' Mushtaq Ahmad and others, the plaintiffs-respondents, had brought a suit to pre-empt the sale of land measuring 13 K 9 M situated in the area of Chak No,29-GB, Tehsil Jaranwala, District Faisalabad, sold by their mother Mst. Naziran in favour of Ali Muhammad defendant-appellant, for a sum of Rs,3,000 asserting their superior right of pre-emption on the basis of their kinship with the vendor and co-ownership in the suit Khata. The suit was contested by the defendant-appellant and on the pleadings of the parties. The trial Court had framed the following issues:-
(i) Whether the present suit is collusive?
(ii) Whether the plaint is insufficiently stamped for the purposes of court-fee and jurisdiction?
(iii) Whether the plaintiffs have no cause of action?
(iv) Whether the plaint is not properly presented by Mst. Khadeeja Begum?
(v) Whether the plaintiffs are entitled to the decree for pre-emption?
(vi) Relief.
2. After recording the evidence of the parties and hearing their counsel, the learned trial Judge decided issues Nos,1 to 4 against the defendant and issue No,5 in favour of the plaintiffs. Thus he decreed their suit vide his judgment dated 8-2-1977. Aggrieved by these findings, the defendant- vendee went up in appeal before the District Court but there too he remained unsuccessful and brought this civil revision.
3. With regard to the findings of the Courts below on issue No,1, it is argued that the plaintiffs- respondents were minors living with their mother Mst. Naziran, the vendor of the suit land and they having filed the suit through their guardian Mst. Khadeeja Begum, their paternal aunt, by itself indicates that the suit was collusive having been instituted by them at the instance and for the benefit of their mother who must have deposited the pre-emption money. According to the learned counsel, the Courts below did not exhaustively discuss this issue and their findings are not sustainable.
4. The minors ordinarily reside with their parents and a presumption can be raised that a suit brought by them must have been instituted at the instance of, and financed by, their parents but the collusion alleged by the defendant-petitioner was to be proved by him as a fact and the issue cannot be answered in affirmative merely on the basis of a presumption. While appearing as his own witness the defendant-petitioner made allegation of collusion which were denied by Mst.
Khadeeja Begum while appearing as guardian of the minor in rebuttal. There was, therefore, no cogent evidence available on the record for the proof of this issue and it was rightly decided against the defendant-petitioner.
5. On the question of court-fee the learned counsel contended that the plaintiffs-respondents had instituted the suit after affixing on the plaint the court-fee stamps of Rs,15 only, without submitting therewith the statement of net profit {{URDU TEXT}} for the determination of exact amount of court- fee payable and when the defendant-petitioner brought it on the record it was simply ignored by both the Courts below as none of them took the trouble of determining the amount of court-fee on the basis of this document. According to the learned counsel, it was a serious omission on the part of the plaintiffs-respondents amounting to contumacy and their suit is bound to be dismissed or the plaint is liable to be rejected under Order 7, Rule 11, C.P.C.
6. On the contrary, it is argued on behalf of the plaintiffs-respondents that they had affixed the court-fee of Rs,15 after evaluating their claim for the purpose of court-fee tentatively and they are even now ready to make up the deficiency of court-fee in accordance with the statement of net profit if so required. The learned counsel, however, submits that if the plaint is deficiently stamped for the purpose of court-fee, the revision petition is equally deficiently stamped and the defendant-petitioner may also be asked to make up the deficiency.
7. During the course of arguments, the learned counsel for the defendant-petitioner has brought out from his brief a document describing it as statement of annual net profit {{URDU TEXT}} of the suit land and after perusing its contents has stated that the net profit thereof during the relevant period was Rs,5,940 and the court-fee payable thereon was Rs,450. This document was not brought on the record during the course of evidence before the trial Court and it remained in the custody of the defendant-petitioner or his counsel. Since this document does not form part of the record it is not proper to refer to and rely upon it. The onus of this issue was on the defendant- petitioner and since he produced no evidence it was rightly decided against him.
8. As a last resort, the learned counsel for the defendant-petitioner has tried to argue the failure on the part of the plaintiffs-respondents to deposit 1/5th of the pre-emption money within the time initially fixed by the trial Court for this purpose though they did deposit this amount within the extended period. According to him, the learned trial Judge could not extend the period to enable them to deposit the 1/5th of pre-emption money without affording the defendant-petitioner an opportunity of being heard but this course was not adopted and adverse order was passed against him against the rule of natural justice. In his opinion the plaint had become liable to be rejected and it may now be rejected on that account.
9. There is sufficient case-law for and against the proposition but the preponderance appears to be in favour of the view that the Court has sufficient power to extend. The time for the deposit of 1/5th of pre-emption money even without the knowledge or consent of the opposite-party. There is, therefore, no substance in this contention as well.
10. In view of the above, there is no force in the petition and the same is dismissed.