1. This Regular Second Appeal arises out of a suit for possession through pre-emption filed by the respondents on 25-1-1974 in the Court of the learned Civil judge, Daska in respect of land measuring 55 Kanals and 5 Marlas situated in Chah Mari Wala within the Revenue Estate of Village Jamkey Cheema, Tehsil Daska District Sialkot. The land was shown to have been sold through a registered sale-deed, dated 25-1-1973 for a sum of Rs.18,162-50 paisas, although according to the plaintiffs/respondents the price paid was Rs.13,162.50 paisas. The respondents claimed pre- emptive right on the ground of being sons of Abdul Rashid, vendor. The suit was resisted by the appellants who filed their written statement in the Court, which gave rise to the following issues:-- Issues
(1) Whether'the plaintiffs have superior right of pre-emptiqn? O.P.P
(2) What are the respective rights of the pre-emptors inter se? O.P.P
(3) Whether sale price of Rs..18,162 was fixed in good faith or actually paid? O.P.D. '
(4) ---If issue No.3 is not proved what is market value of the suit property? O.P. Parties.
2. (5)Whether the suit of Tariq Rashid is Benami? O.P.D. .(6)Whether Tariq Rashid is estopped to bring the suit by his conduct and act? O.P.D.
3. (7)Whether the sale in question is not pre-emptible? O.P.D.
4. (8)Whether the suit is hit by Martial Law Regulation No. 115? O.P.D (9)Relief.
5. After recording evidence of the parties, the trial Court decreed the suit vide judgment and decree, dated 1-6-1976. The appellants filed an appeal which was dismissed by the learned District Judge, Sialkot vide his judgment and decree, dated 19-12-1982.
2. The appellants' learned counsel contends that the respondents/plaintiffs had not paid proper court-fee before the trial Court; that a dumber of orders were passed calling upon the plaintiffs to file chart of net-profits but the needful was not done till the decision of the suit; that the conduct of the plaintiffs/respondents was clearly contumacious and they did not . Deserve exercise of discretion in their favour; that the appellate Court had wrongly allowed an opportunity to the respondents/plaintiffs to make good the deficiency of the court-fee on the erroneous view that the chart of net-profits had been filed by Umar Din; that no such chart was available on the, file of the said suit and that the plaintiffs/respondents had failed to prove prevalence of custom of pre-- emption in the locality where the suit, property was situated. In this connection, he relies on the following judgments:-- (1)Karim Bakhsh v. Qadir Bakhsh and another PLD 1954 Lah. 228, (2)Muhammad and 2 others v. Mubarik Ali and another PLD 1977 Lah 1422, (3)Muhammad Siddique and 2 others v. Master Muhammad Ibrahim and 3 others PLD 1981 Lah. 97, (4)Mst. Parveen v. Mst. Jamsheda Begum and another PLD 1983 SC 227, (5)Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289, (6)Gulzar Hussain v. Abdur Rehman's and another 1985 SCMR 301, (7)Khuda Yar and 4 others v. Resaldar Malik Nawaz Khan and 2 others PLD 1987 Lah. 127, (8)Abdul Majid v. Muhammad Afzal Khokhar 1993 SCMR 168.6, (9)Sher Muhammad and another v. Ghulam Muhammad 1993 CLC, 1027,
(10) Qadir Bakhsh and others v. Khawaja Ghulam Moeen-ud-Din 1994 CLC 1949,
(11) Allah B,akhsh and others v. Muhammad Boota and others 1994 CLC 2278,
(12) Mst. Fatima Bibi and others v. Noor Dad and another 1994 SCMR 62,
(13) Muhammad Ismail v. Mukhtar Ahmad and another 1994 MLD 402,
(14) Taj Muhammad and others v. Muhammad Munir 1994 MLD 1943, (15)Zulfiqar Ali v. Mst. Sajida Begum 1994 MLD 1020,
(16) Zulfiqar Ali v. Mst. Sajida Begum 1995 SCMR 911 and
(17) Muhammad Ahmad v. Muhammad Ali and another PLD 1996 Lah. 158.
3. On the other hand, the respondents' learned counsel submits that the appellants had not raised any objection qua deficiency of court-fee in the written statement filed by them, therefore, there was no justification to call upon the respondents/plaintiffs to file a chart of net-profits; that the objection regarding court-fee was raised before the appellate Court and the deficiency was made good after the appellate Court had granted an opportunity to the respondents for the said purpose; that the respondents' conduct was not contumacious in any manner; that there was no need to prove the prevalence of custom of pre--emption in the locality because the land was agricultural and no objection was raised before the Courts below regarding prevalence of custom and the said point cannot be allowed to be raised for the first time in the second appeal.
6. 4.It is true that the appellants had not raised any objection in the written statement regarding the amount of court-fee affixed on the plaint. However, it was open to the Court to ascertain whether court-fee had been paid in accordance A with the law. Payment of proper court-fee is essentially a matter between the Court and the litigant. Therefore, the Court could legitimately call upon the plaintiff in a pre-emption suit to file a chart of net-profits in order to come to definite conclusion whether proper court-fee had been paid. Therefore, the trial Court was fully justified to direct the plaintiffs/respondents to file a chart of net --profits. The plaintiffs had originally affixed court-fee of Rs.105 on the plaint due to their claim that the amount of 15 times of the net-profits was Rs.1,315. The chart of net-profits was produced before the appellate Court. It was found that the net-profits for the previous year before the institution of the suit were calculated as Rs.353.80 paisas. Its 15 times value was worked out as Rs.5,307 on which court-fee of Rs.398 was payable. The deficiency of the court-fee was made good by the respondents before the target date i.e. 18-2-1983 as ordered by the appellate Court. It is true that the trial Court had passed a number of orders calling upon the plaintiffs/respondents to file charge of net-profits but the needful was not done. Adjournments for the purposes of filing a charge of net-- profits were granted on 9-9-1974 and again on 11-11-1974.
7. Thereafter, the written statement was filed on 6-6-1975 in which no objection was raised qua the alleged deficiency of court-fee or the value of the subject-matter of the suit. Perhaps, that led the plaintiffs to believe that the controversy qua court-fee was settled. Again, the controversy was raised on 1-6-1976 but the trial Court did not insist on directing the plaintiffs to produce the charge of net-profits on the erroneous view that proper court-fee had been paid in accordance with the charge of net-profits which was allegedly available in the case of the rival pre--emptor Umar Din.
8. But for the said error, the trial Court would have secured compliance of the earlier orders for filing a charge of net-profits and then would have ordered the plaintiffs to make good the deficiency of court-fee calculated on the basis of the charge of net-profits. Anyhow, for the first time the chart of net --profits was produced before the appellate Court in compliance with its order. It was ascertained that the value of the subject-matter of the suit for the purposes of court-fee came to Rs.5,307, on which a court-fee of Rs.398 was payable (the amount of court-fee was not mentioned in the appellate judgment). The plaintiffs had already paid a sum of Rs:102 and paid the remaining amount before the target date i.e. 19-2-1983 fixed by the appellate Court. The appellate Court appears to have exercised its discretion properly in the light of the judgments of the superior Courts. I do not agree with the appellants' learned counsel that the conduct of the respondents was contumacious or that they were guilty of positive mala fides and were not entitled to exercise of discretion in their favour. In the light of this finding in favour of the respondents, there is no need to discuss a number of judgments cited by the appellants' learned counsel. Suffice it to observe that after ascertaining deficiency in court-fee specifically, an opportunity has to be given to a party to make good deficiency of court-fee as held by the 8 Honourable Supreme Court in the case of Siddique Khan and 2 others (referred to by the appellants' learned counsel) unless it is disentitled to relief on a clear finding of contumacy and positive mala fides.
9. 5.The argument that the plaintiffs/respondents had failed to prove prevalence of custom of pre- emption in the locality is hardly relevant in the present case. The disputed property is shown to be agricultural land and no objection was raised in the written statement regarding character of the land. Therefore, no issue was framed by the trial Court on the said point. This point was not raised even before the appellate Court and cannot be allowed to bell agitated for the first time in the second appeal before this Court.
10. 6.For the foregoing discussion, I do not find any merit in this appeal which is dismissed.