, made as to costs.