' Briefly stated the facts are as follows:- ' Ghulam Muhammad s/o Khan Muhammad on 30-5-1973 filed a suit for possession against Abdul Khaliq and Abdul Majid to pre-empt a sale in their favour by Ghulam Mustafa vide registered deed dated 1-6-1972.
2. Defendant, resisted the suit. The learned Civil Judge, Khanpur, District Rahimyar Khan vide judgment and decree dated 24-10-1983 dismissed the suit. Ghulam Muhammad plaintiff challenged the said decree before the learned Additional District Judge-III, Rahimyar Khan who vide his judgment and decree dated 5-6-1985 accepted the appeal, decreed the suit of Ghulam Muhammad on payment of Rs.13,750. A direction to make up the deficiency of Rs.31 in the court-fee was also given. Hence this R.S.A. No.64 of 1985.
3. Learned counsel for defendants-petitioners has addressed arguments only on issues Nos. 3 and 7 before me. It is contended by the learned counsel for the defendants that the plaintiff was estopped by his words and conduct to bring the present suit and secondly that the plaint at the time of its presentation in the Court of learned Civil Judge being under-stamped, the suit of Ghulam Muhammad was barred by limitation. Learned counsel for plaintiff-respondents controverted the above contentions.
4. I have considered the above respective contentions on behalf of the parties. In support of the plea that the plaintiff waived his right of pre-emption the defendants-petitioners examined D.W.1 Asharf Din and D.W. 2 Rahim Bakhsh. It was stated by Ashraf Din D.W.1 that a contact was established with Ghulam Muhammad plaintiff offering him the land but he refused to purchase the same saying that it was of an inferior quality and salinity affected. Rahim Bakhsh D.W.2 also made similar statement. I am not inclined to place any reliance on the statements of these 2 witnesses because their evidence is not in line with the pleadings in the written statement. It was stated by Abdul Khaliq etc. Defendants-petitioners in para 8 of the preliminary objections in the written statement dated 11-10-1980 that plaintiff had executed in writing giving up his right of pre-emption and as such the suit was liable to be dismissed. The two witnesses mentioned above have not referred to the said writing. The defendants have not produced the writing mentioned by them in para 8 of the preliminary objections. As such, no oral evidence could be led in support of the said writing. Moreover, it is also not stated by the defendants or the above two witnesses as to what precise offer was made to the plaintiffs before the bargain in question was struck. They have also not mentioned the total land offered to be sold to the plaintiffs or the price for which the said offer was made. In my view, both the Courts below rightly decided issue No.3 against the defendants- petitioners.
5. Ghulam Muhammad plaintiff filed suit on 30-5-1973. He affixed only one rupee court-fee stamp on the plaint. It was stated in para 7 of the plaint that the revenue papers were not available and that the deficiency in court-fee would be made up. The learned Civil Judge on 11-5-1973 directed the plaintiff to make up the deficiency in court-fee by 12-6-1973. The suit came up for hearing before the learned Civil Judge on 12-6-1973. It was noted that court-fee stamps of Rs.136 has been filed. The Court's Reader was directed to check the Goshwara, Naqsha Jhar Paidawar, copy of Khasra Girdawari and the rates with a direction to report as to whether the deficiency has been correctly made up or not. The suit was adjourned to 14-7-1973 for which date the defendants were also summoned to put in appearance. On 14-7-1973 ex parte proceedings were ordered against defendant No.1. Fresh summons were ordered to be issued to defendant No.2. It was noticed that 1/5th of pre-emption money has already been deposited. The suit was adjourned to 24-11-1973. A perusal of the interim orders recorded by learned Trial Judge would show that there was no order indicating as to whether the court-fee had been correctly made up or not nor is there any order to show that the Court's Reader complied with the Interim order dated 12-6-1973. The written statement was filed on 11-10-1980 i.e. After more than 7 years after passing of the orders dated 31- 5-1973 and 12-6-1973 but in spite of that no objection regarding the correctness of Naqsha Jhar Paidawar, Goshwara or Khasra Girdawari was taken. It was not pleaded by the defendants- petitioners that the plaintiff failed to comply with the order of the Court dated 31-5-1973. It was for the first time during final arguments in the suit that an objection regarding insufficiency of the court-fee was taken by the defendants. Learned Civil Judge accepted the contention on behalf of the defendants and rejected the plaint under Order VII, rule 11, C.P.C. Being insufficiently stamped.
The learned Additional District Judge, Rahimyar Khan set aside the findings of the learned Civil Judge under issue No.7 and came to the conclusion that the plaintiff could not be made to suffer by the act of the Court.
6. A perusal of above narration of the facts would show that the plaintiff-respondent did file Naqsha Jhar Paidawar alongwith the Goshwara and made up deficiency in the court-fee in compliance with the order of the Court dated 31-5-1973. The learned Civil Judge directed the Reader of his Court to check up the revenue papers and report about correctness of the court-fee.
This report was never submitted by the reader of the Court. The learned Civil Judge also does not seem to have adverted to this question till the final hearing of the suit. It was contended on behalf of respondents firstly that the value of suit for purposes of court-fee was assessed in Jhar Paidawar at the rate of 50$ share of the tenant though in fact it was 40/60%. Secondly that the calculation was made in the said document on the rates prescribed by the Provincial Government whereas the rate fixed by Central Government should have been taken into consideration. I need not enter into all these questions, because there was no order of learned Civil Judge after 12-6-1973 determining the precise amount of court-fee required to be affixed by the plaintiff. As held in 11am Din v. Abdul Majid 1986 SCMR 1439, it was a matter of rights of the plaintiff that the Court was to determine deficiency and afford at least one opportunity under Order VII, Rule 11, C.P.C. To the plaintiff to make up deficiency, if any. The order dated 12-6-1973 indicates that the learned Civil Judge was yet to determine the deficiency in court-fee, if any. This was never done till the final decision of the suit. As such, I am of the view that the learned Additional District Judge rightly set aside the findings of the learned Civil Judge under issue No.7 and directed the plaintiff to make up deficiency of Rs.31 in the court-fee on the plaint.
7. Learned counsel for the appellants submitted that plaintiff Ghulam Muhammad did not affix any court-fee on the memorandum of appeal filed before the learned Additional District Judge, Rahimyar Khan and as such the appeal should have been dismissed by the first Appellate Court. I find no merits in this argument because by the time Ghulam Muhammad plaintiff filed appeal in the District Court on 12-9-1984, the payment of court-fee on the valuation upto Rs.25,000 had been exempted. In view of above discussion, I find no merits in this appeal which is accordingly dismissed leaving the parties to bear their own costs.