' This appeal against the order of the learned District Judge, Lahore, dated the 14th October, 1980, accepting respondent l's appeal against the order of the learned Civil Judge, Lahore, dated the 13th November, 1979, dismissing her suit for possession by pre-emption of 29 Kanals of land in dispute situate in the area village Janjatey, tahsil and district Lahore, under Order VII, rule 11 of the Code of Civil Procedure and remanding the case to the learned trial Civil Judge arises out of the following circumstances. On the 16th July, 1973, Muhammad Rafiq and Muhammad Shafi, sons of Jalal Din, appellants, purchased the land from Hassan Muhammad Khan, respondent 2, husband of Mst.
Batoolan Bibi, respondent 1, by means of a registered sale-deed. On the 9th July, 1974, respondent I instituted suit for possession by the pre-emption of the land in question in Civil Court, Lahore. In the plaint she valued the cause for purposes of court-fee and jurisdiction at Rs, 34500, being fifteen times the net profits of the land, and paid court-fee accordingly thereon. The appellants in their written statement admitted the valuation-of the suit as fixed by respondent I to be correct. Till the time the suit came up for hearing of final arguments the appellants did not raise any objection touching incorrectness of the value of the suit as originally stated by respondent 1 in the plaint. It was on the 16th September, 1978, when the learned trial Judge was to hear final arguments that be passed order directing respondent 1 to correct the value of the case according to fifteen times the net profits of the land for the year next before the institution of the suit and make up deficiency in court-fee by the 15th October, 1978. No order calling upon respondent 1 to pay up deficiency in court-fee was made by the learned trial Court before the last mentioned date.
2. The appellants challenged the learned trial Court's order dated the 16th September, 1978, in revision before the learned District Judge, Lahore, who set aside the order on the ground that it being a suit for preemption a valuable right of limitation had accrued to the appellants and that the same could not be denied by allowing respondent 1 to pay court-fee. He remanded the case to the learned trial Court for further proceedings and thereupon the learned trial Court dismissed the suit as it had no other option.
3. In appeal preferred by respondent 1 the learned District Judge, following the rule laid down in Malik Jan Muhammad v. Shukaruddin considered that in view of the provisions of sections 9 and 10 of the Court Pees Act, 1870, the learned trial Court was obliged to stay the proceedings of the suit to enable respondent 1 to pay court-fee by a given date and consequently reversed the decision of the learned trial Court. Feeling aggrieved the appellants have come up in appeal to this Court.
4. The learned counsel, relying upon the law laid down by the Supreme Court in Mst. Walavat Khatun v. Khalil Khan maintained that respondent 1 had been guilty of gross carelessness and negligence in not getting the statement of net profits of the land in dispute pertaining to the year before filing of the suit prepared in time and in not paying requisite court-fee accordingly. However, in view of the fact that the appellant admitted the value of the suit fixed by respondent 1 for the purpose o court-fee and jurisdiction as also the amount of court-fee paid on the plaint to be correct in their written statement, existence of any ma/afides on the part of respondent I cannot be presumed. Respondent 1 cannot b branded with the charge of commission of contumacious negligence matter of payment of court-fee. Having not acted with positive mala fides it was not a case in which respondent 1 could have been visited with the harsh penalty of rejection of her plaint.
Hence in these circumstances the plaint ought not to have been rejected. The order of the learned District Judge is just and proper and does not demand interference. The appeal is dismissed in limine. 1980 CLC 186 PLD 1979 SC 821