1989 PLP 1486 (CLC)

defendant?. (3) Whether the plaintiffs have waived the superior right of pre‑emption? (4) Whether the suit is within period of limitation? (5) Whether Rs.16,00 was fixed in good faith or actually paid as sale price of the suit land? (6) What was the market value of the suit land at the time of sale? (7) Whether the vendee defendant has made improvement on the suit land, if so to what extent and its effect? (8) Whether the vendee‑defendant is entitled to additional charges of registration, if so to what extent? (9)Relief."

2. The parties led their respective evidence. The trial Court vide judgment and decree dated 7th of April, 1981, rejected the plaint. The respondents impugned this judgment and decree through an appeal in the Court of District Judge, Multan, who entrusted the appeal for decision to one of his Additional district Judges, who accepted the appeal vide judgment and decree dated 22‑12 1982, set aside the judgment and decree of the Court below and decreed the suit.

3. The petitioner has now impugned the judgment and decree of the lower appellate Court through the present revision petition, which was admitted to hearing, notices were issued to the respondents. It is argued by the learned counsel for the petitioner that the plaint was presented on 8th of April, 1976. The same came up for hearing on 10th of April, 1976, when the learned trial Court directed him to furnish statement of net profits so the court‑fee payable on the plaint could be worked out. The suit was adjourned to 11th of May, 1976. The plaintiff submitted schedule of net profits on 10th of May, 1976 and also court‑fee of Rs.510. The grievance of the learned counsel for the petitioner is that a court fee of Rs.775 was payable whereas the plaintiff had paid in all Rs.525 (Rs.15 on the original plaint + additional court‑fee Rs.510 was supplied on 10‑5‑1976). This way there existed a deficiency of Rs.250 which the plaintiff for almost 5 years failed to make up. It is added that since the conduct of the plaintiff was contumacious, therefore, he was not entitled to any indulgence. Therefore, his application under sections 148 and 149 C.P.C. and plaint were rightly rejected by the trial Court.

4. On the other hand, the learned counsel for the respondents has argued that since deficiency in court‑fee was not worked out at any stage by the trial Court, therefore, the plaint could not have been rejected. He has in this behalf referred to provisions of Order VII, rule 11 C.P.C. and placed reliance on the case of Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289 and Muhammad Yasin and another v. Fajar Ali 1984 CLC 342&.

5. I have given my anxious considerations to the arguments of learned counsel for both sides and gone through the record as well as the law and precedents. It is clear from the order dated 10th of April, 1976, that the plaintiff was only required to furnish schedule of net profits for the land in dispute so the court‑fee payable on the plaint could be worked out. This is a matter of record that the plaintiff complied with this direction but thereafter trial Court was not alive to its duty. It at no stage proceeded to determine the court‑fee and direct the plaintiff to make up the deficiency in the same. The conduct of the plaintiff is that he himself furnished the additional court‑fee of Rs.510 thereafter neither the trial Court nor the petitioner ever bothered about the matter till the suit was fixed for arguments. I, therefore, respectfully following the dictum of Hon'ble Supreme Court in the case of Siddique Khan uphold the order of the lower appellate Court. The trial Court proceeded illegally to reject the plaint without determining the court‑fee payable and granting time to the plaintiff to make up the deficiency. The relevant portion of the judgment reads as under:‑‑ "Before proceeding further so as to comment upon this case of Mst. Walayat Khatun it is necessary to clarify another confusion regarding interaction of Order VII, rule 11 (c) and section 149, C.P.C. It has been held in the afore analysed cases that it is obligatory to grant time for supply of deficiency in court‑fee before rejecting the plaint under Order VII, rule 11 (c). It is discretionary however to grant time under section 149, C.P.C. As has already seen when explaining contumacy, it is not lawful to reject a plaint under Order VII, rule 11 (c) without first granting time to the plaintiff to supply the deficient court‑fee. Order VII, rule 11 is in a way a penal provision and shall be construed strictly so as not to be resorted to unless the conditions for exercise of such drastic power are satisfied. In the clause relevant here namely (c) it is provided that the plaint shall be rejected there under only when after the grant of requisite time the plaintiff has failed to supply the required/specified court‑fee. Thus, it is mandatory and obligatory for the Court to grant time under clause (c). The question of discretion does not arise. And it is so whether the occasion arises at the very institution of the plaint or at a later stage." Then the other argument of the learned counsel for the petitioner was that since the petitioner was a tenant of the land, therefore, had a superior right to that of the plaintiff. The learned counsel in this behalf has referred to Exh.D.l, which is copy of Rapat No.413 dated 29‑6‑1976 wherein order of the Collector dated 22‑6‑1976 has been incorporated through which the name of the petitioner was allowed to be mentioned as tenant. It is added that the respondents filed an appeal, which was dismissed through order wich is EX. D. 3 on record.

6. On the other hand, the learned counsel for the respondents has argued that the story of tenancy was concocted in order to make a plausible defence in the suit for possession through pre‑emption. The same is not permissible. The learned counsel in this behalf has referred to case of Muhammad Safdar Ali Iqbal v. Sher Muhammad and 2 others 1980 CLC 520 wherein it was held that application for correction of Khasra Girdawari would amount to interference with cause of justice, therefore, the same is to be ignored. It is further added by the learned counsel for the respondents that in fact petitioner was not a tenant and this order of alleged correction of Khasra Girdawari was secured by underhand means. The learned counsel for the respondents in this behalf has referred to sale‑deed Exh.D.4, according to which the possession was delivered to the petitioner on 8th of April, 1976. It is not mentioned in the sale‑deed that petitioner is already in possession as a tenant.

7. The other objection was that the petitioner had purchased fraction of the share in joint Khata. The total Khata measuring 91 Kanals 4 Marlas out of which the petitioner purchased 320/1824 and in terms of area 16 Kanals, therefore, the petitioner cannot be deemed to be tenant of the land so purchased. 8. 1 have given my anxious considerations to the arguments of the learned counsel for the parties. There is great weight and merit in the argument, of the learned counsel for the respondents that the absence of mention of factum of tenancy in the sale‑deed makes the plea of tenancy doubtful. In this behalf reference can be made to the case of Allah Bakhsh and another v. Muhammad E Habib Ullah Khan 1985 MLD 1493. It is also correct that there is no question o‑f claiming superior right as a tenant when the sale is of a part of Khata. I have already dealt with this question at length with reference to law declared by the Hon'ble Supreme Court in the case of Lai Khan v. Faiz Ahmad and another 1986 SCMR 1962. The relevant portion of my judgment in Civil Revision 658‑D of 1987 titled as Muhammad Ramzan etc. v. Abdul Shakur decided on 18‑2‑1989, reads as under:‑ (10) It may be added here that if the argument of the learned counsel for the petitioner, that since the petitioners were tenants of particular piece of joint Khata, therefore, they had become owners of the land, is accepted then it will amount to effecting partition of the Joint Khata without hearine all owners. This of course will not once be illegal and without jurisdiction but also beyond the scope of suit. The learned counsel for the petitioners, on the other hand, referred to case of Muhammad Zaman v. Tariq Mahmood etc. 1982 CLC 2665, in support of his contention that right of pre‑emption is one of substitution and as such tenants‑petitioners will take over, whatever right vendees had in the land sold out of joint Khata. There is no scope of this argument after the decision of Hon'ble Supreme Court in the case of Lal Khan, which is the latest in time." (1986 SCMR 1962).

9. The result is that there is no merit in this revision. The same is dismissed. However, there is no order as to costs. AA./H.‑112/L Revision dismissed. .