1988 PLP 878 (SCMR)

USMAN ALI SHAH, J.‑‑This appeal is directed against the judgment and order, dated 1‑7‑1985, of the Lahore High Court, Multan Bench, whereby the appeal of the respondent No.1 against the judgment and decree of the learned trial Judge dated 11‑6‑1979 was accepted. Briefly the facts of the case are that Hassan Yar Jang was the owner of the land in dispute measuring 138 Kanals and 7 Marlas, situate at Chak No.164/10‑R, Tehsil Khanewal who sold the said land to Muhammad Sharif respondent No.2, through a registered sale‑deed, dated 4‑6‑1973 for an ostensible consideration of Rs..1, 32,

000. Later on respondents Nos.2 to 5 transferred through sale their shares to the appellants Nos.1 and 2 in recognition of their superior rights of prior purchase. Muhammad Rafiq on 9‑4‑1973 instituted a suit for possession by pre‑emption, claiming to be a co‑sharer in the Khata, on payment of Rs.82,

000. After framing the issues and concluding the evidence, plaintiff (respondent No.1 herein) moved an application under section 149, C.P.C. on 12‑4‑1978 for making up the deficiency in the court‑fee. This application was rejected on account of negligence and limitation. The situation which was admitted by both the parties in this suit is that in para. 7 of the plaint, the plaintiff had valued his suit for the purpose of court‑fee, on the basis of the annual net profit of Rs.36,000 and the market value of the orchard was assessed at Rs.40,

000. So, the valuation of the suit for the purpose of court‑fee and jurisdiction amounted to fifteen times of Rs.76,863.70. Subsequently, the plaintiff prepared a statement of net profits (Exh.P.5) for the entire Khata measuring 278 kanals, whereas the land in dispute was only measuring 138 Kanals and 7 marlas. According to the statement of the annual net profits for the entire khata was amounting to Rs.71,785.50 and a court‑fee stamp of Rs.5,385 had to be affixed on the plaint. But the plaintiff had affixed court‑fee stamp worth Rs.2,234 on the plaint, at the time of institution. On the night of 8/9‑2‑1975 the Court record including the file of this case, of the learned Civil Judge Khanewal was set ablazed. The file of this case was reconstructed and it appears that issues were again framed on 5‑11‑1975. The learned trial Judge rejected the plaint for the reason that insufficient court‑fee stamps were affixed on it as well as on the question of bar of limitation and dismissed the suit with costs, vide his judgment, dated 11‑6‑1979. The plaintiff being aggrieved by the said judgment, filed‑an appeal before the High Court. The learned Judges of the High Court came to the conclusion that the pre‑emptor could not make up the deficiency in the court‑fee because the file had been burnt and that the plaint though obviously under stamped but it was the duty of the trial Court to have issued a definite order for making up the deficiency of the exact amount and in case it was not made up then the provisions of Order VII, Rule 11 of the Civil Procedure Code should have been resorted to. But it was a fit case wherein the pre‑emptor should have been given an opportunity to make up the deficiency in the court‑fee, but no opportunity was ever granted to the pre‑emptor nor the deficient amount of the court‑fee was ever assessed by the learned trial Court. The learned High Court under the circumstances accepted the appeal of the plaintiff (respondent No.1), set aside the judgment and decree and remanded the case back to the trial Court for a fresh trial on merits with the direction for definite assessment of valuation of the suit for the purposes of the court‑fee and jurisdiction and then to allow one opportunity to the pre‑emptor to make up the deficiency of the court‑fee, or in default thereof make an appropriate order. We have heard the learned counsels for the parties, the point of limitation, in our view, in the case in hand is immaterial. We, therefore, find no flaw in the impugned judgment of the High Court and the same needs no interference and hence the appeal is dismissed with costs. M.I. /M‑353/S???????????????????????????????????????????????????????????????????????? Appeal dismissed.