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Civil Petition No. 1105 of 1979, decided on 24th February, 1985.

(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 17‑10‑1979 in R.F.A. No. 98 of 1978).

Constitution of Pakistan (1973)‑‑

‑‑‑Art. 185(3)‑‑Court Fees Act (VII of 1870), Ss.9 & 10‑‑Punjab Pre‑emption Act (I of 1913), S.21‑‑Civil Procedure Code (V of 1908), O.VII, r.11 & 5.149‑‑Suit for pre‑emption‑‑Court‑fees‑‑Deficiency of‑ Incorrect statement of net profits for determination of court‑fees‑ Negligence of pre‑emptor with mala fide objective‑‑Penalised by rejection of plaint under 0. VII, r. 11, C.P.C.‑‑Challenged‑‑Method adopted for disposal of case disapproved by High Court‑‑Application of mind to facts of case and recourse to relevant provisions of law necessary‑‑Order set aside with direction to proceed afresh for determination of exact court‑fees‑‑Plea raised in Supreme Court that circumstances justified penalty of rejection of plaint, held, not tenable in view of recent decisions of Court‑‑Impugned order being in conformity with law laid down earlier, leave to appeal refused.

P L D 1977 Lah. 1422 and 1972 S C M R 179 ref.

Shahna Khan v. Aulia Khan and others P L D 1984 S C 157; Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 S C 289 and Gulzar Hussain v. Abdur Rehman and another 1985 SCMR 301 rel.

Sh. Ghias Muhammad, Senior Advocate Supreme Court and S. Inayat Hussain, Advocate‑on‑Record for Petitioners.

M.A. Qureshi, Advocate‑on‑Record for Respondents.

Date of hearing: 24th February, 1985.

While rejecting the plaint under Order VII, rule 11, C.P.C. the trial Court remarked as follows:‑

"The law clearly dictates, that in pre‑emption suits, court‑fee is to be paid on fifteen times, the net profits preceding the year of the institution of the suit. There is, therefore, no ambiguity and consequently, no Local Commissioner is required to be appointed for ascertainment of the proper court‑fee. Per facts and circumstances of the case, the plaintiff is not only negligent, but his conduct envisages positive mala fides as he got the chart of net profits prepared of his own choice and endeavoured to save the court‑fee. P L D 1977 Lah. 1422 and 1972 S C M R 179 relied by the learned counsel of the plaintiff, are not of any help to him inasmuch as, the same do not over rule the principles that a negligent pre‑emptor with mala fide objective must face penalty in the form of rejection of his plaint.

In view of what has been stated above, the application under sections 9 and 10 of the Court Fees Act, made by the plaintiff Malik Jan Muhammad stands rejected. While the application under Order VII, rule 11 of the C.P.C., made by the rival pre‑emptor/ defendant No. 7 named Malik Rasul Bakhah is allowed and consequently, the plaint under suit, stands rejected. Parties to bear their own costs."

Accepting the appeal against rejection of the plaint, the learned Judges in the High Court observed as follows:‑

"It appears that the learned trial Court instead of going deep in the matter‑‑ascertaining correct facts and various provisions of law applicable thereto, resorted to the easy method of disposal of the case by rejecting the plaint under Order VII, rule 11, C.P.C., may be on account of the requirement of giving certain amount of units of disposal per month and the month was closing being 25th of February, but this is obviously wrong way to go about to show doubtful efficiency at the expense of law and justice. No more need be said in this behalf. The circumstances of the case clearly called for application of mind to the facts of the case and recourse to the relevant provisions of law enumerated above.

In view of what has been stated above, there is no option but to allow this appeal and set aside the order, dated 24‑2‑1978 of the learned trial Court. He is directed to proceed afresh to determine the exact court‑fee payable by getting the net profits prepared accurately and take action under section 10 of the Court Fees Act. Since the matter involved application of various provisions of law and decisions to the facts of the case, the parties are left to bear their own costs."

The petitioners seek leave to appeal with a view to get the order of the trial Court restored. Sh. Ghias Muhammad, the learned. counsel for the petitioner contended that the circumstances were indeed such as to justify the penalty as was imposed by the trial Court.

As decisions of this Court have in the meantime come in the cases of Shahna Khan v. Aulia Khan and others P L D 1984 S C 157, Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 S C 289 and Gulzar Hussain v. Abdur Rehman and another 1985 SCMR 301 and the impugned judgment is in conformity with the law laid down by this Court, we do not consider it to be a fit case for grant of leave to appeal. The petition is, therefore, dismissed.

M . I . Petition dismissed.

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