' Land measuring 93 Kanals 5 Marlas situated in Mauza Gohar Jagir, Tehsil Kasur, purchased by Barkat All son of Qamer Din defendant from Muhammad Shafi and others was subjected to a pre- emption suit by Muhamamd Yaqoob son of Noor Muhammad. Right to pre-empt was asserted in a Civil suit instituted on 20-9-1976. Right of pre-emption was claimed being owner of the estate and Patti wherein the suit land was situated. Suit was resisted by the vendee, Barkat Ali. Written statement was filed by him. Following issues arising for decision between the parties were settled by the trial Court:-
(1) Whether the suit is time-barred? O.P.D. (Onus objected)
(2) Whether the suit is for partial pre-emption? O.P.D.
(3) Whether the plaintiff has superior right of pre-emption? O.P.P.
(4) Whether Rs.55,000 were actually or bona fide fixed as vice of the land in dispute? O.P.D.
(5) If not, what was the market price at the time of sale. Onus on Parties.
(6) Whether the defendant made improvement over the suit land, if so, how for they were entitled?
O.P.D.
(7) Relief.
' After the issues were framed, the suit was adjourned for parties' evidence. It is stated that after the plaintiff had concluded his evidence in affirmative reserving his right to appear himself in affirmative as well as in rebuttal, the defendant's evidence was recorded by the trial Judge. On 11-1- 1984, an application under Order VII, rule 11, C.P.C. was presented by the vendee-defendant praying for rejection of the plaint on the ground that deficiency in court-fee had not been made good within the prescribed period of limitation. After calling for reply from the plaintiff/pre-emptor, the learned Civil Judge trying the suit vide order dated 25-3-1981 disallowed the above-noted petition seeking rejection of the plaintiff's plaint. Learned Civil Judge in his order dated 25-3-1981, observed:- "The plaintiff has filed one suit for possession through pre emption. The suit is pending. The defendant has filed an application under Order VII, rule 11 for the rejection of the plaint. According to the petitioner/defendant the plaint should be rejected on the ground that it is time-barred. The second objection raised by the defendant/petitioner is that the court-fee affixed by the plaintiff is insufficient. The plaintiff in spite of the order of the Court failed to affix the proper court-fee. The reply to the application has been filed. According to the plaintiff/ respondent at the time of the institution of the suit court-fee worth of Rs.1,600 was affixed but later on, on the directions of the Court, correct court-fee was affixed and amended plaint was filed.
' I have heard the arguments and perused the record thoroughly. The contentions of the plaintiff/respondent is correct to this extent that he affixed the correct court-fee on the directions of the Court. I have also gone through the issues framed by the Court. Issue No.1 is whether the suit is time-barred. There is no issue on the point of court-fee. Under the circumstances so far as the plea of the defendant of time-barred is concerned, it will be decided at the conclusion of the case when both the parties have produced their evidence. So far as the second objection of court-fee is concerned, the learned counsel for the petitioner/defendant did not raise any objection at the time of framing of isses. The plaintiff/respondent has already affixed the court fee on the directions of the learned Court. The application, under circumstances, therefore, merits rejection. The same is, therefore, rejected. Announced 25-3-1981."
' Order refusing prayer for rejection of the plaint was assailed in revisional jurisdiction by the vendee before the District Court. The revision was entrusted for disposal to learned Additional District Judge, Kasur. Vide order dated 3-3-1984, learned Additional District Judge interfered in his revisional jurisdiction and setting aside the order dated 25-3-1981 passed by the trial Court, has rejected the plaintiff's plaint under Order VII, rule 11, C.P.C. It is in this background that the plaintiff has invoked the constitutional jurisdiction of this Court.
2. I have heard learned counsel for the parties and examined the trial Court's record which was also requisitioned. Learned counsel for the Writ petitioner contended that the defendant/vendee had raised no objection, in written statement in regard to the deficiency in court-fee. Consequently, no issue on the point, had been raised by the trial Court. The plaintiff's evidence had been recorded in affirmative. Defendant's evidence has also been concluded. The suit was in its final states and almost ripe for decision. Without amending the written statement incorporating the plea raised in petition under Order VII, rule 11, C.P.C. the prayer for rejection of plaint could not have been entertained considered. He further contended that the necessary court-fee stamps calculated in accordance with Jhar Pedawar had already been placed on file. No objection was raised by the defendant. He thus has acquiesced in proceeding and was estopped subsequently to raise objection qua deficiency in court-fee and ask for rejection of the plaint. Assuming that the plaint was still deficiently stamped, no order rejecting the plaint could have validly been passed by the Court unless first the correct amount of court-fee leviable was determined and the plaintiff asked to make good the deficiency. Learned counsel submitted that in the case neither the determination of court-fee payable was made by the Court nor the plaintiff given an opportunity to make good the deficiency. In this view, of the matter, he contended that the order rejecting the plaint was untenable under law in view of the recent authoritative pronouncements of the Supreme Court of Pakistan in Mst. Parveen v. Mst. Jamsheda Begum and another PLD 1983 SC 227, Shahna Khan v.
Aulia Khan and others PLD 1984 SC 157, Siddique Khan and 2 others v. Abdul Shakur Khan and another B L D 1984 SC
28. Learned counsel also submitted that the provisions of Court Fee Act are aimed at the secure revenue for the State and did not arm a litigant with a weapon to be used against his adversary to defeat a valid and just claim.
3. Learned counsel for the respondent (vendee) however, vehemently asserted that the plaintiff was bound to get prepared Naqsha Jhar Pedawar and then assess the plaint for purposes of court-fee on 15 times of the net profits accruing from the land sold in the year preceding the institution of the pre-emption suit. The plaintiff had full one long year at his disposal. No explanation was forthcoming on record as to why the plaintiff had failed to provide the statement of Annual Net Profits and pay the correct amount of court-fee leviable upon his claim in time.
Learned counsel also submitted that since originally the plaint was admittedly not only under assessed but deficiently stamped also, it was not a plaint in the eye of law to be acted upon for taking proceedings in the suit. The suit was legally instituted when the plaint bearing requisite court-fee leviable thereon is presented before the court/officer competent to receive it. He asserted that though the plaintiff had placed the necessary court-fee stamps on file, yet in the absence of a proper order by the Court, condoning the original lapse, deficiency in court-fee cannot be validly held to have been made up in accordance with law. As regards non-raising of objection in the written statement, it was contended that the objection being purely legal could have been raised by the defendant/vendee at any time and at any stage of proceedings for the plaint according to him can be rejected even at the fagend of the trial if the Court came to the conclusion that it was deficiently stamped. He has placed reliance on Rahim Bakhsh v. Muhammad Bakhsh and 2 others PLD 1976 Lah. 686; Muhammad Nawaz Khan v. Muhammad Zaman Khan and 3 others PLD 1980 Lah. 155; Sohara v. Rashid Ahmad and others PLD 1981 Lah. 261; Muhammad Hussain v. Muhammad Amir and another 1984 CLC 1469; Muhammad Riaz and another v. Allah Yar 1984 CLC 1189; Khuda Bakhsh and others v. Liaquat Ali and others 1984 CLC 3134 to contend that it was not the duty of the Court to determine the amount of court-fee payable by the plaintiff. The Court had given a direction to the plaintiff to make good the deficiency and then it was his obligation to have taken out the correct Fard Khalis Munafa, and pay court-fee accordingly. A composite order asking the plaintiff to get prepared Naqsha Jhar Padawar and pay court-fee accordingly, according to the learned counsel was all that was requried. In the case under considera tion, the plaintiff, despite several opportunities had, not made good the deficiency.
By his negligence, a valuable right had accrued to the defendant/vendee of which he could not be lightly deprived of. In this background he contended that the learned Additional District Judge rightly interfered and ordered, rejection of the plaint.
4. Perusal of the trial Court's record which has been examined with the assistance of both the learned counsel shows that the pre-emption suit was instituted on 20-9-1976. The plaint was in the first instance assessed at Rs.1,600 and the amount of court-fee calculated on this assessment was paid. Thereafter, the plaintiff was directed by the Court to make good the deficiency in accordance with Jhar Pedawar. The plaintiff thereafter on his own has placed court-fee stamps worth Rs.2,205 on file on 12-9-1977. The stamps were presented on the date fixed in presence of the vendee- defendant. No objection was raised then. Thereafter, the proceedings continued and the parties evidence was recorded by the trial Court. No objection was raised in the written statement that the plaint is either under assessed or deficiently stamped. In the absence of objection in the written statement, no issue was raised thereon. It is admitted that the court-fee stamps presented in Court correctly represents the amount of court-fee payable upon the plaint in accordance with Jhar Pedawar. Only objection is that no order of the Court was made authorising the plaintiff to do so.
The record reveals that the trial Court had at no stage of the proceedings determined the exact amount of court-fee payable by the plaintiff nor a direction incorporating the amount of court-fee payable has been made by the Court. A composite order leaving the matter to the plaintiff to determine the amount of court-fee and pay it is not a valid order. Before rejecting the plaint it is the duty of the Court to find out the exact amount of court-fee payable, asking the plaintiff to make good the deficiency if one exists failing which to reject his plaint. In the instant case, the record shows that no such determination was made by the Court. Nonetheless, the plaintiff had supplied the deficiency of court-fee which was accepted by the Court and the defendant. This can well be presumed from the fact that the court-fee stamps were allowed to be brought on record by the Court without objection by the vendee/defendant. It has been observed in Malik Jan Muhammad v.
Shukar-ud-Din and 6 others 1980 CLC 186 by a Division Bench of this Court that:- "When a law provides a penalty for non-compliance, as it does in the provision under discussion by rejection of the plaint it always lays down with exactitude what is required to be complied with.
Therefore, it seems that when a Court does not specify what are the requisite stamp papers which' a plaintiff has to supply but leaves the matter in geneal terms to make up whatever the deficiency in the court-fee may be in the hands of the plaintiff, it cannot invoke its powers under Order VIII, rule 11, C.P.C. because there is no failure to comply with any definitive direction."
' In Mst.Parveen v. Mst. Jamsheda Begum and another PLD 1983 SC 227, the august Supreme Court has also made similar observations. 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 under valued, 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 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 that matter clause (a) or (d) of rule 11 (after the period of limitation) for the reasons 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. Section 3 of the Limitation Act, whereunder a suit can be dismissed, applies only if it is instituted after the period of limitation. it is not the case of the appellant that was visualized by the explanation to section 3 of the Limitation Act, the plaint was presented, not to the proper Officer, or after the expiry of limitation. And if it was presented properly before a proper Officer prior to the expiry of period of limitation then the relevant provision for consideration would be Order VII, rule 11, section 149 and in some cases section 148, C.P.C. as also section 10(ii) of the Court Fees Act, whereunder a suit can be dismissed for non-compliance with the order of the Court for supply of the requisite fee and not on the ground that for the some reasons it had become time-barred. The two considerations would be totally different."
' This view has been reiterated in Shahna Khan v. Aulia Khan and another PLD 1984 SC 157 and Siddiq Khan and 2 others v. Abdul Shakoor Khan and another PLD 1984 SC 289.
' Conflict in the judicial opinion in regard to matter of court-fee has now been finally set at rest by these weighty pronouncements of the august Supreme Court of Pakistan. Now it is a settled law that a plaint cannot be rejected unless first the amount of court-fee payable is determined by the Court and at least one opportunity is afforded to the plaintiff to make good the deficiency failing which the plaint is liable to rejection under Order VII, rule 11, on account of any deficiency in court- fee. in the case under consideration the deficiency if any has been made good by the plaintiff long before the defendant raised the objection through a miscellaneous petition under Order VII, rule 11, C.P.C. Learned trial Judge, therefore, rightly turned down the petition. Learned Additional District Judge relying on certain precedents force whereof had considerably been weakened by the pronouncements of the Supreme Court, ordered rejection of the plaint. In the absence of proper plea covering the question of deficiency in court-fee in the written statement and an issue, the conduct of the plaintiff could not have been described as negligent or contumacious. The learned Additional District Judge has absolutely lost sight of the fact that the court-fee stamps were already on file and the defendant did not raise any objection to their placement on the file of the Court at the opportune time. It means he accepted the deficiency being made good. After the plaintiff had made up the deficiency, it revalidated the plaint from the date it was presented in Court, leaving no objection outstanding for the defendant to subsequently turn around and pray for rejection of the plaint on this score. Learned Additional District Judge, therefore, on an improper view of the circumstances and in obvious disregard of the later pronouncements of the Supreme Court, has passed an order rejecting the plaint which obviously cannot be sustained. For the reasons stated above, the writ petition is allowed impugned order dated 3-3-1984 passed by the learned Additional District Judge, Kasur is set aside and declared to have been passed without lawful authority. The necessary result of the above-stated declaration by this Court is that the learned trial Judge will now proceed from the stage when the order dated 25-3-1981 was passed by him and decide the suit on merits after recording the remaining evidence. No order as to costs.
Record be sent/ down to the trial Court immediately to enable it to proceed further.