' SHUJAAT ALI KHAN, J.---By virtue of this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has called in question the vires of judgment dated 3-3- 2008 whereby the revision petition filed by the respondents was accepted and the plaint of the suit filed by the petitioner was rejected under Order VII, Rule 11 of C . P. C .
2. Shorn of unnecessary details, the petitioner filed a suit for possession through pre-emption against respondents Nos.1 and 2. While issuing notice to other parties learned trial' Court, vide order dated 11-11-2006, directed the petitioner to deposit Rs.10,000 as Zar-e-Soam which the petitioner accordingly deposited on 3-12-2006. The respondents after appearing before the Court filed an application under Order VII, Rule 11 of C.P.C. For rejection of plaint of the suit filed by the petitioner on the ground that the petitioner filed the suit by concealing material facts and according to Mutation No.503 the property was sold against a consideration of Rs.3,00,000 and the petitioner was bound to deposit Zar-e-Soam according to the amount of consideration mentioned in the mutation. The said application was dismissed by the learned trial Court vide order dated 7-3-2007 against which the respondents filed a revision petition which was accepted by the learned Additional District Judge, Ferozewala, and the plaint of the suit filed by the petitioner was rejected under Order VII Rule 11 C.P.C.; hence this petition.
3. Learned counsel for the petitioner contends that while fixing the amount of Zar-e-Soam learned trial Court has to assess the amount of consideration tentatively; that according to plaint the petitioner mentioned in clear-cut words that the property was sold against a consideration of Rs.30,000; that the petitioner did not challenge the order of fixation of Zar-e-Soam by the trial Court and that the revisional Court had no authority to reject the plaint. In support of his contentions, learned counsel has relied upon the cases reported as Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited .(PLD 2012 SC 247), Muhammad Sarwar v. Ahmad Khan through L.Rs.
And 2 others (2012 CLC 284) and Abdul Wahid and 8 others v. Sardar Ali and 2 others (PLD 2000 Lahore 190).
4. Conversely, learned counsel for the respondents submits that revisional Court is fully empowered to reject plaint under Order VII Rule 11 of C.P.C.; that as the petitioner filed suit suppressing certain facts, plaint of his suit was rightly rejected by the learned revisional Court; that as order regarding fixation of Zar-e-Soam was passed in absence of the respondents they found no occasion to challenge the same and after having coming to know about the same they readily filed application under Order VII, Rule 11 of C.P.C. For rejection of plaint of the suit filed by the petitioner and that the person who comes to the Court with unclean hands cannot be covered under the shadow of an order of the Court. In addition to his oral submissions learned counsel has relied upon the cases reported as Raja Ali Shan v. Messrs Essem Hotel Limited and others (2007 SCMR 741), Kaley Khan v.
Additional District Judge, Multan (2006 MLD 210), Mst. Mazhar Khanum v. Sheikh Saleem Ali and 7 others (2004 CLC 799), Abdul Rehman v. Sher Zaman and another (2004 CLC 1340), Niamat Ali and 3 others v. Mst. Sardaran Bibi and 4 others 2003 YLR 51, Messrs Abdul Hamid.v. Board of Intermediate and Secondary Education (1991 MLD 672) and Messrs Paper Corner v. Board of Intermediate and Secondary Education (1991 CLC 740).
5. I have heard learned counsel for the parties at considerable length and have also gone through the documents appended with this petition as well as the case-law cited at the bar.
6. Firstly, while dealing with the question of fixation of Zar-e-Soam, I am of the view that according to section 24 of the Punjab Pre-emption Act, 1991, it is discretion of the Court to fix Zar-e-Soam. The said section, for facility of reference, is reproduced hereunder:-- "24. Plaintiff to deposit sale price of the property.---(1) In every suit for pre-emption the Court shall require the plaintiff to deposit in such 'Court one-third of the sale price of the property in cash within such period as the Court may fix: ' Provided that such period shall not extend beyond thirty days of the filing of the suit: ' Provided further that if no sale price is mentioned in the sale-deed or in the mutation, or the price so mentioned appears to be inflated, the Court shall require deposit of one-third of the probable value of the property."
7. A perusal of afore-quoted provision of law makes it clear that while fixing Zare-Soam the court has to take into consideration the contents of the plaint and the documents annexed therewith. In the present case according to Para No.2 of the plaint of the suit filed by the petitioner, property in dispute was sold against consideration of Rs.30,000. Further, according to copy of the Mutation filed by the petitioner with his suit, the amount of consideration against which the property was transferred from the name of Muhammad Aslam to respondents is not legible. In this state of affairs learned trial Court was left with no option but to fix Zar-e-Soam according to contents of the plaint and no illegality was committed by it while determining the same. Further, the order regarding deposit of Zar-e-Soam was passed by the trial Court on 13-11-2006 and the amount was rightly deposited within stipulated period of 30 days. Though power of attorney was submitted on behalf of the respondent/defendant on 11-12-2006 but no objection was taken qua amendment/ fixation of the Zar-e-Soam despite the fact that ample time was available with the respondent/defendant to take objection in this regard but he did not opt to do so rather filed an application under Order VII, Rule 11 of C.P.C. On 9-11-2007 i.e. 11 months after deposit of Zar-e-Soam by the petitioner.
8.Now coming to the point as to whether plaint of suit can be rejected due to non-fixation of exact amount of Zar-eSoam. In this regard I am of the view that though due care and caution is required to be taken by the trial Court while fixing Zar-e-Soam but the trial Court is not supposed to be very mathematical about exact quantum of the consideration. The only documents available before the court, for fixation of Zar-e-Soam are the plaint and annexures thereto. Further, the amount of Zar-e-Soam is tentative in nature and exact amount of consideration is to be determined by the trial Court after recording evidence of the parties and considering other relevant facts. Moreover, nobody is to suffer due to any omission on the part of the Court. Reliance in this regard is placed on the case reported as Ladha Khan and others v. Mst. Bhiranwan (2001 SCMR 533).
9. So far as competency of the revisional court to reject plaint under Order VII, Rule 11, C.P.C. Is concerned, I am of the view that in the instant case the revisional Court directly dealt with the order passed on the application filed by the respondent under Order VII, Rule 11 of C.P.C., therefore, it was competent to adjudge vires of the impugned order. However, the approach adopted by the learned revisional Court, while accepting revision petition of the respondent, is not according to law on the subject. At the most matter could be remanded back to the trial Court for framing of preliminary issue on the point and then give findings as to whether plaint of the suit filed by the petitioner could be rejected on the basis of concealment of facts.
10. Now coming to the plea of the respondent that as the suit was filed by the petitioner on the basis of forged document, plaint of his suit was rightly rejected. In this regard, I am of the view that if the petitioner/plaintiff produced any forged or fabricated document, law has provided a specific procedure for that purpose and the learned trial Court is fully competent to proceed against a defaulting party in terms of section 195, Cr.P.C.
11. Insofar as the case-law cited by learned counsel for the respondent is concerned, the same is not applicable to the instant case due to peculiarity of facts and proposition of law involved therein.
12. For what has been discussed above, instant petition is accepted, the impugned order is set aside and the case is remanded to the learned trial Court for decision afresh within a period of 6
(six) months from the receipt of certified copy of this order.