' Suit for possession by pre-emption was filed by one Fajar Ali, since deceased, against Muhammad Yasin, Muhammad Yamin in respect of a sale of land made on 23rd March, 1966. The suit was instituted on 13th February, 1967. When the proceedings were pending in the trial Court, an application under Order VII, rule 11, C. P. C. For rejecting plaint was moved by vendees on 2nd November, 1981 on the ground that the plaintiff had not affixed requisite amount of court-fee payable thereon on the basis of ten times land revenue assessed on the suit land. Petition was resisted. To resolve the controversy, following two preliminary issues were raised by the learned trial Court :-
(1) Whether the suit has been incorrectly valued for the purposes of court-fee and jurisdiction 7 0. P.
A.
(2) If the issue No, 1 above is proved in the affirmative (If so), its effect on the case and also what is the correct valuation.
0. P. Parties
2. Since the onus of proof was placed upon the vendees/defendants, they produced one Anwar Khan a village Patwari to support their plea regarding deficiency in court-fee. Plaintiff, however, did not produce any evidence. Learned Civil Judge vide his order, dated 15th December, 1981, after due deliberation, found that the plaint was properly stamped in accordance with ten times land revenue mentioned in column 9 of Jamabandi relating to the year 1964-65 and consequently rejected the petition. Revision did not succeed and was dismissed by learned Additional District Judge on 27th October, 1983. It was observed by learned Additional District Judge that the court- fee had been rightly affixed and paid by the plaintiff. It was further observed that even otherwise the plaint could not be rejected under the circumstances because there was no fault of the plaintiff in doing so. In case any deficiency was found in court-fee, the same could have been made up under a direction from the Court under section 149, C. P. C,
3. Constitutional petition has been filed to assail both the orders, one passed by learned Civil Judge rejecting the petition under Order VII, rule 11, C. P. C. And the other passed by learned Additional District Judge in revision upholding the order passed by trial Court.
4. I have heard learned counsel for the parties and have examined the record. Learned counsel appearing for the petitioners (vendees) has contended that the plaintiff in the instant case deliberately made a wrong assessm ent for purposes of court-fee and consequently the required amount of court-fee had not been paid. This showed lack of vigilance on the part of the plaintiff. In view of under-assessm ent and consequent non-payment of requisite amount of court-fee, the plaint was liable to rejection under Order VII, rule 11, C. P. C. Learned counsel has contended that in Column 12 of Mutation No, 701, Land Revenue assessed is shown as Rs, 26.56 and in case of Dhal Bachh, land revenue shown is Rs, 26.71. This being the correct amount of land revenue assessed on the land, plaintiff was bound to pay court-fee on ten times the land revenue so shown in the Dhal Bach and mutation. Learned counsel on these premises has contended that the plaintiff had deliberately under-assessed the plaint for the purposes of court fee and he was not entitled to any indulgence on account of his negligent conduct. Though the Court had discretion under section 149 of the Code of Civil Procedure to grant extension of time to make up deficiency in court-fee yet in the absence of a proper application moved by the plaintiff for the said purpose and reply from the defendants/vendees, learned trial Court could not grant any extension to make up deficiency after expiry of prescribed period of limitation. The conduct of the plaintiff being culpably contumacious and negligent was not condonable by the Court. Learned counsel for the petitioners, therefore, contended firstly that the plaint being under-assessed and under-stamped was liable to rejection under Order VII, rule 11, C. P. C. And secondly the plaintiff by his own conduct had disentitled himself to grant of any extension of time to make up deficiency in court-fee in a pre-emption suit which obviously is based on predatory right.
5. Learned counsel has further contended that all cesses imposed under other laws for the time being in force formed part of land revenue which in law would form correct basis for calculation of necessary amount of court-fee payable upon plaint. Learned counsel for the respondents however, has contended that village Patwari produced by the defendants stated clearly in evidence that the land revenue assessed was Rs, 25.91 for the whole year which was correctly recorded in column 9 of the Jamabandi Exh. P. 1 for the year 1964-65. In view of the statement of village Patwari which was in accordance with the entries of Jamabandi Exh. P.-1, learned trial Court rightly did not place reliance on the mutation of sale and Dhal Bachh to find out assessed land revenue on the land in dispute. In view of this state of evidence, both the preliminary issues were found in favour of the plaintiff and consequently petition under Order VII, rule 11 praying for rejection of plaint was dismissed. This being a finding of fact recorded by trial Court based upon proper appreciation of the evidence produced was not open to scrutiny in constitutional jurisdiction. The order passed by the trial Court was endorsed in its entirety by learned Additional District Judge in revisional jurisdiction with the further observation that in case of any alleged deficiency, discretion could have been exercised under section 149, P. P. C. In favour of the plaintiff to make up the deficiency in court-fee before ordering rejection of the plaint. Learned counsel has further contended that rates and cesses are not included in the term land revenue for purposes of calculation of the amount of court-fee payable. Learned counsel has referred to the definition of term land revenue given in section 4 (14) of the Punjab Land Revenue Act, 1967, which for facility of reference is reproduced below :- ' Land Revenue' means land revenue assessed or assessable under this Act or under any other law for the time being in force relating to land revenue, and includes rates imposed on account of increase in the value of land due to irrigation."
' Rates and cesses which have been separately dealt with in section 4 (213) of the Act are not included in the definition of the term land revenue as given above. In support of the contention raised that rates and cesses are not included in land revenue, learned counsel has placed reliance upon the case of Daraz Ali and others v. Nathu Khan (1) wherein it has been observed that term 'land revenue' means "land revenue assessed or assessable under Land Revenue Act or under any other law for the time being in force relating to land revenue and includes any rates imposed on account of increase in value of land due to irrigation". Other dues such as rates, cesses and taxes are not part of land revenue. Leave to appeal was refused by the Supreme Court of Pakistan against the abovesaid decisiorr on 27th April, 1982 (1982 SCMR 1219). In view of the law laid down in the case of Daraz Ali referred to above, learned counsel contended that the cesses shown to be part of land revenue in Dhal Bachh could not be taken into consideration for purposes of court-fee.
The entries of the relevant Jamabandi which could form the basis for correct determination of court-fee leviable on plaint placed on file in its column No, 9 showed that the land revenue assessed was Rs, 4.32. Presumption of truth is attached to the entries of the Jamabandi under section 52 of the Punjab Land Revenue Act, 1967. As against the entries of Jamabandi showing assessed land revenue, no reliance could be placed on mutation of sale or the entries in the Dhal Bachh. Learned counsel has further contended that even if there was any deficiency in court-fee, plaint was not liable to rejection unless correct determination of the amount was first made by the trial Court and thereafter plaintiff was entitled at least to one opportunity to make up deficiency failing which the plaint could be rejected. He has placed reliance on Mst. Parveen v. Mst. Jamsheda Begum and another (2) in which the Hon'ble Supreme Court observed :- "It may also be observed that the learned trial Judge could not have rejected the plaint under Order VII, rule 11, C. P. C. On the mere discovery that the claim was undervalued, unless under clause
(b) of rule 11, the plaintiffs having been required by the Court to correct the valuation within a time specified by the Court, had failed to do so. Similarly regarding insufficiency of court-fee, the plaint could be rejected under clause (c) of rule 11, if the plaintiffs, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, failed to do so. In both these eventualities, the plaint could have been rejected under Order VII, rule 11, C. P. C. And it would not have been proper, without recourse to this provision, to dismiss the suit as time-barred. It could not be said
(1) 1982 CLC 2399 (2) PLD 1983 SC 227 ' that if the suit was within time on the day the plaint was duly presented, it became time-barred simply because the plaint could be rejected under clause (b) or (c) or for the matter clause (a) or
(d) of rule 11 (after the period of limitation) for the reason mentioned in the said clauses ; the suit could not be dismissed on the ground of limitation merely because the plaint when originally otherwise duly presented in a Court, was not correctly stamped."
6. In view of the law authoritatively laid down by the Hon'ble Supreme Court of Pakistan, the plaint could not have been rejected on a mere discovery of deficiency in court-fee unless correct amount of court-fees payable was first determined and in case of deficiency in court-fees plaintiff A. Failed to make up the same in accordance with the direction issued by the Court under Order VII, rule 11, C.
P. C. Both the courts below have found that the plaint had been correctly assessed and required amount of court-fee paid thereon. The findings recorded by the courts below are based upon proper appreciation of evidence adduced by the parties. Even otherwise Court-fee Act which was enacted to secure revenue for the State is not meant to arm a litigant with a weapon of technicality to be used against his adversary for defeating his legal and just claims.
7. On a review of the whole matter giving rise to the controversy relating to the deficiency in court- fee payable on a plaint, the Courts below have concurrently observed against the defendants (vendees). Suit for preemption instituted as far back as 13th February, 1967 has not so far been decided. I do not feel persuaded to exercise constitutional jurisdiction to interfere with the orders passed by the Courts below as they do not suffer from any jurisdictional error. They also do not run contrary to provisions of statute law or precedents of Superior Courts.
8. In view of the above, finding no force in writ petition, I proceed to dismiss it leaving the parties to bear their own costs. Before parting with the case, I feel constrained to observe that pre-emption suit filed more than! Fifteen years ago has not so far been decided by the trial Court. In view of this long delay learned trial Court is directed to devote all human efforts to decide this old matter, to minimize parties' agony.