1. JUDGMENT .
2. SAEEDUZZAMAN SIDDIQUI, J.---The appellant instituted a civil suit against the respondent to pre- empt the sale of 1/2 share in the land comprising Khasra Nos. 358, 360, 361 and 368 measuring 519 Kanals situated in Mauza Kotla,Thesil Haripur (hereinafter to be called as `the pre-empted land) recorded in the revenue record through Mutation No. 490, dated 30-1-1975, on the ground that he was a co-sharer in the pre-empted land. It was further alleged that the sale consideration of the pre-empted land was exaggerated and shown as Rs.1,30,000 while in fact the price paid was only Rs.5,000. The suit was resisted by the respondent and on the pleadings of the parties, the following issues were framed:--- "(1)Whether plaintiff has got a cause of action?
3. (2)Whether plaintiff is estopped by his own conduct to bring the present suit, because he has participated in the suit transaction?
4. (3)Whether the sale is exempt from pre-emption as defendant is an affectee of Islamabad?
5. (4)Whether plaintiff has got any superior right of pre-emption?
6. (5)Whether the suit is properly valued for the purposes of court-fee and jurisdiction?
7. (6)Whether a sum of Rs.1,30,000 was actually paid or fixed in good faith as sale consideration.
8. (7)Market value of the suit land.
9. (8)Relief."
10. The trial Court after recording evidence of the parties decreed the suit of appellant by judgment dated 31-1-1981 on payment of Rs.33,662 and as Rs.25,000 was already deposited in Court, the appellant was directed to deposit the balance amount within one month from the date of judgment. On Issue No.5 which is relevant for the disposal of present appeal, the trial Court recorded the following findings:--- .
11. "ISSUE N0.5 This issue was also neither pressed nor argued at the Bar. The suit appears to be properly valued for the purposes of court-fee and jurisdiction. This issue is decided against the defendant."
12. The respondent challenged the judgment and decree of the trial Court in Civil Appeal No.153/13 of 1981/83 and agitated only against findings of the trial Court on Issue No.5, which is evident from the following observations of the 1st Appellate Court:-- "At the time of arguments, the learned counsel for appellant confined his arguments only in respect of market value and valuation of suit for the purposes of court-fee and jurisdiction. He submitted that issue in respect of valuation of suit for the purposes of court-fee and jurisdiction was pressed and argued but the learned trial Court has wrongly held that this issue was not pressed at the time of arguments. Since remaining issues were not pressed, therefore, I need not to take them under discussion and the finding of the learned trial Court given thereunder stands confirmed."
13. The first appellate Court -on Issue No.5 recorded the following findings: "So far as Issue No.5 is concerned, it appears from the judgment of the learned trial Court that the same was not pressed before the learned trial Court at the time of arguments, seems genuine because besides that there is deficient evidence on the record to hold the suit of respondent/pre- emptor having not been valued properly for the purposes of court-fee and jurisdiction. In this case five commissions, one after the other were appointed in order to assess the market value. There is nothing to suggest that they ever prayed before the learned trial Court to direct local commissioner to assess market value of the suit land for the purposes of valuation for court-fee and jurisdiction. It is further clear from the record that the suit land is "Dskka Charagah" and the court-fee has been properly assessed in accordance with the net profit from the suit land during the next year before the date of institution of the present suit and in view of section 7(v, vi) of Court Fees Act, the suit has been properly valued. Thus issue No.5 decided in favour of respondent/pre--- emptor."
14. As a result of the above findings of Ist Appellate Court on Issue No.5, the appeal filed by the respondent was dismissed by judgment, dated 18-5-1983.
15. The respondent then filed Civil Revision Application, C.R. No.230 of 1984, before the Peshawar High Court Bench at Abbottabad, assailing the findings of the two Courts below on Issue No.5 in the suit.
16. The Civil Revision was heard ex parte and through au oral order, dated 24-1-1990, the Civil Revision was rejected. However, while writing the judgment in the case, the --learned Judge in Chambers felt certain difficulties and accordingly, the case was posted for re-hearing on 14-2-1990. The revision petition was accordingly re-heard and by judgment, dated 21-2-1990, it was accepted and the plaint in the suit was rejected under Order VII, Rule 11(c), C.P.C. The operative part of the judgment of the learned Judge in Chambers is as follows:--- "13.In the present case a specific order was passed that whatever amount is shown in the net profits of the Revenue Department in the Goshwara which was to be obtained by the plaintiff- respondent shall be taken as the amount for valuing the plaint for the purpose of court--fee. It has granted two opportunities to the plaintiff for the supply of the net profits and the deficient court-fee in accordance therewith.
17. 14.In view of the above this revision petition is accepted, the judgments and decree of both the Courts below are set aside and the plaint is rejected under Order VII, Rule 11(c), C.P.C. No order as to costs."
18. Leave was granted in the case against the judgment of High Court to consider whether the plaint in the suit could be rejected under Order VII, Rule 11(c), C.P.C. Without first determining the deficiency in the amount of court-fee and allowing reasonable time to the plaintiff to make up the deficiency.
19. From the facts stated above, it is quite evident that both the trial Court as well as the first appellate Court on Issue No.5 in the case, held that the valuation of the suit was proper and proper court-fee was paid on the plaint. The learned Judge in Chambers, however, relying on the order sheets Nos.24 to 29 of the trial Court reached the conclusion that the trial Court while appointing a commission in the case for determining the market value of the pre-empted land had, for the purpose of determining the amount of court-fee payable on the plaint, directed the appellant/plaintiff to file the Goshwara of net profit of the pre-empted land from the Revenue Department and pay court-fee according to the amount shown in the Goshwara, and as the appellant/plaintiff had failed to comply with this direction of the trial Court, the plaint was liable to be rejected under Order VII, Rule 11(c), C:P.C.
20. The learned Judge in Chambers while recording the above conclusion, 16 firstly, omitted to notice that the orders passed by the trial Court on order sheets Nos.24 to 29 were of interim and, regulatory, nature which remained effective only until final judgment in the suit. These regulatory orders merged into the final judgment/decree of the trial Court, dated 31-1-1981. Therefore, these regulatory orders passed by the trial Court on order sheets Nos. 24 to 29 had no legal existence apart from the final decree in the suit dated 31-1-1981. Secondly, in order to entail rejection of plaint under Order VII, Rule 11(c), C.P.C., two conditions must be satisfied. Firstly, the Court should have positively and specifically determined the amount of deficit court-fee which the plaintiff was required to pay/affix on the plaint and secondly, a reasonable time must be allowed to the plaintiff to make up the deficiency in the amount of court-fee. None of the above two conditions was satisfied in the case. On the I contrary, both the trial Court as well as the first appellate Court held that the valuation of the suit and the amount of court-fee paid by the appellant/plaintiff on the plaint was proper. In these circumstances, the learned Judge in Chambers could not order rejection of plaint under Order VII, Rule (c), C.P.C. The assumptions on the part of the learned Judge in Chambers, that the orders passed by the trial Court on order sheets Nos.24 to 29 amounted to a direction to the appellant/plaintiff under Order VII, Rule 11(c), C.P.C. To pay the deficit amount of court-fee on the plaint and, therefore, non--compliance thereof could result into rejection of the plaint, was not legally sustainable. As earlier pointed out these orders passed by the trial Court on order sheets Nos. 24 to 29 during the pendency of the suit stood merged into the decree passed in the suit and, therefore, these orders had no legal existence apart from the decree in the suit. In addition to it, the order of the trial Court relied by the learned Judge in Chambers as a direction to appellant/plaintiff p under Order VII, Rule 11(c), C.P.C. Required the plaintiff to file the Goshwara of net profit of the pre-empted land from the revenue authorities and pay the deficient court-fee after calculating the? Proper fee on the basis of the net profit disclosed in the Goshwara. This order of the Court left the calculation of the proper court-fee and the deficit court-fee to the plaintiff which could not be treated as the direction of the Court to pay a deficient amount of court-fee within a specified time. Therefore, non-compliance of such an order could not result in the rejection of plaint in view of the law laid down by this Court in the case of Siddiq Khan v. Abdul Shakur Khan PLD 1984 SC 289 and Muhammad ; Hanif v. Muhammad and others PLD 1990 SC 859.
21. We accordingly allow the anneal anal set aside the enrolment of the High Court, dated 21-2-1990 and 10-7-1990 and restore the judgment any decree passed by the trial Court and confirmed in appeal by the first appellate Court. We will, however, make no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.