' The land in suit measuring 53 Kanals and 7 Marlas situated in village Kalowal, Tehsil Shorkot, District Jhang was sold by Nawab through Mutation No. 508, dated 8-12-1967 in favour of the respondents. A suit for possession through pre-emption of the same was filed by the appellants on 28-11-1968 alleging that their right of pre-emption was superior as they were collaterals of the vendors, co-sharers in the land and owners in the estate. The land was sold for an ostensible price of Rs.19,000 but the pre-emptors alleged that Rs.72 were in fact paid as price of the land. The suit was valued by them at Rs.75 on the basis of 15 times the net profits. When the plaint was scrutinised it was found that the statement of net profits had to be got prepared by the appellants for the valuation and for the payment of proper court fee. On 29-11-1968 summons to the respondents/defendants were ordered to be issued for 9-1-1969 alongwith an order that 1/5th of pre-emption money may be paid before the said date. The appellants put in an application for getting the statement of net profits prepared on 2-12-1968 and, after payment of the requisite fee therefor, an order was issued to the concerned revenue officials to prepare and send the said statement before 9-1-1969. However, the said statement, which was prepared on 27-12-1968, was received after that date but much before 24-2-1969, the date to which the case was adjourned on 9-1-1969 for resummoning the respondents. When the case was taken up on 24-2-1969 it was, on the basis of the said statement of net profits, found that a deficiency of Rs.76.51 in court fee had to be made up. The appellants were, therefore, given an opportunity, according to law, to make good the said deficiency in court fee before 1-4-1969. When the case came up for hearing on 1-4-1969 it was found that the said deficiency had not been made good. No application, oral or written was made for further extension of time and the plaint was consequently rejected by the learned Administrative Civil Judge, Jhang under Order VII, Rule 11, C.P.C. Vide order dated 1-4-1969. An appeal was filed which was dismissed by the learned Additional District Judge, Jhang vide order dated 31-7-1969. This regular second appeal was filed against the said appellate order. I have perused the record and have heard the arguments advanced by both learned counsel for the parties.
2. The said first appeal was filed on 10-5-1969 and it was alleged therein that the appellants had paid Rs.
76.51 to the Clerk of their counsel to purchase the requisite stamp paper for making good the deficiency in court-fee and that the stamp paper was actually purchased on 27-9-1969 and after completing the written formalities thereon it was retained for filing in the Court but on that date a relative of the said Clerk died during Shia-Sunni disturbances and the requisite court-fee could not be filed in the Court within time. It was further alleged that when the case was taken up by the learned trial Court on 1-4-1969 the appellants and their counsel assured the learned trial Court that stamp paper had been purchased and the requisite writing thereon had been completed and, therefore, time for extension of the court-fee may be extended but the Court wrongfully did not take the request into consideration. Alongwith the appeal an affidavit of Muhammad Saeed Akhtar Subhani, Clerk of the counsel for the appellants was also filed. The facts alleged in the memorandum of appeal were repeated therein. Learned counsel for the appellants before the learned lower Court was Mehr Muhammad Kabir Khan, Advocate and he remained their counsel in the First Appellate Court. He filed his own affidavit on 31-7-1969, the date on which the first appeal was to be decided, and after repeating the said facts he added that he had completed the papers relating to the making up of deficiency in court-fee on 27-3-1969. A counter affidavit was filed by Sher Behadur, Guardian ad litem of respondent No.2 on the same date, i.e., 31-7-1969, controverting all the allegations of the appellants and further alleging that there was no Shia-Sunni agitation on 27-3-1969 and that no relative of Muhammad Saeed Akhtar Subhani, clerk of learned counsel for the appellants was killed in the same which took place a day earlier. The learned First Appellate Court heard the parties at length and came to the conclusion that the allegations made by the appellants were false. It is significant to mention that before the learned First Appellate Court the learned counsel for both the parties admitted that no Shia-Sunni riots took place on 27-3-1969 and that the same in fact took place on 26-3-1969 and it was, therefore, held that the affidavit of Muhammad Saeed Akhtar Subhani was "on the face of it incorrect". It may be pertinent to mention here that no death certificate of any such relative of Muhammad Saeed Akhtar Subhani was filed at any stage. The learned counsel for the appellants, in the two Courts below, also filed an affidavit dated 22-9-1969 before this Court making a small improvement that although the stamp paper was purchased and completed on 27-3-1969 the same could not be presented before the learned trial Court due to unavoidable circumstances. In the said affidavit the valuation of the stamp paper was wrongly mentioned as Rs.75 although the deficiency required to be made up was Rs.76.51 and in fact the alleged stamp paper for making good the deficiency, which was placed on the record of the First Appellate Court, was of the value of Rs.
75.50.
3. The question of fact relating to the purchase of the stamp paper within time and the cause on account of which the same could not allegedly be filed are of prime importance. I have mentioned above that the learned additional District Judge who decided the appeal made it clear in his judgment dated 31-7-1969 that there were no Shia-Sunni riots in Jhang on 27-3-1969 and this too was not only his own observation but was also the agreed admission of the learned counsel for both the parties. Therefore, the story that the riots took place on 27-3-1969 is absolutely false. The case of the appellants is built up on that story and, therefore, the story not only about the riots but also in regard to the killing of a relative of Muhammad Saeed Akhtar Subhani the Clerk of the counsel for the appellants on that day is a mere concoction and as such the said story has no legs to stand upon. Apart from that if there were riots on 27-3-1969 the stamp paper itself could not be purchased on that date; but when it had been purchased and the requisite writing thereon completed and the same had been signed, there was absolutely no reason that the same could not be filed in the learned trial Court on that very day. Even if the relative of the clerk A had been killed on that day the learned counsel for the appellants himself would have taken the stamp paper and would have filed the same in the Court on that very day or at the most on the next day or even till up to 31-7-1969, the last date for making good the deficiency in the court-fee. This was not done merely because the allegations made by the appellants in the grounds of the appeal before the learned First Appellate Court are absolutely false. Again, it is difficult to believe the allegation of the appellants that the fact relating to the purchase of the stamp paper on 27-3-1969 was brought to the notice of the learned trial Court, or that there was a request for extension of time. If it had been done so the learned trial Court would have taken note of it and would have mentioned it in its order dated 1-4-1969. Apart from that if the learned counsel for the appellants were to request for extension of time he would have filed written application before the learned trial Court on 1-4-1969 as it is known to the lawyers that getting an extension in time is not a matter of course but on the other hand the extension can be granted on cogent grounds which are taken to be sufficient by the Court and not otherwise. Therefore, it is clear B that no request whatsoever was made by the learned counsel for the appellants (in the lower Court) for extension of time. In fact the question of extension of time in the alleged circumstances could be only technical and the learned counsel could very easily inform the Court that the stamp paper had been purchased but was somewhere else and could be presented on any other day. No such thing was done because by that time there was no intention of seeking extension in time and of course no stamp paper by that time had been purchased. In these circumstances it is absolutely false that the stamp paper had been purchased and completed on 27-3-1969 and similarly it is absolutely incorrect that there were any riots on 27-3-1969 or that any such near relative of Muhammad Saeed Akhtar Subhani had died that he could be kept away from the Court even on 1-4-1969. Therefore, in view of decision of this question of fact the appeal of the appellants has to fail.
4. Learned counsel for the appellants has argued that the affidavits of Mehr Muhammad Kabir Khan Advocate who was counsel for the appellants in the two Courts below carry a weight and the same should be believed without secrutiny. This argument cannot hold the ground because when we are dealing with a question of fact it has to be proved as a question of fact and the status of a witness, how highsoever he may be, does not become privileged because of the lower status of the opposite party. Therefore, the affidavit of the said counsel which is sufficiently rebutted by the counter affidavit of Sher Bahadur the Guardian-ad-litem of respondent No.2 carries no presumption of truth or extra weight. The affidavit of the said counsel is not reliable also because the finding of the learned Additional District Judge, based on the admission of the parties that the riots took place on 26-3-1969 and not on 27-3-1969, carries more weight and in fact a presumption of truth. In reality the orders of the learned two Courts below dated 1-4-1969 and 31-7-1969 suffice to disprove the allegations of the appellants and the affidavits filed by the learned counsel (before the learned trial Court) and his Clerk. It will be too much to disbelieve a Court and in this case to disbelieve the two Courts only because of an Advocate has filed an affidavit. As already mentioned above the evidence of an Advocate is to be weighed and adjudged as the evidence of any other person and there is no privileged sanctity attached to the affidavit of an Advocate especially when the same is refuted by a like affidavit by the opposite party and certainly when the same is falsified by the observation of the Court concerned.
5. The learned counsel for the respondents has referred to Ghulam Muhammad v. Malik Abdul Qadir Khan PLD 1983 SC 68 to press that if a fact or ground is not noted in the judgment of a Court it has to be taken that the same was given up or not pressed. The law laid down therein applies to the present case on all fours. Learned counsel for the appellants did not apprise the learned trial Court that, as alleged, the stamp paper had been purchased on 27-3-1969 as the order of the said Court dated 1-4-1969 carries no mention of any such information or any request for extension of time. Therefore, it has to be taken and it is so proved that no such information was given to the learned trial Court and no such request was made.
6. Learned counsel for the appellants has referred to Siddique Khan and 2 others v. Abdul Shakoor Khan and another PLD 1984 SC 289 and has urged that as laid down therein the fiscal laws are to be interpretted in favour of the person who is likely to suffer by the interpretation which could be made against him and that the purpose of fiscal laws is to provide revenue to the Government and the subjects should not be non-suited for a default if ultimately that is made good and the requisite revenue reaches the Government. Learned counsel for the respondents has also relied on the same ruling of the Honourable Supreme Court. This in fact is the leading case on the point.
Before applying the law laid down therein a brief history of law on the point specifically relating to pre-emption suits need be given. The right of pre-emption used to be taken to be a weak right, piratical right and predatory right and the like and on that account whenever there was a fault, big or small, and some time without going into the fact as to whether the same was for avoidable or unavoidable reasons, the suit of a pre-emptor was thrown down. The dictum given by the Honourable Supreme Court in the said judgment has undone the said prejudice against a pre- emptor. In fact when there is a right which is legally enforcible then it is a right like another right and cannot be defeated on any such weak ground on which another legal right could not be defeated. Therefore, it has been held therein that such a right is not a weak, a piratical or a predatory right and it has to be adjudicated upon just in the same manner as is the case, with any other legal right. Similarly, it has been held that as is done in other cases, even in pre-emption cases one opportunity for making good the deficiency in court-fee must be given. It has also been held that the making good of the deficiency in court fee beyond the period of one year of limitation prescribed for filing a suit for pre-emption does not make any difference and cannot result in dismissal of such a suit as time-barred and for that matter time for making good the deficiency in the court-fee cannot be refused on the ground that when the same is made good the suit will become time-barred. The question of limitation, it may be mentioned, is not involved in the present case. The dictum of the Honourable Supreme Court, therefore, has set aside the previous notion that the right of pre-emption may be defeated whenever any lapse is made by a pre-emptor. This is a significant change in the history of suits for pre-emption. However, it may be pertinent to, note that the law laid down therein has provided for equal treatment of the right of pre-emption with any other legal right and has not at all provided for any preferential treatment for it has compared to any other legal right. The right of pre-emption is a statutory right created by the Punjab Pre- emption Act, 1913. There are circumstances, provided in the Act itself and elsewhere under which right of a pre-emptor can be legally defeated e.g., a pre-emptor may alienate or otherwise lose his property on the basis of which he claimed superiority of his right of pre-emption, a vendee may in some cases improve his own right of pre-emption, 1/5th of money or security may not be deposited or furnished within time, if there is a default in appearance or default in production of evidence, if the court-fee is not paid within time or within the extended time or if the pre-emption money is not paid within time given in the decree and the like. This would mean that the right of pre-emption can get defeated on the happening of any such event. Similarly when there is, according to the said ruling, a contumacious or negligent non-compliance of an order of the Court the right of pre-emption can be defeated in the same manner in which any other legal right could be defeated. Therefore, the dictum laid down in the said ruling does not provide that whatever lapse or whatever sort of lapse of a pre-emptor may be the same has to be condoned and that every discretion has to be exercised in his favour or that every concession has to be allowed to him.
In the present case the appellants had been allowed time for getting the statement of net profits prepared and when it was prepared they were specifically allowed time vide order, dated 24-2- 1969 to make good the deficiency in court-fee upto 31-3-1969. They did not pay it, they did not make any request or application for extension of time and they concocted a false story before the learned First Appellate Court in respect of their said contumacious and at least negligent lapse.
Accordingly, they were not entitled to extension of time and their request was rightly refused by the learned First Appellate Court.
7. In view of the above discussion, the appellants have no case at all. The appeal is dismissed.
However, in view of the decision on law points the parties shall bear their own costs.