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First Appeal from Original Order No. 172 of 1979, decided on 27th May, 1979.

--Ss. 9 & 10-Suit, valuation of-Deficient court-fee -Trial Court only ordering plaintiff to file statement of net profits by a fixed date so as to enable determination of correct court-fee-No direction, however, given for supply of court-fee by fixed date Order of trial Court dismissing respondent's suit on ground of non-payment of court-fee in time, held, misdirected.-[Court-fee].

Rahim Bakhsh v. Muhammad Bakhsh and 2 others P L D 1976 Lab 6816 ; Bahadur Shah and others v. Sharaf Major and others P L D 1967 Lah. 154 ; Muhammad Nawaz Khan and another v. Makhdoom Syed Ghulam Mujtaba P L D 1970 S C 37 ; Mehr Allah Ditta and another v. Muhammad All and another P L D 1972 S C 59 and Malik Hayadat Ullah.,and 2 others v, Yurad All Khan P L D 1972 S C 69 ref:

Muhammad Sarwar for Appellant.

A defendant has, through this appeal challenged the order of learned lower appellate Court whereby the order of learned trial Court dismissing the respondent's suit for pre-emption, on the ground of non-payment of Court-fee in time was reversed,

2. I have perused the photostat copy of the order-sheet passed by the learned trial Court. On 6-5-1977. the office had reported that the statement of account of net profits was not filed with the plaint, there fore, it was not possible to check the correctness of the court-fee paid by the plaintiff. On this the learned Judge, on appearance of the counsel for the respondent (plaintiff), directed issuance of notice to the defendant and deposit of one-fifth of the pre-emption money as also production of the statement of account of net profits before 9-6-1977. On the next date of hearing, it was noted that the defi ciency in court-fee in accordance with the statement of net profits was supplied on 9-6-77. The case was adjourned for submission of written statement to 6-7-77. After some more adjournments, the follow ing issues were framed :--

"(1) Whether the suit is time-barred O. P. D.

(2) Whether the suit is for partial pre-emption, if so, its effect O. P. D.

(3) Whether the plaintiff has superior right of pre-emption qua defendant O. P. D.

(4) Whether the ostensible sale price of Rs. 22,000 was fixed in good faith or actually paid O. P. D.

(5) If issue No. 4 is not proved, what was the actual market value of the suit land at the time of sale O. P. P.

(6) Whether defendant is entitled to registration expenses, if so to what extent O. P. D.

(7) Whether the suit is incorrectly valued for the purposes of Court fee, if so, what is the correct valuation O. P. D.

(8) Relief."

On 14-12-1977, the learned trial Judge treated Issues Nos. 1 and 7 as preliminary and on assumption that on 6-3-1977 the plaintiff was ordered to supply the statement of net profits as also the deficiency in Court fee before 9-6-1977, held, that the respondent (plaintiff) had failed to do o, therefore, it would tie deemed that his suit was, filed on 9-6-77 on the day of supply of court-fee and the statement of net profits and that being so, the same had become time-barred. Accordingly, deciding both the Issues Nos. 1 and 7 affirmatively, the learned trial Judge dis missed the suit.

3. The learned lower appellate Court observed that "in the present case, as already discussed above, the Court had only ordered to file the statement of annual net profits before 9-6-1977. After the receipt of the said statement, it was the duty of the Court to work out the correct valua tion of the suit land and direct the -plaintiff to make up the deficiency; if any by a date to be fixed by it, but this procedure has not been adopted in this case. "And relying on the provisions contained in sections 9 and ]0 of the Court Fees Act; learned lower appellate Court held that it was open to the Court, if there was any doubt with regard to the correct court-fee, to determine the same and then direct the plaintiff to make up the deficiency. As the plaintiff was in fact, not directed to make up the deficiency before 9-6-77, the assumption of the learned trial Judge otherwise was contrary to facts and law, Accordingly the learned District Judge allowed the appeal.

4. Learned counsel for the appellant (defendant) has relying on Rahim Bakhsh v. Muhammad Bakhsh and 2 others (P L D 1976 Lah. 686), contended that the right of pre-emption being predatory and piratical in nature, a pre-emptor (plaintiff) is not entitled to any concession. Learned counsel contended that although there was no direction for supply of the deficiency in court-fee and that the learned trial Court ordered the plaintiff only to produce the statement of annual net profits but in view of the fact that the plaintiff had filed the suit when limitation was going to expire with deficient court-fee, it was rightly dismissed.

5. Learned counsel has frankly stated that the learned trial Court had omitted to determine the actual correct court-fee. It is also an admitted position that the only direction given by the learned trial Court was regarding supply of the statement of net profits before 9-6-77 under the assumption that after the supply of the said statement the amount of correct court-fee would be determined for purpose of further action and proceedings. As there was no direction for supply of court fee before the date fixed, the entire approach of the learned trial Judge in the order impugned in first appeal was misdirected. The learned lower appellate Court was fully justified to make the correction. The ruling cited by the learned counsel is distinguishable on account of the aforenoted features of this case. Moreover, it appears that the effect of sections 9 and 10 of the Court Fees Act as discussed in Bahadur Shah and others v. Sharif Major and others (P L D 1967 Lah. 154) and the effect of Muhammad Nawaa Khan and another v. Mokhdoom Syed Ghulam Mujtaba (P L D 1970 S C 37) (which were not cited in the case of Rahim Bakhsh) was not noticed. It cannot be said that the reference by the learned lower appellate Court to the said provisions was irrelevant. It is true that in some authorities, the right of pre-emption has been described as predatory and or piratical; but it is doubtful whether if we give up the norms of English jurisprudence in this behalf and follow the Islamic jurisprudence and philosophy, it would be justified to use these expressions to describe. this right. Moreover, rights under statutory law, the Supreme Court has not approved this- approach. See Mehr Allah Ditta and another v. Muhammad Ali and another (PLD1972SC59) and Malik Hadayat Ullah and 2 others v. Murad Ali Khan (PLD1972SC69).

(6) The impugned order of remand is well reasoned and is un exceptionable. There is no justification for interference. Dismissed in limine.

M. Y. M. Appeal dismissed.

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