1985 PLP 1468 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.‑‑Ghulam Haider, since deceased and succeeded by petitioners 1 to 6, Faiz Muhammad Khan predecessor -in‑interest of petitioners 7 and 8 as well as of respondents 5 to 12, and Ahmad Khan, petitioner 9, purchased the land in dispute from one Ahmed Bux by means of registered deed dated 5th February, 1973. Respondents 1 to 4 claiming superior right of pre‑emption brought a for possession by‑ pre‑emption on 1st February, 1974. When the plaint was put up before the Presiding Officer of the trim. Court on 5th February, 1974, it was ordered by the Court that Zare‑panjum Rs.13,400 be deposited on the net profits and the deficiency in court‑fee be made up until 23rd April, 1974 The plaintiffs accordingly, on the basis of net profits statement obtained by them from the revenue authorities, duly made up the deficiency in the Court‑fee within the time prescribed by the Court.

2. The suit was contested by the purchaser and among other grounds, they raised the legal pleas, relevant for the present purposes which are reflected from the following three issues framed by the Court: (1) Whether suit has not been valued properly? O.P.D.

2. Whether deficiency of court‑fee was not supplied within time? O. P. D. (3) Whether suit is time‑barred? O.P.D." The suit was then tried on the issues framed by the Court and after the close of the evidence of the parties and the conclusion of final arguments the suit was fixed for judgment on 23rd February, 1981. However, one day before the date of announcement of the judgment, the plaintiffs filed an application in which they sought permission to produce a fresh statement of net profits for the relevant period on the ground that the earlier statement of net profits submitted in Court did not pertain to the relevant period, although the value of the net profits shown therein was much higher than in the new document sought to be produced. The Court upon hearing the objections of the defendants, by its order dated 23rd May, 1981, rejected the prayer of the plaintiffs on the ground of delay as the evidence of the parties was already closed. Then by judgment dated 20th July, 1981, although the Court found the plaintiffs to have superior right of pre‑emption, dismissed the suit on the ground that the plaint was insufficiently stamped and the deficiency in court‑fee having been made up in accordance with wrong assessment of net profits, the suit suffered from the defect of the improper valuation and insufficient court‑fee.

3. On appeal, the learned District Judge disagreed with the view taken by the trial Court and held that the plaintiffs had inadvertently got prepared net profits for the year Kharif 1972 and Rabi 1973, instead of Rabi 1973 and Kharif 1973. Even so, the learned District Judge, pointed out on examining the relevant documentary evidence on record that the plaintiffs had already paid the court‑fee on valuation which was higher than the valuation worked out on the proper quantum of net profits for the relevant year. Having thus held that the plaint was properly stamped within the period prescribed by the Court, the learned District Judge reversed the decree passed by the trial Court vide judgment dated 13th April, 1983. The petitioners, representing the purchaser, then sought to challenge the judgment of the learned District Judge, in a revision before the Lahore High Court, Multan Bench, Multan, but the learned Single Judge who heard the revision petition dismissed the same in limine, following the judgment of this Court in Siddique Khan and others v. Abdul Shakur Khan and others P L D 1984 S C 289.

4. Learned counsel for the petitioners who seek leave to appeal from the judgment of the High Court mainly contended that the learned Judge in the High Court misconstrued the law laid down by this Court in the case of Siddique Khan, in that, according to the submission of the learned counsel where a plaintiff is guilty of contumaciousness and mala fide, the Court is not required to give opportunity for making up deficient court‑fee but can dismiss the suit under Order VII, rule 11, G.P.C. In support of this contention the learned counsel sought to take us to the evidence on record in order to establish that the finding of the learned District Judge regarding the quantum of net profits. For the relevant year was erroneous. This being question of fact the finding whereon was concurred in by the High Court, we see no justification to reopen this question at this stage. We also find nothing on the record in support of the argument that in submitting the statement of net profits the plaintiffs were guilty of mats fide or contumacy. We, therefore, find no substance in the contention advanced by the learned counsel.

5. The petition being devoid of merit is accordingly dismissed. M. I. Petition dismissed.