1987 PLP 3214 (MLD)

ABAID ULLAH KHAN, J.--This appeal against the order of rejection of plaint of the appellant's suit for possession by pre-emption of the land in dispute measuring 453 kanals, situate in the area of Sangatpura estate, tehsil and district Lahore, recorded by the learned Civil Judge, Lahore, on the 22nd February, 1983, arises out of the following circumstances. The respondents purchased the land in question from Mst.Tahira Zafar Hayat, Mst.Shahida Rahim Khan and Mst.Farida Zafar Siddiqi, daughters of Dr.A.K.Taufiq, by means of a sale-deed which was registered on the 27th February, 1975. Claiming himself to be in possession of right of pre-emption superior to that of the respondents on the basis of being co-sharer of the land and owner of the estate, the appellant instituted suit on the 11th February, 1976, to pre-empt the sale. He fixed the value of the cause for purposes of court-fee and jurisdiction at Rs.1,09,758 being fifteen times the net profits which had arisen from the land during the year next before the date of presenting the plaint.

2. On the 21st February, 1982, the respondents moved application under Order VII, Rule 11 of the Code of Civil Procedure for securing order of rejection of the plaint. They contended that the appellant had under assessed the value of the suit for the purpose and paid deficient amount of court-fee on the basis of net profits accruing for the crops of Kharif 1973 and Rabi 1974 whereas he was bound to evaluate the suit according to the net profits for the Rabi and Kharif crops of 1975, which had grown during the year antecedent to the filing of the suit and which profits were higher than those of Kharif 1973 and Rabi 1974.

3. The appellant, having become conscious of the fact that he was to pay court-fee on the net profits of the crops of the Rabi and Kharif 1975, moved application for permission to make up deficiency in court-fee. However, the learned trial Civil Judge formed the view that the appellant had been negligent and careless in his duty .of paying court-fee and was not entitled to indulgence for grant of time as extension in time would prejudicially effect the interests of the respondents whose title had become perfect by the expiry of time of limitation. Therefore, he rejected the plaint.

4. Indisputably -the learned Civil "Judge never passed an order determining any deficiency in court-fee payable by the appellant and never called upon him to pay the sum certain as deficient amount of court-fee by a specified date. Therefore, in view of the rule laid down by the Supreme Court of Pakistan in Siddiq Khan v. Abdul Shakur Khan P L D 1984 S C 289, the learned Civil Judge was no justified to reject the plaint. It was only after 'the learned, trial Court had determined the exact amount of deficiency in Court, directed the appellant to pay the same by a definite date and the appellant had defaulted 'to comply with the order that the plaint could have been rejected. The learned counsel for the respondents had to concede this position. The appeal is consequently accepted, the impugned order is set aside' and the suit is remanded to the learned trial Court for disposal according to law. The learned trial Court will give the suit priority over the other cases, decide it within six months and report compliance to this Court. The parties are directed to appear before the learned trial Court on the 28th November, 1987. The parties are left to bear their own costs. H . B . T. /M-454/L Case remanded.