' C.A. RAHMAN, J.--The appellants instituted a suit to pre-empt the sale of land measuring sixty Kanals and eleven Marlas situated in Chak No,96-G.B. Tehsil and District Toba Tek Singh, effected by Khan Muhammad for Rs,1,15,000 by means of registered sale-deed, dated 14-2-1979 in favour of the respondent. The appellants claimed superior right of pre-emption on the ground of relationship with the vendor inasmuch as Ruqayya Bibi appellant is the wife and the other. Appellants are the sons of the vendor. The suit was contested by the respondent on the ground that it had been instituted for the benefit of the vendor and that the appellants were estopped by their conduct to pre-empt the sale. The respondent also pleaded that the suit was barred by time, as the plaint was filed without payment of proper court-fee and that deficiency in the court-fee was made good after expiry of the period prescribed for institution of the suit. The learned trial Court framed the following issues for disposal of the suit:-
(1) Whether the suit is barred by the time in view of the preliminary objection No,1? O.P.D.;
(2) Whether the suit is collusive and for the benefit of vendor Khan Muhammad? O.P.D.;
(3) Whether the plaintiffs are estopped by their acts and conduct to file the suit? O.P.D.;
(4) Whether the plaintiffs have got the superior right of pre-emption as against the defendant- vendee? O.P.P. And
(5) Relief.
2. After recording evidence of the parties and considering the submission made by their counsel, the learned trial Court found that the suit was not barred by time, but at the time it was held that the appellants had not paid proper court-fee on the plaint and they were not entitled to any further opportunity to pay the deficient court-fee. The learned trial Court also found that the appellants' suit was collusive and that the same had been filed by them for the benefit of the vendor. The respondent's plea that the appellants were estopped by their conduct to pre-empt the sale was, however, not accepted by the learned trial Court. In view of the above findings under issues Nos.1 and 2, the appellants' suit was dismissed with costs on 22-1-1985. The judgment and decree of the learned trial Court have been challenged by the appellants by filing the present appeal.
3. Notice was issued to the respondent for preliminary hearing. We have today heard the learned counsel for the parties. Keeping in view the submissions made by learned counsel for the parties, we formally admit this appeal to regular hearing.
4. Learned counsel for the appellants has submitted that the learned trial Court was not required to determine valuation of the suit for purposes of court-fee and jurisdiction while deciding issue No,1 because the respondent's plea which gave rise to that issue was that the appellant's suit was barred by time as the deficiency in court-fee had been made good after expiry of the period prescribed for filing of the suit. The learned trial Court had repelled the above plea and found that the appellants' suit was within time notwithstanding the fact that the deficient court-fee was paid by them on a date when time for filing the pre-emption suit had expired. According to the learned counsel there was no occasion for the learned trial Court to go into the question of valuation of the suit and hold that the appellants' valuation of the suit based on the statement of annual net profits (Exh.P.2) was not correct and that the suit should have been valued on the basis of annual net profits statement (Exh.D.W.1/1).
5. We have examined the two statements of annual net profits referred to above and have found that Exh.D.W.1/1 is the correct statement of annual net profits, as it pertains to the crops sown in the suit land during the year next before the date of institution of the suit. The other statement of annual net profits Exh.P.2 pertains to the crops sown in the suit land during the year next before purchase of the land which is not relevant for determining the net profits for the purpose of payment of court-fee. Although the learned trial Court did not frame -ny specific issue dealing with valuation of the suit, there was r legai bar to examine valuation of the suit for the purpose of court- fee in view of the provisions of section 9 of the Court Fees Act, 1870. Even otherwise the respondent had questioned correctness of the valuation of the suit for the purpose of court-fee in paragraph 7 of the written statement. The learned trial Court was justified in determining the question of valuation of the suit especially when both the parties had placed evidence on record in support of their respective contentions. The annual net profits which had arisen out of the suit land during Rabi 1979 and Kharif 1979 were estimated at Rs,7,301.53 in the statement of annual net profits, Exh.D.W.1/1. On the basis of the said net profits, the value of the suit for purposes of court-fee was correctly determined as 1,09,522.95 by the learned trial Court.
6. The next submission made by learned counsel for the appellants is that after having determined the valuation of the suit for purpose of court-fee, the learned trial Court should have allowed at least one opportunity to the appellants to pay deficient court-fee in view of the rule laid down by the Supreme Court in Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC
289. Learned counsel for the respondent, on the other hand, has contended that the appellants had already availed of one opportunity when they were ordered by the learned trial Court to pay proper court-fee on the plaint after obtaining the statement of annual net profits from the concerned revenue official. Appellants' failure to obtain proper and correct statement of annual net profits and their omission to pay proper court-fee on the plaint within the time allowed by the Court could not be overlooked by the learned trial Court. They were not entitled to any further extension in time for payment of requisite court-fee.
7. After examining the record, we have noticed that on 2-1-1980 when the suit was registered, the learned trial Court directed the appellants to make up deficiency in court-fee on the basis of statement of annual net profits by 1-4-1980. There is no doubt that the appellants were allowed to pay the deficient court-fee on the plaint, but the valuation of the suit for purposes of court-fee was not determined by the Court while granting opportunity to the appellants to pay the requisite court-fee. The appellants were not informed as to what amount of court-fee was to be paid by them on the plaint. In the absence of determination of the valuation of the suit for purposes of court-fee neither the provisions of section 10(ii) of the Court Fees Act nor the provisions of Order. VII, Rule 11(c), C.P.C. Under which the plaint can be rejected for non-payment of proper court-fee are attracted. It has been rightly pointed out in Malik Jan Muhammad v. Shukaruddin and others 1980 CLC 186 that the Court is not legally competent to reject a plaint under Order VII, Rule 11, C.P.C. For non-payment of proper court-fee without first determining valuation of the suit for purposes of court-fee. Thus in view of the legal position noticed above order, dated 2-1-1980 of the learned trial Court calling upon the plaintiffs to make up deficiency in court-fee by 1-4-1980 cannot be construed as an order allowing them opportunity to pay the deficient court-fee so as to attract the provisions of section 10(ii) of the Court Fees Act- and Order VII, Rule 11(c), C.P.C. In the event of non- compliance of the above order. The legal requirement of allowing opportunity to the plaintiffs to make up deficiency in court-fee is met only when the Court has determined valuation of the suit for the purpose of court-fee. The view taken by the learned trial Court while deciding issue No,1 that the appellants' suit is liable to be dismissed for non-compliance o the Court's order regarding payment of deficient court-fee is not legally sustainable. The appellants are entitled to get opportunity to pay deficient court-fee on the valuation of the suit as determined by the learned trial Court.
8. Learned counsel for the appellant has also questioned the finding of the learned trial Court under issue No,2. He has stated that there is no reliable evidence on the record to show that expenses incurred on the institution of the pre-emption suit by the appellants have been met by Khan Muhammad. The bald statements made by Dilawar Khan D.W.4 and Rana Ghulam Sarwar D.W.6 that Khan Muhammad has provided necessary funds to the appellants for filing the suit are not sufficient to deprive the appellants of their legal right to pre-empt the sale of the disputed land.
The mere fact that the pre-emptor has been financed by some person would not prove that the suit instituted by him is Benami and that he is acting for the benefit of the other person.
9. We have gone through the oral evidence produced by the respondent in support of his contention that the appellants' suit is collusive and that it has been instituted for the benefit of the vendor i.e. Khan Muhammad. In our view, this evidence is hardly sufficient to prove the plea of collusion taken up by the respondent. This plea is even otherwise not available against the minor appellants. The fact that Mst. Ruqayya Bibi appellant happens to be the wife of the vendor does not lead to the inference that she has filed the suit for the benefit of her husband. There is no dependable evidence to prove that the expenses incurred by Mst. Ruqayya Bibi in filing the suit were borne by her husband. But even if it be assumed that Khan Muhammad has provided necessary funds to his wife, that by itself would not prove that the suit instituted by her and her minor sons is for the benefit of Khan Muhammad. Reference in this connection may be made to Lal Din v. Allah Ditta PLD 1967 Lah.
703. We accordingly reverse the finding of the learned trial Court under issue No,2 and hold that the appellants' suit is neither collusive nor for the benefit of Khan Muhammad.
For the foregoing reasons, we accept this appeal and set aside the judgment and decree, dated 22-1-1985 of the learned trial Court. The appellants are granted decree for possession through pre- emption of the suit land on payment of Rs,1,15,000 as purchase money. They shall deposit the amount of Rs,1,15,000 inclusive of Zar-e-Panjum in Court on or before 10-4-1986 failing which their suit shall stand dismissed with costs. The appellants shall also pay deficient court-fee on the valuation of the suit amounting to Rs,1,09,522.95 as determined by the learned trial Court. They shall further pay deficient court-fee on the memorandum of appeal on the basis of the above valuation.
The deficient court-fee on the plaint and memorandum of appeal, as directed above, shall be paid on or before 10-4-1986 otherwise their plaint or the memorandum of appeal, as the case may be, shall be deemed to have been rejected. In the event of decree, the appellants shall be entitled to the costs.