' The relevant facts which gave rise to the present FA.O. Are that on 21-3-1979 Murid Hussain, Muhammad Hussain and Ajmal Shah,. Respondents herein, instituted a pre-emption suit against Nathoo, Muhammad Sharif and Muhammad Siddique appellants for the possession of agricultural land, detailed in the heading of the plaint. It was averred that the appellants had purchased the said land from Amir Shah vendor for a price of Rs,20,000 but a fictitious price of. Rs,35,250 was entered in the sale-deed. The respondents/pre-empto , claimed superior right of pre-emption on account of their being collaterals of vendees, co-sharers in the suit land and owners in the estate.
The suit was contested by the appellants/vendees on various grounds. Issues were framed on the pleadings of the parties. Subsequently the appellants moved an application under Order VII, Rule 11, C.P.C. For the rejection of the respondents' plaint on the ground that they had failed to pay proper court-fee within the period of limitation. The said application was contested. After hearing the parties' counsel, the learned trial Court vide order dated 4-5-1981 allowed the said application and rejected the plaint under Order VII, Rule 11, C.P.C. Feeling aggrieved, the respondents lodged an appeal which was accepted by the learned Additional District Judge vide order dated 27-7-1984.
The order of the learned trial Court dated 4-5-1981 was set aside and the case was remanded for decision on merits. The pellants/vendees have assailed the said order of the learned Additional District Judge in this appeal.
2. I have heard the learned counsel for the parties and have also gone through the record.
3. Perusal of the plaint shows that in para. No,8, the respondents had averred that value of the suit for the purposes of court-fee and jurisdiction was Rs,22,500 and that deficiency in court-fee, if any, would be made-up after the preparation of the statement of net profits. As the value of the suit had been fixed at less than 25,000 rupees, no court-fee was paid at the time of the institution of the suit. The record reveals that on 24-3-1979 learned trial Court had directed the respondents to place on record the statement of net profits on 18-4-1979. This order was complied with and the respondents were directed to pay court-fee in accordance with the said statement by 5-5-1979.
The learned trial Court, however, clarified that the making up of the deficiency in court-fee would be subject to the objection by the appellants. The respondents made-up the deficiency in court- fee within the said time valuing the suit for the purposes of court-fee and jurisdiction at Rs,46,114 which was 15 times of the annual net profits of Rs,3,074.27 shown in the statement of net profits.
4. The learned trial Court observed that the statement of net profits on the basis of which the respondents had re-valued the suit was prepared and delivered to the respondents on 17-10-1978 meaning thereby that at the time of the filing of the suit, the respondents were in possession of the said document but they had intentionally and deliberately avoided to pay proper court-fee and as their conduct amounted to contumacy and positive mala fides, they were not entitled to any indulgence from the Court. Consequently relying on PLD 1979 SC 821, it proceeded to reject the plaint under Order VII, Rule 11, C.P.C. In appeal, however, the learned Additional District Judge took a contrary view and relying on PLD 1983 SC 227, set aside the order of the learned trial Court and remanded the case for decision on merits.
5. During the arguments before this Court; it was conceded that the respondents' pre-emption suit was instituted under the Punjab Pre-emption Act, 1913 in which so far no decree has been passed in their favour. It is not disputed that requirement of talabs has not been fulfilled. In view of the law laid down in Government of N.-W.F.P. v. Said Kamal Shah PLD 1986 SC 360, Sardar Ali and others v.
Muhammad Ali and others PLD 1988 SC 287 and Mst. Aziz Begum v. The Federation of Pakistan PLD 1990 SC 899 no pre-emption decree can now be passed in favour of the respondents. Their suit therefore, has become infructuous and the cause of action which the respondents had has been extinguished by operation of law. In these circumstances the impugned order of remand is rendered redundant because to allow the respondents suit to proceed further would be an exercise in futility. Consequently on this -sole ground, the appeal is allowed and the impugned order of remand is set aside. Resultantly, the order of the learned trial Court whereby respondents' plaint was rejected stands restored.
6. Parties shall bear their own costs.