1. ' Land measuring 151 Kanals, 17 Marlas situate at Mauza Sheikhan in Tehsil Chunian belonged to Muhammad-ud-Din son of Qadir Bakhsh and Muhammad Sharif son of Ismail. By Mutation No, 1170 attested on 11-7-1972, they sold it to Muhammad Ismail for a sum of Rs,60,000. Mukhtar Ahmad and Shaukat Ali claimed pre-emption in respect of this sale. Mukhtar Ahmad was son of Muhammad- ud-Din, whereas, Shaukat All was son of Muhammad Sharif. Defendant was not related to the vendors. Pre-emption suit was instituted on 10-7-1973, in the civil Court at Chunian.
2. ' Defendant resisted the suit. He raised number of preliminary objections to the maintainability of pre-emption suit filed by the plaintiffs. Important among their surviving for decision in the civil revision were the questions relating to insufficiency of court-fee paid on the plaint and the minority of the plaintiffs at the time of filing of pre-emption suit by them. Nonetheless, for a better perception of the controversial points between the parties, reference to the issues settled for trial shall be helpful. These were:---
(1) Whether the suit is not correctly valued for the purposes of court-fee and jurisdiction? If so, what is the correct valuation? O.P.Parties.
(2) Whether the suit is for partial pre-emption? If so, to what effect? OPD
(3) Whether the plaintiffs are estopped by words and conduct to file this suit? OPD
(4) Whether the suit is collusive? If so, to what effect? OPD
(5) Whether the suit is within limitation? OPP
(6) Whether the suit is bad for misjoinder of causes of action. If so, to what effect? OPD
(7) Whether the plaintiffs had got superior right of pre-emption? OPD
(8) Was the sum Rs,60,000 fixed in good faith and actually paid? OPD
(9) If issue No, 8 is not proved then what is the market value? O.P.Parties.
(10) Relief.
3. ' Upon taking evidence from the parties and its examination, the trial Court decreed pre-emption to the plaintiffs on 7-1-1982 subject to their paying Rs,60,000 as sale price of the land to the defendant by 27-1-1982, failing which the pre-emption suit was to stand dismiss. Defendant preferred an appeal. It was dismissed on 22-2-1982 by learned Additional District Judge, Kasur.
4. ' Thereupon, the present civil revision was filed in this Court. It was admitted to hearing on 27-10- 1984 and has been beard today.
5. ' Seen from the above, controversy requiring resolution was much narrowed down. Only two points were urged at the hearing for the petitioner by his learned counsel. First point was that the plaintiffs were minors at the time of institution of the pre-emption suit by them and without the assistance of a next friend, they could not have sued for pre-emption. Second point was that the plaint was inaccurately assessed for purposes of court-fee and consequently, deficit court-fee was paid on it.
6. It was urged that despite a direction for filing of statement of annual net profits and making good the deficit court-fee in accordance therewith, plaintiffs contumaciously defaulted. Therefore, their suit was liable to be dismissed on this score. On behalf of respondents, their learned counsel argued that the plaintiffs were major and did not suffer from a disability of minority. As for the second contention, he argued that the plaint was properly assessed for purposes of court-fee and correct amount of court-fee was paid on the plaint. Both the lower Courts had found that the proposed valuation was correct. Therefore, it was not open to the petitioner to question their findings in revision. Strictly, in the alternative, learned counsel submitted that in order to safeguard the interest of State land, this Court was also empowered under section 12(2) of the Court Fees Act, 1870 for allowing the deficiency in court-fee made up and in case, the Court called upon the plaintiffs to pay the deficit court-fee on the plaint, the plaintiffs shall readily pay the same.
7. ' Upon hearing the learned counsel for the parties at length and examination of the original records, both the contentions advanced in support of civil revision by the learned counsel for the petitioner are found to have little substance in them. As for the first contention that the plaintiffs were minors at the time of filing of pre-emption suit by them, record gave no proof of it. Plaintiffs showed themselves as major and instituted the pre-emption suit in that capacity. Defendant asserted that they were minors. Though an objection was taken on this score in the written statement, but, neither an issue was pressed for it nor any evidence was tendered in support of it.
8. In appeal filed against the judgment and decree of the trial Court, the plaintiffs were arrayed as respondents and were shown as major. In the memorandum of appeal, objection regarding minority at the time of institution of pre-emption suit by the plaintiffs was reiterated, but it did not seem to have been pressed at the hearing by the petitioner or his counsel. Judgment given in appeal was consciously silent on this point. In the connected Civil Revision No,1524 of 1984 arising from a pre-emption suit between the petitioner and Mukhtar Ahmad one of the respondents decided by me on 17-10-1993, on the basis of identity card of Mukhtar Ahmad, it was found that he was born on 4-2-1953 and, therefore, had attained majority much before the filing of pre-emption suit by him. Photo-copy of his identity card was placed on file of Civil Revision No,1524-D of 1984. As for Shaukat All plaintiff-respondent No,2, his identity card showed his birth in the year 1953.
9. Therefore, at the time of institution of pre-emption suit by him, he too was about twenty years of age. Hence, they did A not suffer from disability of minority, when they filed the pre-emption suit against the petitioner. It was true that it was the duty of the trial Court to settle proper issues for decision. Nonetheless, in case of an omission on its part, a litigant party was equally responsible to invite the attention of the Court for supplying the deficiency. The defendant was aware of his objection taken in the written statement. Issues were settled in his presence. He raised no objection, nor, did he claim a separate issue on the question of minority of the plaintiffs. Further, he did not hint at it in his evidence. So much so, he did not suggest to the plaintiffs that they suffered from disability of minority and could not sue without the aid of next friend. He kept the objection in store for raising of it at this stage of proceedings. I do not think, the objection has any force in it. As observed above, respondents gave their identity cards to the Court for showing that they had attained majority much before filing of pre-emption suit by them. Petitioner did not furnish any rebuttal. In the context, the contention was not acceptable.
10. ' As regards less payment of court-fee on the plaint of pre-emption suit, it was necessary to observe that the plaint was assessed for purposes of court-fee at ten times the land revenue assessed on the land in dispute and court-fee of Rs,12-12 Annas was affixed on the plaint. In course of trial, on the basis of Ferd-Khalis-Manafa, a further court-fee of Rs,45-12 Annas was paid on 30-7- 1973 by the plaintiffs. Under Issue No,1, the trial Court found that valuation of the suit fixed by the plaintiffs was correct and answered the issue accordingly. In appeal, the finding of the trial Court on Issue No,1 was affirmed. Pre-emption suit was instituted on 10-7-1973. Punjab Finance Act, 1973 (Act XIV of 1973) came in force on 29th June, 1973. It raised court-fee on the suit for possession of land on the basis of fifteen times of the net-profits arising from the land during the year next before the date of presenting the plaint. Trial Court neither determined the precise amount of court-fee payable on the plaint by the plaintiffs, nor called upon them to pay the precise amount. A mere requisition for filing of Naqsha Jhar Paidawar for determination of the amount of court-fee payable was insufficient. It was settled law that without prior determination of the amount of court-fee payable on a document and calling upon the party for making good the discovered deficiency in court-fee, penal action was not called for. The land in dispute was cultivable. It yielded net-profits in the year next before the date of presenting the plaint of the preemption suit. Relevant harvests in this behalf were Kharif 1972 and Rabi 1973. In order to ascertain, whether the question of payment of court-fee had been wrongly decided to the detriment of the revenue, plaintiffs-respondents were called upon to submit Fard-Khalis-Manafa of the land in dispute pertaining to cross Kharif 1972 and Rabi 1973. Required statement was filed in Court. It showed the owner's share of net-profits on half- Batai basis at Rs,3,722. Learned counsel for respondents relied on the case of Muhammad Hussain and others v. Panu Khan and others 1985 CLC 2966 (Lahore), to urge that the landlord's share of the net-profits was required to be worked out at 40% in terms of section 15-A of Punjab Tenancy Act, 1887. Thus computed, a court-fee of Rs,3,247.50 paisas was required to be paid and affixed upon the plaint. A sum of Rs,67.50 paisas was already paid as court-fee on the plaint. Therefore, a further sum of Rs,3,180 as court-fee on the plaint was yet payable by the plaintiffs for validating the proceedings taken on it. In terms of section 12(2) of the Court Fees Act, 1870, plaintiffs-respondents are called upon to pay additional court-fee in the sum of Rs,3,180 by or before 1-12-1993 in the trial Court, failing which the plaint in the pre-emption suit shall be deemed to have been rejected under Order VII, Rule 11, Civil P.C. In the event of payment of additional court-fee in time, civil revision shall be deemed to have been dismissed. Civil revision is disposed of in the above terms. In the facts and circumstances, parties shall bear their own costs in this Court. No other point was urged.
11. ' Records be returned.