1. ' This civil revision arises out of a pre-emption matter. Land measuring 3 Marlas part of Khasra No.2464/1847 Khewat No.35, Khatauni No.134 situated in the Revenue estate Theeng Jattan, Tehsil Chunian, District Kasur, was alienated by one Khuda Bakhsh in favour of Muhammad Shafi son of Khushi Muhammad through Registered Sale Deed, dated 22-12-1977 for ostensible consideration of Rs.4,500.This sale was subjected to a pre-emption suit by two sets of plaintiffs.Rehmat Ali claiming to be the real nephew of vendor instituted a suit for pre-emption on 2-1-1978. Sana Ullah and Muhammad Ashraf sons of Khushi Muhammad through a separate suit claimed superior right of pre-emption, being owner of the estate. Both these suits were instituted before Civil Court at Chunian. It is stated that the petitioner has firstly contended that the plaint in Rehmat Ali's suit was grossly under-assessed for the purposes of court-fee. The land purchased through Registered Sale-Deed, dated 22-12-1977, as the sale-deed itself shows, was not under-cultivation and thus yielded no net profits in the year preceding the presentation of the plaint. The plaintiff did not file Annual Statement of Net Profits either. The assessment for the purposes of court-fee was made at random and was a result of just a guess work of the plaintiff. Defendant-vendee seriously objected to the assessm ent so made in the plaint. This objection was reflected in issue No.4 framed by the trial Court. Onus of proof of this issue was placed on parties. Learned counsel contended that the trial Court committed an error of law in finding issue No.4 in affirmative. A bare reading of the Sale Deed revealed that it was a plot of land sold for sikni purposes. It was the duty of the plaintiff to produce statement of Annual Net Profits failing which he was bound to assess the plaint for purpose of court-fee on the market value of the land which in this case would be Rs.4,500, the sale price mentioned in the Registered Sale Deed.Courts below, therefore, have not seriously adverted to the question of deficiency in court-fee. Since the plaint was under assessed and was deficiently stamped it was no plaint in the eye of law. The suit becomes legally instituted when a proper plaint bearing requisite court-fee stamps is presented to Court/ officer competent to receive it. The trial Court, therefore, acted in irregular exercise of its jurisdiction in proceeding with a suit on a plaint, grossly deficiently stamped. Learned counsel submits that in the absence of any material having been brought before the Court to assist it for proper determination of the question of court-fee, the court could and should have taken resort to provisions of section 9 of the Court Fee Act and appointed a local Commissioner to ascertain the market value of the land subject-matter of pre- emption suit. Pre-emptor was not entitled to any indulgence in this behalf and his plaint merited rejection on the sole ground of deficiency in court-fee. Learned counsel for the respondent, however, contended that though the objection was raised by the defendant-vendee in his written statement yet he did not produce an iota of evidence to strengthen his objection. In this view of the matter, the trial Court was justified in answering issue No.4 in affirmative in favour of the plaintiff pre-emptor. It has also been con tended by him that the vendee filed the appeal and stamped it with the same amount of court-fee which had been levied upon the plaint by pre-emptor. In this view of the matter it is stated by him that he adopted the assessment and was estopped to question it thereafter. He also contended that the plaint could not be rejected under Order VII, rule 11, clauses (b) and (c) of Code of Civil Procedure unless the amount of court-fee was first determined by the Court and a direction was given to the plaintiff to make good the deficiency in pursuance to such determination. Without affording at least one opportunity to the plaintiff/pre- emptor, his plaint could not be rejected. Reliance was placed on the case Mst. Parveen v. Mst.
2. Jamsheda Begum and another PLD 1983 SC 227 and Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289.
4. Learned counsel for the petitioner next contended that the property purchased by him through Registered Sale-Deed, dated 22-12-1977 had acquired urban character and was thus not pre- emptible in the absence of custom under section 16 of the Punjab Pre-emption Act, 1913. He placed reliance upon Allah Bakhsh v. Ilahi Bakhsh and 3 others PLD 1975 Lah.
3. 359.
4. ' Learned counsel for the respondent, however, seriously controverted this proposition. Learned counsel submitted that in the absence of a specific objection in the written statement, no amount of evidence produced can be considered unless a fact is pleaded specifically, evidence in support thereof cannot be adduced. He further contended that there is no evidence on file except the bare statement of the defendant/vendee to show that the property was urban in nature. Copies of the statements of witnesses and documents exhibited before the trial Court have not been placed on file. Learned counsel for the petitioner, however, placed original registered Sale-Deed, dated 22-12- 1977 and unattested copies of statements of P.W.1, a village Patwari P.W.2 Ali Muhammad son of Jiwan and Rehmat Ali, plaintiff. He has not placed the copy of the statement of the defendant/vendee before me.
5. ' As regards the assessm ent of the plaint for purposes of court-fee, both the Courts below have answered the issue in favour of the plaintiff/ pre-emptor. Vendee in appeal adopted the assessm ent made by the plaintiff in his plaint. The suit was instituted on 2-1-1978, before any exemption in regard to court-fee up-to the limit of Rs.25,000 was granted by law. The trial Court in view of its findings on issue No.4 did not determine the precise amount of court-fee leviable upon the plaint. Learned Additional District Judge observed:- "There is no evidence on the record as about issue No.4 and thus the same cannot be discussed.
6. The findings of the learned trial Court on issue No.4 cannot be upset."
7. ' Learned Additional District Judge endorsed the decision of the trial Court on issue No.4. In such circumstances, the objection of the petitioner's learned counsel carries no legal weight. However, the copy of the sale-deed when read with the statement of a village Patwari P.W.1 (copy placed on file) does indicate that the land is described as Ghair Mumkin Abadi from the year 1977 to the year 1979. In the presence of this evidence available on file I feel that the finding recorded on issue No.4 by the trial Court and affirmed by the learned Additional District Judge was erroneous. This conclusion however does not advance the case of the petitioner to any appreciable extent. It has been now authoritatively settled that the plaint cannot be rejected unless th Court first determines the amount of court-fee payable, gives a direction to the plaintiff in case of deficiency to make it up, and then if he fails, to reject the plaint. In the case under consideration, there is no finding of negligence or contumacy on behalf of the plaintiff/petitioner. Court Fee Act was enacted for the purpose of securing revenue for the State and is not meant to arm a litigant to use it as a weapon of B. offence against his adversary to knock him out of the field on account of shortfall in payment of court-fee. Learned counsel for the respondent has frankly agreed that if the Court comes to the conclusion that there was any deficiency in court-fee which had to be calculated on the market value as shown in the deed, the plaintiff-pre-emptor who had succeeded on merits in both the Courts below would unhesitatingly make good the deficiency to save his title under the decrees of the Courts below. As stated above, the plaintiff did not file annual statement of net profits alongwith the plaint or during the trial of the suit. Defendant also did not adduce any evidence on this point. Court also did not invoke provisions of sections 9 and 10 of the Court Fee Act for finding out net profits or the market value of the land subject-matter of pre-emption suit. Taking note of the statement of a village Patwari who was produced as P.W.1 by the plaintiff/pre-emptor and the contents of the Registered Sale-Deed placed on file today, I feel no hesitation in saying that issue No.4 was not correctly decided by the Court below. In the absence of annual statement of net profits, the court-fee had to be paid on the market value which in this case can be safely taken to be Rs.4,500, the amount mentioned as the sale price of the suit property. In this view of the matter, the amount of court-fee payable on the plaint reckoned on the market value comes to Rs.338. He has already affixed a court-fee stamp of Rs.6 on the plaint. Acting under section 12 of the Court Fee Act I direct the respondent/plaintiff to make good the deficiency by or before 19-10-1984.
8. ' As regards the character of the property, the defendant/vendee did not specifically state in the written statement that the property purchased by him was urban immovable property. He contented himself by stating that the property had been included in Abadi which was not equivalent to saying that it was urban immovable property. In the absence of a specific plea in the written statement such a point cannot be allowed to be raised. Issue raised related to the averments made in the written statement only. The vendee did not bring sufficient evidence C on record to prove that the land purchased by him was either situated within a town or had acquired urban character being the suburb of a town. Annexure "A", the telephone directory was not produced in evidence before the trial Court. Be that as it may the alleged extension of this facility is not a conclusive factor to show that the land had acquired urban status. No notification under section 8 of the Punjab Pre-emption act has been issued by Board of. Revenue to declare the area wherein the land is situated to be a town for purposes of Punjab Pre-emption Act. The property if not agricultural is village immovable property and is clearly amenable to law of pre-emption. Case of Allah Bakhsh v. Elahi Bakhsh and 3 others PLD 1975 Lah . 359 clearly proceeds on distinguishable facts. As the report indicates, the disputed land was situated. in the city of Multan and in that context the learned Judge of this Court, after examination of the various pronouncements of the superior Courts made the observations relied upon by the petitioner. Rule of Law enunciated in the precedent above noted cannot be applied in a vacuum. After all before the application of law, a foundation of facts for its application has to be laid by a party invoking the said rule of law in its support. In the case under consideration, there is no credible evidence to show that the said land was urban immovable property and was thus not pre-emptible property. I see no merit in the contention raised on this score. In view of what has gone above, Civil Revision is accepted, decision recorded on issue No.4 by Courts below is reversed. Findings on the remaining issues are maintained. The plaintiff is directed to make good the deficiency in court-fee for a sum of Rs.332 by or before 19-10-1984 failipg which his plaint shall be liable to rejection. In the circumstances of the case, parties are directed to bear their own costs.