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Regular First Appeal No.234 of 1980, decided on 6th April, 1985.

---S.21--Civil Procedure Code (V of 1908), S.149 & O.VII, r.11--Suit for pre-emption--Trial Court not affording opportunity to plaintiff to make up deficiency in court-fee--Held, it was imperative for trial Court to have allowed time to plaintiff to make up deficiency in court-fee. Siddique Khan and 2 others v. Abdul Shakur Khan and another P L D 1984 S C 289 rel. Mst. Walayat Khatun v. Khalil Khan and another P L D 1979 S C 821 ref.

---S.21--Civil Procedure Code (V of 1908), 5.149 & O.Vll, tell--Deficiency in court-fee--Case remanded for fresh determination of court-fee with direction to afford opportunity to plaintiff to make up deficiency as determined by trial court--Question of court-fee, it was further directed not to be treated as preliminary but should be decided with other issues on merits--While remanding case, refund of amount paid as court-fees on memorandum of appeal was also ordered. Ch.Mushtaq Ahmad Khan for Appellant. Ch. Muhammad Hussain-I for Respondent. Date of hearing: 6th April, 1985.

--Ch.Muhammad Nawaz, appellant herein, through this regular first appeal has challenged judgment and decree dated 4-11-1980 of the learned Civil Judge, Duska whereby he dismissed appellant's suit for possession of the disputed property instituted in exercise of his right of pre-emption. 2. The relevant facts giving rise to this appeal are that land measuring 87 Kanals 7 Marlas situated in village Kotha Chishtian Tehsil Daska, District Sialkot alongwith a house (hereinafter referred to as property in dispute) was alienated by Muhammad Aslam through registered saledeed dated 28-3-1972 for a consideration of Rs.50,000 in favour of Ch. Muhammad Hussain respondent. On 27-3-1973 the appellant instituted suit for possession of the disputed property claiming his superior right of pre-emption. The suit was contested by the respondent. He raised an objection to the effect that the suit was improperly valued for the purpose of court-fee and deficient court-fee was paid thereon. The learned trial Judge treating the aforesaid objection as preliminary, decided the same and dismissed the suit vide the impugned judgment and decree. It was held that the plaintiff/appellant was negligent in evaluating the suit for purpose of court-fee and contumaciously affixed deficient court-fee on the plaint.

3. Learned counsel for the appellant contended that the learned lower Court neither correctly evaluated the suit for the purpose of court-fee nor provided the plaintiff opportunity to make up deficiency in the court-fee. It was further submitted that the trees, garden and vegetables formed part of land and were not required to be assessed separately for calculating court-fee payable by the plain+iff. In support of his submission he relied on Siddique Khan and 2 others v. Abdul Shakur Khan and another P L D 1984 S C 289. It was contended that the authority relied upon by the learned trial Court viz. Mst. Wallayat Khatun v. Khalil Khan and another P L D 1979 S C 821 was not attracted in the circumstances of the present case. Learned counsel lastly prayed for refund of the amount paid by the appellant on the memorandum of appeal.

4. Learned counsel appearing on behalf of the respondent on the contrary argued that the plaintiff deliberately under-valued the suit for the purpose of court-fee and affixed deficient court-fee on the plaint. He supported the impugned judgment and decree passed by the learned Civil Judge, Daska.

5. We have heard learned counsel for the parties and have perused the impugned judgment and decree in the light of the available record on the file. Undoubtedly, the learned trial Judge did not afford any opportunity to the plaintiff/appellant to make up deficiency in court-fee determined by him. It was imperative for the learned trial Court to have allowed time to the plaintiff to make up deficiency as envisaged in Siddique Khan's case, cited above. The impugned judgment and decree of the learned trial Court is liable to be set aside on this ground alone and we order accordingly.

6. We have not expressed any opinion on the merits of the contention raised by learned counsel for the appellant as to whether the value of the suit property for the purpose of court-fee was rightly determined by the learned trial Judge or not, lest it may prejudice the case of either party. We remand this case to the learned trial Judge for fresh decision on the question of the valuation of the suit for the purpose of court-fee with a direction to him to afford opportunity to the plaintiff to make up deficiency in court-fee so determined by him. He shall not treat the aforesaid question as preliminary and shall decide all issues already framed together on merits. We also direct refund of the amount of court-fee paid by the appellant on the memorandum of appeal.

7. There shall be no order as to costs.

A.A. Appeal allowed.