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‑‑.‑ Ss. 9 & 10‑Punjab Pre‑emption Act (I of 1913), S. 21 and Civil Procedure Code (fit of 1908), O. VII, r. 11‑Valuation‑‑Suit for possession by pre‑emption‑ Situation of suit for purpose of court‑fee and jurisdiction fixed by respondent as also .amount of court‑fee paid on plaint admitted by appellants to be correct in their written statement‑‑No mala fides, held, could be presumed on part of respondent nor he could be branded with charge of commission of contumacious negligence in matter of payment of court‑fee‑ Case not being of positive mala fide penalty of rejection of plaint, held further, not warranted.

Malik Jan Muhammad v. Shukaruddin 1980 C L C 186 rel.

G. Haider Asghar ali for Appellants.

This appeal against the order of the learned District Judge, Lahore, dated the 14th October, 1980, accepting respondent 1's appeal against the order of the learned Civil .fudge, Lahore, dated the 13th November, 1979, dismissing her suit for possession by pre‑emption of 29 ,Kanals of land in dispute situate in the area village janjatey, tehsil and district Lahore, under Order VII; rule 1 I of the Code of Civil Procedure and remanding the case to the learned trial Civil Judge arises out of the following circum stances. On the 16th July, 1973, Muhammad Rafiq and Muhammad Sbafi sons of Jalal Din, appellants, purchased the land from Hassan Muhammad Khan, respondent 3, husband of Mar. Batoolan Bibi, respondent 1, by mans of a registered sale‑deed. On the 9th July, 1974, respondent I instituted suit for possession by the pre‑emption of the land in question in Civil Court, Lahore. In the plaint she valued the cause for purposes of court‑fee and ,jurisdiction at Rs. 34500, being fifteen times the net profits of the land, and paid court‑pee accordingly thereon. The appellants in their written statement admitted the valuation‑.of the suit as fixed by respondent 1 to be correct. Till the time the suit came up for hearing of find a arguments the appellants did not raise any objection touching incorrectness of the value of the suit as originally stated by respondent I lea the plaint. It was on the lath September, 1978, when the learned trial judge was to bear final arguments that he passed order directing respondent 1 to correct the value of the case according to fifteen times the net profits of the land for the year next before the institution of the suit and rake up deficiency in court‑fee by the 15th October,' 1978. No order calling upon respondent I to pay up deficiency in court‑fee was made by the learned trial girt e tine last mentioned date.

2. The appellants challenged the learned trial Court's order dated the 16th September, 1978, in revision before the learned District Judge, Lahore, who set aside the order on the ground that it being a suit for pre‑ emption a valuable right of limitation had accrued to the appellants and that the same could not be denied by allowing respondent 1 to pay court fee. He remanded the case to the learned trial Court for further proceed ings and thereupon the learned trial Court dismissed the suit as it had no other option.

3. In appeal preferred by respondent 1 the learned District Judge, following the rule laid down in Malik Jan Muhammad v. Shukaruddin (1980 C L C 186) considered that in view of the provisions of sections 9 and 10 of the Court Pees Act, 1870, the learned trial Court was obliged to stay the proceedings of the suit to enable respondent I to pay court‑fee by a given date and consequently reversed the decision of the learned trial Court. Feeling aggri eved the appellants have come up in appeal to this Court.

4. The learned counsel, relying upon the law laid down by the Sup reme Court in Mst. Walayal Khatun v. Khalil Khan (P L D 1979 S C 821) maintained that respondent 1 had been guilty of gross carelessness and negligence in not getting the statement of net profits of the land in dispute pertaining to the year before filing of the suit prepared in time and in not paying requisite court‑fee accordingly. However, in view of the fact that the appellant admitted the value of the suit fixed by respondent 1 for the purpose o court‑fee and jurisdiction as also the amount of court‑fee paid on the plaint to be correct in their written statement, existence of any mala fides on the part of respondent I cannot be presumed. Respondent 1 cannot b branded with the charge of commission of contumacious negligence in matter of payment of court‑fee. Having not acted with positive mala fides it was not a case in which respondent I could have been visited with the harsh penalty of rejection of her plaint. Hence in these circumstances the plaint ought not to have been rejected. The order of the learned District judge is just and proper and does not demand interference. The appeal is dismissed in limine.

M.Y.H. Appeal dismissed.

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