' RAUF AHMAD SHEIKH, J.---The petitioner has assailed the vires of judgment and decree dated 24- 2-2006 passed by the learned Additional District Judge, Pakpattan, whereby an appeal filed by him against order dated 19-1-2005 passed by learned Civil Judge rejecting the plaint under Order VII Rule 11, C.P.C. In a suit for possession through pre-emption was dismissed.
2. The plaintiff/petitioner filed a suit for possession through pre-emption of land measuring 4 kanals fully described in Para A No, 1 of the plaint. It was stated that the disputed land was alienated for a sum of Rs.40,000 through Mutation No,1092 dated 24-8-2002 and the same was its market value at the time of sale. The plaintiff/ petitioner got information about the sale on 19-9- 2002 at 4.00 p.m. In a majlis at his house through Muhammad Mansha and immediately he in presence of the witnesses and other, persons pronounced that he had superior right of pre- emption in respect of the land and would enforce his right. Then he made talb-i-ishhad after obtaining of B the copy of mutation on 20-9-2002 in presence of the witnesses and then gave a notice through registered post for making talb-i-ishhad in presence of witnesses on 23-9-2002. He asserted that he is 'Shafi Jar' and has also common source of irrigation and passage. He also asserted that he is co-sharer in the Khata. He valued the suit for the purposes of court-fee and jurisdiction at Rs.22,500 but added that if after preparation of the 'Thar Paidawar' (statement of produce) any deficiency is found, it would be made good as per of the order of the Court.
3. The defendant No,2 contested the suit and contended that a court-fee of Rs.3,000 on the ostensible sale price was required and the same was not paid so an order for making up of the deficiency be passed. The other contentions were also controverted.
4. On 24-11-2004 the learned trial Court held that the net profits arising out of the disputed land as per statement of Jhar Paidawar (statement of produce) was Rs.9,695.85 and court-fee 15 times of the same is required to be affixed and directed the plaintiff/petitioner to affix the court-fee according to 15 times of the net profits. The petitioner/plaintiff failed to comply with this order so the plaint was rejected under Order VII, Rule 11, C.P.C. The appeal filed by the petitioner was dismissed by the learned ADJ through the impugned judgment and decree.
5. The learned counsel for the petitioner has contended that as per statement of produce (Mark-A) the net profits of land measuring 4 kanals was only Rs.1019.51 so the valuation of the suit for the purposes of court-fee and jurisdiction was Rs.15,292.65 only and no court fee was required on this valuation and that the statement of produce relied upon by the learned trial Court, inter alia, showing the net profits of Rs.9,695.85 was incorrect and based on false calculations of 5 years so the order dated 24-11-2004 and all subsequent orders are not sustainable.
6. The learned counsel for the respondents has vehemently controverted these arguments and contended that the plaintiff/petitioner contumaciously disobeyed the order requiring him to make up the deficiency in the court-fee so the learned trial Court was fully empowered to reject the plaint and no irregularity has been committed.
7. The order dated 24-11-2004 is ambiguous and does not mention the deficiency in court-fee in specific terms, E which was required to be made up. It also did not bear a direction requiring the plaintiff/petitioner to correct the valuation or to make up the deficiency in the court-fee indicating the specific amount. In these circumstances, the plaint could have not been rejected under Order VII, Rule 11(b) or (c), C.P.C. Above all there are two statements of net profits, one indicating the net profits as Rs.1019.51 arising from Kharif, 2001 to Rabi, 2002 and the other showing net profit of Rs.9695.85 w.e.f. Kharif, 1998 to Kharif, 2002. The net profits arising out of last five years, was irrelevant for determining the valuation of the suit for the purposes of court-fee and jurisdiction.
The order dated 24-11-2002 was patently illegal and all subsequent orders passed on the basis of the same were also void. The learned trial Court and the learned Additional District Judge both fell in error and committed material irregularity ' Causing miscarriage of justice.
' Consequently order dated 24-11-2004, the judgment and decree dated 19-1-2005 passed by learned Civil Judge and the judgment and decree dated 24-2-2006 passed by learned ADJ, Pak pattan, are hereby set aside. The suit is remanded to the learned trial Court with the direction that the valuation of the suit for the purposes of court-fee and jurisdiction be determined in accordance with law and if it is found that there is any deficiency in the court-fee, the plaintiff/petitioner be directed in specific and clear terms to make up the same. The parties are directed to appear before the learned trial Court on 23-7-2010. The learned trial Court is directed to decide the suit within three months from the next date of hearing without fail. The civil revision is accepted in the above terms.