1. ' GUL ZARIN KIANI, J.--Suit property consisting of K.86 M-15 alongwith a share in tubewell was sold by Noor Nabi and others to Hafeez-ur-Rehman and Aziz-ur-Rehman for Rs,2,00,000 vide deed of sale registered on 9-1-1979. Muhammad Latif and others as owners of estate brought a suit for pre- emption on 3-1-1980 in the Court of Civil Judge Pakpattan Sherif. The suit was resisted by the vendees. Number of pleas were raised in defence which are clearly reflected. In issues framed by the trial Court on 21-5-1980. Plaintiffs applied to amend the plaint so as to include the share of tubewell in the claim set forth in the plaint. Application was resisted, but was allowed by the Court on 21-3-1981. Vendees also moved a petition for amendment in the written statement to add that the suit instituted by the preemptors was barred by limitation. Application was allowed by the Court and in the amended pleadings following additional issue was raised:-- 1-A. Whether the suit is barred by time ?
2. Court treated the aforesaid additional issue as preliminary and vide it judgment and decree, dated 18-5-1983 held that the suit was barred by time. Principal reason which pre-vailed with the trial Court was that the plaint when presented in the first instance was under-assessed and was also deficiently stamped. Vide statement of nett profits Exh. D.1, Court found that the plaint was deficiently stamped and court-fee of Rs,1,699 was still required to be paid. It may be noticed that Court did not find it proper to afford an opportunity to pre-emptors to make good the discovered deficit court-fee. Having failed before the trial Court, pre-emptors have appealed to this Court.
3. ' Learned counsel for the parties have been heard and with their assistance record has, also been examined. This appeal raises a short legal point, whether the Court after determination of the exact amount of court-fee eligible on plaint, could have dismissed the suit holding it barred by time, without affording an opportunity/time to the pre-emptors to pay the discovered deficiency. It is nobody's case that the suit when instituted was barred by limitation. Plea of limitation prevailed on the sole ground that the plaint was deficient in court-fee and the deficiency had not been provided within period of limitation prescribed for a pre-emption suit.
4. ' Luckily for us, the point raised is no longer res integra and is concluded by high authority of Supreme Court of Pakistan in Siddiq Khan's case in PLD 1984 SC 289. It is now well-settled proposition of law that without affording an opportunity to a party to make good the deficit court- fee, neither the plaint can be rejected under Rule 11 of Order VII, C.P.C. Nor the suit dismissed on ground of limitation. Learned counsel for the respondents was not in a position to dispute this proposition of law. However, he argued that first appeal before this Court was not competent and the same lay before the District Court. Argument pressed in aid was that the suit property was assessed to land revenue and 30 times of the land revenue assessed on the suit property would bring the appeal within the pecuniary jurisdiction of the District Court. Contention raised is not tenable for the obvious reason that the jurisdictional value given in the plaint, could not be unilaterally altered by the pre-emptors to choose forum of appeal for them. Reference with advantage could be made to Babu Khan Muhammad and others v. Dr. Abdul Gafoor and others PLD 1966 SC 461. It was not disputed before us that the Court below had not afforded opportunity to the pre-emptors to provide deficit court-fee. Facts, therefore, are not in dispute and the question raised is about the correct application of law only. As observed above, the Court after having found that the plaint was deficient in court-fee was bound to afford an opportunity/time to the pre- emptors to pay the deficit court-fee within a time to be fixed by it and without allowing such opportunity could not proceed to dismiss the suit on the bar of limitation. Parties have also not disputed the correctness of the determination of court-fee made by the trial Court. After hearing learned counsel, we find that the impugned judgment is not sustainable. Accordingly, we allow this appeal, set aside impugned judgment and decree, dated 18-5-1983 of learned Civil Judge, Pakpattan Sharif and direst the pre-emptors/ appellants to pay the deficit court-fee by or before 14-1-1986, and remit the case to the trial Court to proceed with decision on the remaining issues. If the deficit court-fee is not paid within the time fixed, the Court may proceed to pass an appropriate order under Order VII, Rule 11 of the. Code of Civil Procedure. In the circumstances, we make no order as to costs. Parties are directed to appear before the Court below on 5-1-1986.
5. Records be also sent down.