' Facts giving rise to this civil revision are that the petitioners, Mubarik Ali and others, filed a suit against the respondents, Gulzar Ahmad and another, for possession of certain land, through pre- emption. The said land was sold by one Abdul Hafeez in favour of the respondents. The petitioners claimed right of pre-emption on the ground that they were sons of the vendor. It was alleged by them that the land was sold, in fact, for Rs, 1,000 but the sale price was fictitiously shown as Rs, 4,000 in the relevant mutation with a view to defeating pre-emptive rights. The suit was resisted by the respondents inter alia on the ground that it was time-barred and under-valued. It was also denied by them that the petitioners had superior right of pre-emption. Plea of estoppel too was raised by them. In regard to the sale price, it was maintained by the respondents that the sale had actually taken place for Rs, 4,000.
2. Following issues were framed by the Civil Judge who was seized of suit :-
(1) Whether the suit is time-barred ?
(2) Whether the suit has been correctly valued for the purposes of court-fee and jurisdiction. If not, what is the correct valuation ?
(3) Whether the plaintiffs are estopped to bring the present suit by their conduct ?
(4) Whether the plaintiffs have got superior right of pre-emption than the defendant-vendee ?
(5) Whether the ostensible sale price of Rs, 4,000 was fixed in good faith or actually paid as the price of the suit land, if not what was market value of the suit land at the time of its sale ?
(6) Relief.
3. Learned Civil Judge decided issues Nos. 1, 3 and 4 in favour of the petitioners. He did not record any -finding on issue No, 5 as it was admitted by the petitioners that the land was actually sold for Rs, 4,000. Issue No, 2 was decided against the plaintiffs and in view of finding recorded thereon the suit was dismissed. The petitioners went in appeal before an Additional District Judge but he also upheld the finding of the learned Civil Judge on issue No,
2. The appeal was, accordingly, dismissed. The petitioners have, therefore, come up in revision to this Court.
4. Learned Civil Judge decided issue No, 2 against the petitioners for the following reasons "The onus of issue No, 2 was on the plaintiffs but no evidence has been produced by them to prove that suit was correctly valued for the purposes of court-fee and jurisdiction at the time of institution. From the perusal of the file it will be found that suit was instituted on 20-12-1972 with a court-fee of Re.
1. On 3-6-1975 1. e. After about 2i years the plaintiffs filed court-fee stamps worth Rs, 41 making up the deficiency in requisite court-fee. This is apparently proved that at the time of institution the suit was not correctly valued for the purposes of court-fee and jurisdiction. It has been pointed out and which I have ascertained from the order sheet that on 21-12-1972 the plaintiffs were directed to get prepared the net profits statement and make up the deficiency in court-fee before 6-2-1973. The plaintiffs did not comply with the said orders and remained silent for about 2i years. In the meantime the issue in this regard was also framed on 11-4-1973 but even then the plaintiffs remained indifferent to the direction of the Court. The onus of this issue was also on the plaintiffs but they did not bother to adduce any evidence. After a number of adjournments the case became ripe for final arguments. It was then that the plaintiffs of their own will and accord filed the court-fee stamps worth Rs, 41 on 3-6-1975. They did not deem it necessary to get any extension from the Court in this regard or any permission to file the deficiency in court-fee, The behaviour of the plaintiffs in this respect remained contumacious throughout. Since no extension was ever applied for by the plaintiffs or granted by the Court, it will be presumed that the suit of the plaintiffs became complete on 3-6-1975 when they filed the deficiency in court-fee on their own accord which has rendered the suit time-barred. 1 am of the opinion that on this ground the suit is liable to be dismissed and the plaint is also liable to be rejected. Decided accordingly."
' This reasoning was approved of by the learned Additional District Judge while dismissing the petitioners' appeal.
5. It was contended by learned counsel for the petitioners that the learned Civil Judge did not determine the exact amount of deficiency in court-fee before requiring the petitioners to make good the deficiency and, therefore, the petitioners could not be non-suited for not complying with the direction of the learned trial Court in the matter. In this connection, reliance was placed by him on 11am Din and another v. Abdul Majid and 2 others (1).
6. On the other hand, it was urged by learned counsel for the respondents that the petitioners were directed by the learned trial Court to obtain statement of net profits and make up the deficiency in court-fee before 6th February, ,1973 but as they did not do the needful before that date, their plaint deserved to be rejected. He relied on Muhammad Hussain v. Muhammad Amir and another (2) to support his argument.
7. The case of Muhammad Hussain, which was decided by me is distinguishable on facts. In that case by the time of rejection of plaint in his suit, the plaintiff did not furnish the statement of net profits despite the direction of the learned trial Court in this regard, and, therefore, they were non- suited. In the instant case, however, the petitioners did file the statement of net profits and also made good the deficiency in court-fee before their' suit was dismissed. Moreover, in the case of 11am Din and another, which was decided by the Supreme Court after the disposal of the above case by me, it was observed by the Supreme Court that "the question of limitation does not arise with reference to proceedings on question of court-fee under. Order VII, rule 11, and that it is as a matter of right that in case of deficient court-fee the Court is to determine the deficiency and afford at least one opportunity under the said provision to the plaintiff to make up the deficiency."
This means that a plaint cannot be rejected without B determining the precise amount of deficiency and requiring the plaintiff to make good the same.
8. Undoubtedly, in the instant case exact amount of deficiency was not worked out by the learned trial Court at any stage of the proceedings. Plaint could, therefore, not be rejected by it on the ground that the petitioners had not complied with the direction given by the learned trial Court, in general terms, in regard to the payment of the proper court-fee by 6th February, 1973 after filing the statement of net profits. It is not the case of the respondents that despite the payment of additional court-fee by the petitioners before the dismissal of their suit, the court-fee was deficient.
The petitioners were entitled to at least one opportunity for making good the deficiency in court- fee after it had been determined with exactitude, but since it. Was not so determined nor the said opportunity was afforded to the petitioners after the determination thereof the petitioners could not be non-suited for non-payment of proper court-fee at the time of tiling of the suit or before the date by which the petitioner {{FOOT NOTE}}
(1) 1986 SCMR 1439 (2) 1984 CLC 1469 {{FOOT NOTE}} were directed to make good the deficiency in court-fee after obtaining the statement of net profits.
9. View taken by the learned Civil Judge that the suit had become time-barred for non-payment of the court-fee in time cannot be accepted because it is contrary to the law laid down by the Supreme Court in the said case of Ram Din and another and in the cases of Mst. Parveen v. Mst. E Jamsheda Begum and another (1), Shahna Khan v. Aulia Khan etc. (2) and Siddique Khan and 2 others v. Abdul Shakur Khan and another (3). It was ruled in the said cases that if a suit is brought within time it cannot be dismissed on the ground of limitation for the reason that proper court-fee was not paid within the period of limitation prescribed for filing the suit.
10. In result, I hold that since the precise amount of deficiency was not determined by the learned trial Court nor an opportunity was afforded to the petitioners to make up the deficiency so determined, neither the plaint could be rejected under Order VII, rule 11 of the Code of Civil Procedure nor the suit could be dismissed on the ground of limitation. Finding of the learned trial Court on issue No, 2 is, therefore, reversed and the issue decided in favour of the petitioners.
11. As indicated at the outset, the petitioners were non-suited due to their failure on issue No, 2, which was in respect of court-fee. Now, since that issue has been decided in their favour, their suit deserves to be decreed on payment of Rs, 4,000.
12. Accordingly, I accept this civil revision, set aside the judgments and decrees of the learned lower Courts and decree the petitioners' suit on payment of Rs, 4,000. The petitioners (plaintiffs) shall deposit the said amount less the amount already deposited by them in Court on or before 30th April, 1987 failing which their suit shall stand dismissed. In either event, the parties shall bear their own costs throughout. {{FOOT NOTE}}
(1) PLD 1983 SC 227 (2) PLD 1984 SC 157
(3) PLD 1984 SC 289 {{FOOT NOTE}}