1. ' By a sale-deed, dated 25-7-1977, Abdul Ghafoor sold 20 Kanals 7 Marlas of land 48/96th share from Khasras 3046, 4165, 4170, situate at Mouza Kud-Lathi, Tehsil Attock at the price of Rs.25,000 to one Sikandar Din defendant in the suit. Muhammad Din, as plaintiff claimed that he was tenant of the land and pre-empted the sale. Suit was instituted in the Court of Collector on 24-7-1978. In addition to asserting of his right of pre-emption, plaintiff disputed the price paid for the land and alleged that it was sold for Rs.14,000 only and the rest of the amount was mentioned in the sale- deed merely to defeat the pre-emption suit. Defendant contested the suit. It was pleaded that plaintiff was estopped to sue; that pre-emption suit was instigated by some other person whose name, however, was not stated in the written statement. Right to pre-empt was also traversed and it was submitted that land in suit was purchased for Rs.25,000 which price was fixed in good faith and was actually paid also. Market value of the land, it was stated, was not less than the price actually paid. On 25-11-1978, Court framed issues which covered pleas in regard to estoppel, right to pre-empt, price paid for the land, its market value and also whether the valuation set up in the plaint for court-fees was incorrect. It appears from trial Court's records that suit was adjourned on a number of dates for evidence. Finally, on 6-7-1982, plaintiff appeared as his own witness, gave his statement, produced copy of Jamabandi Ext.P.1 and copy of Khasra Girdawari Ext.P.2. For the defendant, his attorney Mehboob Elahi, made statement as D.W., produced copy of the sale-deed Ext.D.1 and power of attorney executed in his favour Ext.D.2.
2. ' On 30-8-1982, learned Collector gave decision for the defendant and dismissed the suit on the short ground that the plaintiff had neither produced schedule of net profits in time nor had paid the deficit court-fee. On appeal, this decision was reversed by learned Additional Commissioner, (Revenue), Rawalpindi on 30-F-1982. It was held that plaintiff had superior right of pre-emption to the extent of land in Khasras 4165, 4170 only, Rs.21,223 were found as price payable for the land, and Court gave decree for pre-emption to the plaintiff on the payment of the aforesaid price which the plaintiff was directed to deposit till 31-12-1982. Usual default clause was also added in the decree sheet. In regard to court-fee payable on the plaint., Court was of the view that according to fifteen times of annual net profits calculated on the basis of the schedule available on trial Court's record, payment of court-fee was not required at all. Though the defendant against whom suit was decreed, had a right to file revision to the Board of Revenue under para. 25(7) of the Land Reforms Regulation 115 of 1972, yet without availing this statutory remedy, he chose to avail of the extraordinary remedy by an application under Article 199 of the Constitution, to this Court and prayed that records of the Courts below be called and the impugned order, dated 30-11-1982 be declared to have been made without lawful authority and of no legal effect.
3. ' Constitutional petition was admitted to hearing on 13-4-1983 to examine the point of court-fee only and its causative effect on the question of limitation in regard to the pre-emption suit.
4. ' Factual matrix of the case and evidence bearing thereon and the points raised in the writ petition are fairly short and simple. Plaintiff's tenancy is established beyond dispute and is clearly proved by entries in Jamabandi Ext.P.1, extract from register Kasra Girdawari Ext.P.2, his oral testimony and the clear admission of the defendant's attorney conceding possession of the plaintiff over the land decreed to him. On the records, there is no material to discredit the weight of this evidence. Also there appears to be no dispute about price fixed and found payable for the land decreed to the palintiff. From the endorsement appearing on the back of the sale-deed Ext.D.1, it is manifest that sum of Rs.25,000 was paid to the vendor at the time of the registration of the sale-deed. In the circumstances, parties rightly did not raise dispute in regard to the fixation and payment of the price. Khasras 4165, 4170, recorded in the cultivating possession of the plaintiff-pre-emptor are classification-wise 'Maira Doem' and 'Banjar Qadeem'. Khasra No. 3064 excluded from the decree is also 'Maira Doem'. When the nature of the land and its classification are taken account of, proportionate price on the payment of which partial decree was given to the plaintiff, appears to be absolutely correct. On question of estoppel, there is not a syllable of evidence and no attempt was made to urge anything in support thereof. At the hearing, findings on substantial issues like right of pre-emption, sale price and estoppel were not questioned at all. Much time was, however, devoted by Sh. Zamir Hussain, Advocate, to debate the question of court-fee and its effect on the pre-emption suit. It was contended that valuation set up in the plaint for purpose of the court-fees was extremely inadequate and that the plaintiff had also failed to provide to the Court schedule of annual net profits in time and had not paid the required amount of court-fee within the period of limitation prescribed for the pre-emption suit. Court-fee of Rs.113 was paid upon the plaint.
5. Statement in the plaint in regard to annual net profits was based on a mere guess work. In the circumstances, defendant disputed the correctness of the amount of court-fee paid on the plaint and urged that the plaint was deficiently stamped. On the objection of the defendant, Court raised a separate issue. Records indicated that in the course of trial, plaintiff had made an application to the Court for permission to pay court-fees on the basis of the statement of annual net profits got prepared by him without the assistance of the Court. It is also seen from the records that the defendant resisted this attempt and submitted that time for taking on record the schedule of net profits and payment of deficit court-fee had long run out. Scrutiny of records, however, reveals that the trial Court had neither ascertained the correct amount of court-fees payable on the plaint nor had given any time in the plaintiff-pre-emptor to make good the discovered deficit if any. It is common ground that plaint was deficiently stamped. Appeal Court on a totally wrong assumption of law proceeded to hold that the plaint was exempt from payment of court-fees. This appears to be an incorrect approach. In terms of section 2(b) of Punjab Ordinance No.X of 1983 (The Punjab Court Fees (Abolition) Ordinance, 1983), no court-fee was chargeable on any case of civil nature, the value of the subject-matter whereof or the relief claimed wherein did not exceed Rs.25,000.
6. Aforesaid Ordinance took effect from 1-8-1978 and it did not touch the issue prior thereto. Schedule of net profits available on the trial Court's file, correctness whereof was not seriously disputed by the parties before me indicated Rs.1,159 as the annual net profits arising from the land in suit. Under section 7(vi) of Court Fees Act, court-fee payable on the plaint in the pre-emption suits, shall be calculated on fifteen times of the annual net profits arising from the land in the year next before the date of presenting the plaint. As said above, suit was filed on 24-7-1978 and the provisions of the Ordinance X of 1983 giving exemption from the payment of court-fee upto a stated limit, were applied from 1-8-1978. On proper calculation, the amount on which the court-fee was payable comes to Rs.17,385. There is no dispute that the claims filed in Courts earlier to the enforcement of the Ordinance X of 1983, were clearly liable to court-fees in accordance with the law then prevailing. Mr. Muhammad Munir Peracha, Advocate, for the respondent conceded to the correctness of the above statement. From the facts either proved or admitted, it cannot be said that the plaint at the time of its presentation to the Court was adequately stamped. In brief, both the learned counsel are agreed that the plaint in the pre-emption suit when it was filed before Collector was deficiently stamped. This brings me to the consideration of the question of deficiency in court-fees and its legal effects on the future fate of the suit. This question has engaged my serious attention. For the proper appreciation of the question raised, reference to sections 6 and 28 of the Court Fees Act becomes necessary. Section 6 of the Court Fees Act provides that no document of any of the kinds specified as chargeable in the First or Second schedule annexed to this Act shall be filed, exhibited or recorded in any Court of justice, or shall be received or furnished by, any public officer, unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said schedules as the proper fee for such document. Section 28 of the same Act says that the document which required stamp shall not be of any validity unless it was properly stamped. It appears that unless required amount of court-fee chargeable on the document (which term includes plaint also) as was indicated in the Schedules was not paid, it shall not be taken to be of any validity. But this statement does not lead to a necessary corollary that the plaint which was not adequately stamped was not a 'proper plaint' at all in the eyes of law and further that for the limitation purposes suit shall be deemed to have been instituted only when proper and required court-fees was paid on it. See Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289 (at page 315). What are the necessary legal requirements of a .Valid plaint (a phrase not defined in the C.P.C.) and what points it must contain are expressly given by Order VII, Rule 1, C.P.C. Reference to other provisions of the Code in regard to pleadings is not necessary. Order IV, Rule 1, C.P.C. Which is headed 'Institution of suits' provides that a suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf. Explanation to section 3 Limitation Act 1908, to the extent it is relevant to the occasion, says 'A suit is instituted in the ordinary cases when the plaint is presented to the proper officer'. Read together, the date of the suit must be reckoned from the time when the plaint was first presented to the Court competent to receive it and, in my opinion, insufficiency or defficiency of court-fees shall not affect the question of limitation at all. Also, in my judgment, 'validity' of the plaint for the purpose of Limitation Act is nct dependant on its validity for the purposes of Court Fees Act. On merits, the petitioner has no case.
7. All the issues which affect the pre-emptor's entitlement to get the land have been found in his favour and have been correctly resolved except the question of court-fee. Parties must win or lose their cases on substantial grounds and not 'technical tortures' and the Courts cannct be abettors. It is trite law that Court Fees Act as its very name suggests was passed to secure revenues for the State and it was never its purpose to arm a litigant with a weapon of technicality against his opponent. I fail to understand as to what real benefit shall accrue to the petitioner from the matter of court-fees except that it may enrich the State by a certain amount of money. Remand of the case for hearing de novo and decision afresh shall further involve the parties into a purposeless and wasteful vortex of litigation. Decision of the Shariat Appellate Bench of the Supreme Court holding against the pre-emption right of tenant does not operate retrospectively to set at naught the decrees already passed by Courts of competent jurisdiction. Petitioner, if aggrieved of the impugned judgment was obliged to have invoked the remedy of revision before the Board of Revenue. He was not entitled to by-pass the statutory remedy and approach High Court in its extraordinary jurisdiction without exhausting all the statutory remedies in the hierarchy of the special law enacted for decision of the pre-emption suits by tenants. On the view that proper role of a Judge for which purpose alone the institution exists is to do justice between the parties before him and that technicalities unless found unsurmountable, should not be allowed to stand in his way to do justice in accordance with the law, I am of the opinion that interference with the findings on the merits of the case in regard to the entitlement of the respondent to get the land at the price fixed by the Court below, may not at all be proper and just. At the same time, respondent cannot be permitted to evade the payment of correct amount of court-fee payable by him on his claim. To this extent, the impugned judgment is bad and is liable to be set aside. As jurisdiction in writ is not in continuity of the suit and it being doubtful as to whether the High Court in writ jurisdiction can call upon the defaulter to make up the deficiency in court-fee on the plaint, the decision of the Court below to the extent that it decided the question of court-fee erroneously, is found to be without lawful authority. Except for the above, findings on the remaining issues are not disturbed.
8. Result is that the impugned judgment to the extent indicated above (question of court-fee only) is set aside and the case is remanded to learned Additional Commissioner, (Revenue), Rawalpindi with the direction to ascertain the amount of court-fee eligible on the plaint in accordance with the Schedule of net profits already on the trial Court's record, give the pre-emptor an opportunity to make good the deficiency within a time to be fixed by him and in case of default of payment of court-fees, if the learned Additional Commissioner, (Revenue) finds no good ground to further extend the time, relevant provisions of law in regard to non-payment of court-fees shall be allowed to take their due course. Except for the question of court-fee, impugned decision does not seem to suffer from any infirmity qualifying for interference in writ jurisdiction. As stated above, merits favoured the respondent whereas technicality assisted the petitioner. On consideration of all the relevant circumstances arising in the case and the related provisions of the Court Fees Act, course adopted, to me, appears to be just and proper. In the circumstances, the parties are left to bear their own costs.
9. ' Records be sent down to the Court of learned Additional Commissioner, (Revenue), Rawalpindi, where parties are directed to appear on 21-9-1987.