1993 PLP 2110 (SCMR)

AJMAL MIAN, J.‑‑‑This is an appeal with the leave of the Court against the judgment dated 15‑5‑1989 passed by a learned Single Judge of the Lahore High Court in Civil Revision No. 694/D of 1986, filed by the appellants against the judgment and decree dated 6‑3‑1986 of the learned Additional District Judge, Okara passed in Civil Appeal No. 116 of 1985, filed by the respondents whereby the judgment and decree of the learned Civil Judge, Depalpur, dismissing the respondent's suit for pre‑emption were reversed and a decree in their favour was passed, dismissing the same and maintaining the above appellate judgment and decree. Leave to appeal was granted to consider, whether the learned Judge in chamber erred in relying upon net profits table Exh.P.2 relating to Kharif 1978 and Rabi 1979 for the purposes of court‑fee, instead of Kharif 1977 and Rabi 1978.

2. The brief facts are that respondent No.1 plaintiff filed a civil suit for pre‑emption regarding the suit land, the detail of which is given in para. 1 of the plaint, which was purchased by the appellants/defendants Nos.1 and 2 from defendants Nos.3 to 5, Muhammad Ali, Nazir Ahmad and Muhammad Tufail, sons of Ghulam Muhammad. Defendant No.3 is now represented by his legal representatives (respondents Nos.2 to 9), whereas defendants Nos.4 and 5 are respondents Nos.10 and 11 in the present appeal. The above suit was resisted by the defendants, inasmuch as written statement was filed. On the basis of pleadings of the parties, the learned Civil Judge framed the following Issues:‑‑ (1) Whether the suit has been incorrectly valued for court‑fee? OPD. After recording evidence and hearing the parties, the learned Civil Judge, under Issue No.1, ordered the rejection of the plaint under Order VII, Rule 11, C.P.C. on the ground that respondent No.1/plaintiff was required to prepare the schedule of net profits, which had accrued from the suit land during the year preceding to the sale before the date of presentation of plaint, which was presented on 25‑3‑1979 and that Exh. P.2 related to annual net profits for the crops Kharif 1977 and Rabi 1978. Whereas, under Issue No. 2, it was held that the suit was not time‑barred. On Issue No.3, the learned Civil Judge recorded his finding that respondent No.1/ plaintiff had cause of action against the defendants having a superior right of pre‑emption. As regards Issue No.4, it was held that respondent No.1/plaintiff had purchased the suit land in good faith for consideration of Rs.44,

000. Whereas, under Issue No.5, it was held that the defendants had not produced any documentary evidence to prove waiver. Issue No. 6 was decided in favour of the defendants and against the plaintiff. On Issue No. 7, it was held that the defendants' claim of having incurred expenses on the improvements, was not proved. Accordingly, the above issue was decided against the defendants. Under Issue No.8, it was held that in view of the findings recorded on the above Issues, suit was dismissed and the plaint was also rejected under Order VII, Rule 11, C.P.C.

3. Against the above judgment and decree, respondent No.1 filed above civil appeal, which was allowed and respondent No.1's suit was decreed. On Issue No.1, the following finding was recorded by the learned Additional District Judge:‑‑

'"The learned counsel for the appellant has pointed out that a schedule of net profits of the preceding year i.e. of Kharif 1978 and Rabi 1979 is on the file. According to this schedule the sum of Rs.551 has been assessed as the net profits of the suit land preceding the year of institution of the suit. If this amount is multiplied by fifteen times, even then no court‑fee is leviable as the amount does not exceed Rs.25,

000. Had this amount exceeded Rs.25,000 even then the appellant was entitled to get time to make up deficiency in court‑fee. Her plaint could not be rejected without affording an opportunity to her to make up deficiency in court‑fees."

4. Against the above judgment and decree, the appellants filed above civil revision, which was dismissed by the learned Judge in chamber through the judgment under appeal. On Issue No.1, the following finding was recorded by the High Court: "The contention was that the statement of net profits Exh.D.3 brought on the record by the petitioners‑vendees was totally ignored as against the one Exh.P.2 tendered by the respondent/pre‑emptor. There is no substance in the contention because Exh.D.3 did not relate to the two crops grown in the year immediately preceding the presentation of plaint. Instead it related to Kharif, 1976 and Rabi 1977, whereas the suit having been instituted on 25‑3‑1979, the table should have been relatable to Kharif,1978 and Rabi, 1979. The table Exh.P./2 produced by the respondent/pre‑emptor exactly covered these two crops and the Courts below rightly acted thereupon. According to it the net profits came to Rs.551 per annum and fifteen times hereof come to Rs.8,265 which amount being less than Rs.25,000 did not require any court‑fee." Thereupon, the appellants filed a petition for leave to appeal, which was granted to consider the above question.

5. We have heard Mr. Agha Taj Muhammad, learned ASC appearing for the appellants, and Mr.Hasan Ahmad Khan Kanwar, learned counsel appearing for respondent No.

1. We have also perused the record. It seems to be an admitted position that Exh. P.2 produced by respondent No.1 does not relate to Marif 1978 and Rabi 1979, but pertains to Kharif 1977 and Rabi 1978 as was held by the learned Civil Judge and, therefore, the same could not have been accepted for the purpose of determining the amount of court‑fee. However, at the same time, the plaint of respondent No. 1's suit could not have been rejected under Order VII, Rule 11, C.P.C. as the Court was obliged to grant her time for the payment of proper court‑fee, as has been held by this Court in the case of Siddique Khan and 2 others v. Abdul Shakur Khan and another (PLD 1984 SC 289), the relevant portion of which reads as follows:- "The combined effect of the rule laid down by this Court in the cases of Muhammad Nawaz Khan and Shah Nawaz would thus be that in cases of deficient court‑fee which would include in the context of now amended law, certain exemptions in this behalf, the Court on discovery of an omission/error in valuation of deficiency fn court‑fee, shall acting under Order VII, rule 11 (b) and (c) allow time to the plaintiff to make correction and supply the deficiency, If he does so then the plaint shall be deemed `to have been validly filed on the date of the original presentation notwithstanding the fact that the court‑fee was supplied after the expiry of the period of limitation. If however the plaintiff is guilty of contumacy which term would be separately explained hereinafter and/or he commits positive act of mala fides the plaintiff could be held disentitled to further exercise of discretion under section 149 read with section 148 of C.P.C.."

6. We are, therefore, inclined to hold that it will be just and proper to set aside the judgments and decrees of the two Courts below and to remand the case to the learned Additional District Judge for deciding the appeal afresh.? The parties shall be allowed to lead evidence on the question of net profits of the relevant year and they will be entitled to urge whatever pleas are available to them under the various issues. However, there will be no order as to costs. AA./A‑1032/S ??????????????????????????????????????????????????????????????????????????????????? Case remanded.