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First Appeal from Original Order No. 7 of 1983, decided on 7th November, 1983.

‑‑O. VII, r. 11‑Court Fees Act (VII of 1870), S. 7 (vi)‑Punjab Pre‑emption Act (I of 1913), S. 15‑Court‑fee‑Net profit Lower appellate Court failing to give specific finding on question as to whether controversy with regard to net profit was raised bona fide by respondents‑plaintiff and if not what was its effect Case remanded for determination of question afresh in accordance with law.

Muhammad Zafar Chaudhry for Appellants.

Ch. Muhammad Anwar Bhinder for Respondent.

Date of hearing :7th November, 1983.

This first appeal arises out of the order, dated 2nd December, 1982 of the learned Additional District Judge, Lahore, whereby he set aside the judgment and decree, dated 20th September, 1980 of the trial Court rejecting the plaint of the respondent‑plaintiff.

2. The facts relevant for the disposal of this appeal, as per record, are that Mst. Bushra Fazal, respondent‑plaintiff, on 15th January, 1979 filed a suit for possession by pre‑emption of the disputed land situated in Shahdara ostensibly sold for Rs. 50,000 vide registered sale‑deed dated 18th January, 1978 by Nisar Ahmad Shah in favour of the appel lants. The plaint was stamped with a court‑fee of Rs. 2 only as the juris dictional value was fixed at Rs. 6,496.95, which was exempted from court- fee on the basis of net profits. The learned Civil Judge by order, dated 16th January, 1979 summoned the defendants who appeared on 21st July, 1979 and filed written statement. During the pendency of the suit on 23rd September, 1979 the appellants‑defendants filed an application before the trial Court for deciding the question of court‑fee, which was dismissed on 5th November, 1970. A review petition was filed against this order on 7th May, 1980, which was accepted by order dated 18th June, 1980 by the trial Court, ordering the plaintiff to make up the deficiency of Rs. 3,750 till 28th June, 1980. The respondent‑plaintiff made good the de ficiency on 26th June, 1980. The appellants‑defendants made an applica tion on 28th June, 1980 for rejection of the plaint under rule 11 of Order VII, Code of Civil Procedure (V of 1908), which was accepted on 20th September, 1980. The respondent‑plaintiff filed an appeal against this order before the learned District Judge, Lahore. The appeal was accepted on 2nd December, 1982 by the learned Additional District Judge and the case was remanded to the trial Court for further proceedings in accord ance with law.

3. The impugned order is based on the assumption that there was no controversy with regard to net profits and the appellants rightly made up the deficiency within the time fixed by the trial Court in the exercise of its discretion under section 149, Code of Civil Procedure. The learned Additional District Judge relied upon Muhammad Sharif v. Khurshid Ahmad (P L D 1982 Lah. 226) Hafiz Hasan Muhammad v. Abdul Hameed (P L D 1982 S C 159) wherein it was held that where the plaintiff has made good the deficiency in court‑fee within the time allowed by the Court under section 149, Code of Civil Procedure, 1908, the plaint shall have the same force and effect as if the requisite court‑fee has been paid in the first instance.

4. Learned counsel for the appellants contends that the precedents relied upon by the learned Additional District Judge were not attracted to the facts of this case because it is not the case that the plaintiff had failed to make up the deficiency within the time allowed by the Court but the controversy is that the plaintiff with a mala fide and fraudulent inten tion annexed statement of net profits with the plaint notwithstanding the fact that the disputed plot was not agricultural land. The precise submission is that the controversy as to net profits was artificially raised by the respondent‑plaintiff and therefore, presentation of plaint with a rediculously inadequate court‑fee of Rs. 2 was ex facie contumacious and mala fide in the light of the ratio laid down in Mst. Walayat Khatun v. Khalil Khaln.

5. Ch,. Muhammad Anwar Bhinder, learned counsel for the respondent submitted that the learned Additional District Judge has recorded a finding after appreciating the evidence on record that the respondent‑plaintiff was not guilty of contumacy in making up the deficiency in court‑fee and therefore, the rejection of the plaint by the trial Court was not valid. He further submitted that the provisions of rule 11 of Order VII, Code of Civil Procedure, were not attracted in this case, inasmuch as, the plaint under the said provision could only be rejected if the relief claimed is under valued and the plaintiff on being required by the Court to correct the valuation within a time to be fixed by the Court fails to do so. It is submitted that the plaintiff was required to pay the court‑fee and the same was paid within the time fixed by the Court and therefore, there was no question of contumacy.

6. Having considered the submissions of the learned counsel for that parties at length, perusing the judgments cited at the bar and the record I am inclined to hold that the learned Additional District Judge ought to have given a specific finding arising out of the pleadings of the parties as to whether the controversy with regard to the net profits was bona fide raised by the respondent‑plaintiff, if not what was its effect. This having not been done I deem it proper to remand the case for determination of this matter afresh in accordance with law. To this extent only the appeal is accepted but there shall be no order as to costs. The parties are directed to appear before the learned District Judge, Lahore, on 16th November, 1983. It is expected that the appeal shall be decided as expeditiously as possible.

M.Y.H Case remanded.

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