1988 PLP 267 (MLD)

O. VII, R. 11 & S. 100--Punjab Pre-emption Act (I of 1913), S. 15--Second appeal--Vendees failing to point out factum of deficiency in court-fee by pre emptor--No case having been made out for interference m second appeal, same was dismissed as without merits. Irshad Ullah Chatha for Appellants. Iftikhar Ahmad Dar for Respondent. Date of hearing: 4th June, 1988. The respondent Mst. Aisha Bibi filed a suit for possession through pre -emption with regard to sale of 7 Kanals of agricultural land situated in village Nokhar, tehsil Gujranwala. Therein the valuation for purposes of court-fee was mentioned as Rs. 1,500 as the 15 times of the net profits accrued during the period of one year preceding the representation of plaint and court-fee worth Rs. 150 was paid thereon. The vendee-defendants contested the suit on 'the plea, among others, that the plaint is under-valued and also under-stamped. They, however, did not either mention any valuation of their own nor specified the deficiency of court-fee. A total of six issues including that of the relief were set down for trial and in the course thereof parties led their evidence upon the consideration whereof trial Court decided all the issues in favour of the plaintiff and decreed her suit by the judgment dated 18-3-1979 by requiring the decretal amount to be deposited on or before 15-5-1979. She was further directed to produce on 30-4-1979 the statement of net-profits so that if the Court-fee already paid by her be deficient then she will make up the deficiency by 15-5-1979.

2. In an appeal there against filed by the vendee-defendants, they contested issue No. 1 alone relating to Court-fee. A learned Additional District Judge heard the appeal and noticed that the plaintiff had made up the deficiency of Court-fee within the time granted by the trial Court who, he held, had taken a correct view of the power vested under Order VII, Rule 11 of the C.P.C. In consequence, he dismissed the appeal on 6-11-1979 in view of the validating provision made in Section 149 of the C.P.C.

3. The vendees have now come up to this Court in this Second Appeal to canvass their view with regard to Court-fee alone but it deserves to be noticed that neither had any of the two Courts below either determined the deficiency or required the plaintiff to provide Court-fee of any specified value for making up the same nor has even the learned counsel for the appellants been able to point out the deficiency with accuracy and hence neither the penal provision made in Order VII Rule 11(b) of the C.P.C. gets attracted nor can the plaintiff be said to have acted either negligently or contumaciously to become disentitled to the exercise of discretion in her favour and muchless does this case fall within the purview of clause (c) of Rule 11 (ibid) because the court-fee paid by the plaintiff is of a value more than that required on the stated valuation.

4. No other issue has been contested before me.

5. Result of the foregoing is that there is no case made out for interference. This Second Appeal has no merit and the same is accordingly dismissed with costs. AA./G-159/L.