1. Mukhtar Ahmad plaintiff-respondent sued for pre-emption in respect of sale of a piece of land measuring 1 Kanal, 16 Marlas situated in revenue estate Sheikhum of Tehsil Chunian, by his father to Muhammad Ismail on 11-7-1992 through Mutation No. 1172 of even date. Pre-emption suit was instituted on 7-7-1973. Plaint in the pre-emption suit was assessed at ten times of the land revenue assessed on the land for purposes of payment of court-fee and at thirty times for purposes of jurisdiction of the Court. An eight-anna court-fee was paid on the plaint. Defendant-vendee resisted the suit. Number of preliminary objections were raised in the written statement submitted by him. Of them, only two survived for decision in the civil revision. One was about the minority of the plaintiff and the other was about payment of proper court-fee on the plaint of pre-emption suit.
2. On the strength of evidence taken at the trial, the trial Court decreed pre-emption suit, in favour of the plaintiff on 7-1-1982, subject to payment of Rs.546 as the price for the land till 27-1-1982. In default of payment of the purchase-price by the due date, pre-emption suit was considered to have been dismissed. It was held the court-fee paid on the plaint was sufficient; plaintiff had superior right of pre-emption and the market value of the land sold was RsS46.
3. Defendant preferred an appeal. It failed on 22-9-1984 in the lower appellate Court. However, deficiency in payment of court-fee in the sum of Rs35 was required to be made up by the plaintiff within one month of the judgment of the lower appellate Court failing which, pre-emption suit was to be dismissed. It may be added that deficiency in Court-fee was made up in time. Aggrieved of this judgment, vendee-defendant came in revision to this Court. It was admitted on 30-9-1984.
4. On behalf of the petitioner, it was urged that the plaintiff at the time of institution of the pre- emption suit was a minor and could not have competently instituted the pre-emption suit without the aid of a next friend. It was further urged that on an appeal filed by the petitioner against the judgment and decree of the trial Court, lower appellate Court could not have ordered for deposit of deficit court-fee for saving the pre-emption suit from dismissal on this score. Learned counsel vehemently countered the contentions advanced on behalf of the petitioner and submitted that though an objection about minority of the plaintiff was taken in the written statement by the petitioner, yet, he gave no evidence of it at the trial of the suit and as far the direction for payment of deficit court-fee on the plaint, section 12 (ii) of the Court Fees Act, 1870 sufficiently empowered the court of appeal to make an order for its payment and upon meeting the deficiency, the document was retrospectively validated. The arguments advanced by learned counsel for the respondent carried much force. Respondent sued as major. Petitioner raised an objection that respondent was minor at the time of institution of pre--emption suit. Objection was not seriously pursued further. No issue for trial on it was claimed by the petitioner. Also no evidence was given of the minority of the respondent. Respondent appeared as a party witness in the case. He was not suggested that he was a minor at the time of institution of the suit. In appeal preferred from the decree of the trial Court, respondent was shown major in the memorandum of appeal by the petitioner. The objection grounded on minority was not seriously pursued at any sale. Necessary result of it was that there was no evidence on record to prove that the respondent suffered from a disability of minority at the time of filing of pre-emption suit by him. It may be noticed that no separate application was filed by the petitioner in terms of Order XXXII, Rule 2, Civil P.C. for taking the plaint of the file. Learned counsel for respondent showed me the identity card of the respondent. In it, his date of birth was recorded as 4-2-1953. This showed that he was major at the time of institution of the pre-emption suit in the trial Court. Therefore, there was no defect in the institution of the pre-emption suit by the respondent himself. Even otherwise, the defect in representation was curable by amendment of the plaint. Rule 2 of Order XXXII, Civil P.C. did not envisage a compulsive dismissal of the suit instituted by a minor without the aid of a next friend.
5. The court trying the suit was possessed of jurisdiction to cure the defect. There are number of authorities to support this view. In view of the settled statement of law on the interpretation of Rule 2 of Order VM, Civil P.C. in that direction, it was unnecessary to refer to the whole body of the case- law. Reference to my own decision in Muhammad Nawaz Khan and 2 others v. Islam-ud-Din 1991 MLD 1253 (Lahore) shall be helpful.
6. As regards direction for payment of deficit Court-fee by the lower appellate Court, section 12 (ii) of the Court Fees Act sufficiently invested it with jurisdiction for making of it. Similarly, Section 107 (2) of Civil P.C. gave the Appellate Court same powers and duties as were conferred and imposed on the Court of original jurisdiction in respect of the suit instituted before it. The powers of the appellate court were-co-extensive with the power of the trial Court. Like it, it could also determine the amount of Court-fee payable on a document and call for its payment. Without allowing an opportunity for meeting the fiscal liability, the plaint or appeal as the case may be could not be rejected by the Court. Punjab Finance Act, 1973 (Act XIV of 1973) came in force on 1st day of July, 1973. Pre-emption suit was instituted on 7-7-1973. Plaint was assessed for purpose of Court-fee at ten times the land revenue assessed on the land in dispute. This was the correct position prior to the enforcement of Punjab Finance Act, 1973. It was common ground that the suit land was not under cultivation and yielded no net profits in the year preceding the institution of the pre-emption suit. Therefore, ad valorem Court-fee was payable on the market value of the suit land. It was found to be Rs.546. The direction for payment of additional court-fee was-made in accordance with the market value of the land determined by the trial Court. In my opinion, lower appellate Court sufficiently safeguarded the interest of State revenue without causing any justifiable grievance to the petitioner or infringing any of his rights in the fair trial of the pre-emption suit.
7. There is much ado about nothing.
8. Having regard to the aforesaid, civil revision must fail. Consequently, it is dismissed with costs.
9. Records be returned.