EnglishFrenchPortugueseRussianUrdu

P L D 1984 Supreme Court 289

Present : Muhammad Haleem, Actg. C. J., Aslam R iaz Hussain, Muhammad Afial Zullah and M. S. H. Quraishi, JJ

 

SIDDIQUE KHAN AND 2 oTHERs-Appellants versus

 

ABDUL SHAKUR KHAN AND ANOTHER-Respondents Civil Appeals Nos. 104 of 1978 and 136 of 1979, decided on 22nd

 

November, 1983.

 

(On appeal from the Order and judgment of Lahore High Court, dated 18-9-1978 and 25-10-1975 in R. S. A. No. 778 of 1977 and W. P. 998

of 1975, respectively).

 

Hassan Bakh.sh v. Afzal Shah 1974 S C M R 364 ; Jan Muhammad v. Ghulam uhaus 1976 S C M R 141 and Abdul Ghani v. Muhammad Alam 1976 S C M R 147 analysed.

 

Sohara v. Rashid Ahmad and others P L D 19E Lah. 261 and Muhammad Siddig v. Muhammad Ibrahim P L D 1981 B J 23 and other cases in that line to be read and construed accordingly.

 

Civil Appeal No. 104 of 1978

 

Ch. Abdur Rahman, Advocate Supreme Court and S. Wajid Hussain, Advocate-on-Record for Appellant.

 

Imtiaz Muhammad Khan, Advocate-on-Record for Respondent No. 1.

 

Respondent No. 2 : Ex pane.

 

Civil Appeal No. 136 of 1979

 

Bashir A. Ansari, Senior Advocate Supreme Court and Ch. Akhtar All, Advocate-on-Record for Appellants.

 

X. E. Bhatti, Advocate-on-Record for Respondents.

JUDGMENT

 

MUHAMMAD AFZAL ZULLAH, J.-These two appeals (Civil Appeal No. 104 of 1978 and Civil Appeal No. 136 of 1979) through special leave of this Court are directed against ,judgments of the Lahore High Court, dated 18-9-1978 and 25-10-1978 respectively; whereby two Regular Second Appeals arising out of different pre-emption suits were decided : one, in favour and the other against the pre-emptors. The questions relating to payment of deficient court-fee and its effect on bar of limitation are common to both of them. They were heard and allowed with our short orders of remand dated 22-11-1983.

 

1n Civil Appeal No. 104 of 1978 the facts briefly stated are that Abdul Shakur respondent No. I filed a pre-emption suit with a court-fee of Rs. 22.50 calculated at 15 times the net profit of Rs. 20 for the previous year with a statement that he would make up the deficiency after the preparation of the Fard Paidawar (statement of net annual produce) on actual net profit, when ascertained. Subsequently he discovered that the land was permanently assessed. Accordingly instead of the net profit being the basis he paid court fee on 10 times the land revenue, the same being Rs. 33.75. He, however, made up the deficiency calculating the fee as lump sum of Rs. 34. The appellants (vendees-defendants) amongst others, raised the objections regarding court-fee. The learned trial Judge decreed the respondent’s suit and overruled the said objection with the observation that the valuation of the suit had been determined on the basis of .net profits. Accordingly the objection was without force. The appellants then filed First Appeal and affixed the court-fee of Rs. 34 on the memorandum of appeal following exactly what the plaintiff had done. The latter, however, this time raised objection that it was not correct court-fee. After some contest the appellant-vendees applied under section 149 read with 151, C. P. C. for permission to supply the deficient court-fee on obtaining the Fard Pardawar. It was also asserted by them that the fixation of court-fee by them earlier at Rs. 34 was based on the statement in this behalf in the decree sheet as also on the assertion made by the respondent-plaintiff in the plaint regarding the net profits. The two applications from both the sides were decided together. Respondent-preemptors’ objection application was. allowed and the appellant-vendee was not permitted to make up the deficiency; as, according to the First Appellate Court the request in this behalf was made after the expiry of the period of limitation. Accordingly the appeal was treated as time-barred and dismissed.

 

On Regular Second Appeal a learned Single Judge of the Lahore High Court held that the Punjab Finance Act of 1973 whereby the court-fee was to be assessed on the net profit basis and not on the land revenue basis even if it was permanently assessed, being in force at the time of the filing of the First Appeal (though the plaintiff’s court-fee on plaint being Rs. 34 was correct) the appellant’s court-fee on First Appeal on the basis as that of the plaint, was deficient. Therefore, the appeal when filed with such deficient court-fee would not be deemed to have been filed within time. It was also held that the provision contained in Order VII, rule 11 (c), C. P. C. was not applicable to appeals under Order XLI. Accordingly the Appellate Court was not obliged to grant extension of time under that provision for making up the deficiency in court-fee. Lastly it was held that there was no sufficient ground for exercising discretion in favour of the appellants under section 149, C. P. C.

 

Leave to appeal was granted in this case to examine the contentions:

 

Firstly, whether the appellant could avoid paying court-fee calculated on

 

the basis of the amendment in law (through Punjab Finance Act of 1973) for paying court-fee on an appeal, filed after the amendment, on the ground that the right of appeal being. vested one, the court

 

_ fee leviable at the time of the institution of the suit (which admittedly

 

was prior to the amendment of 1973) was the correct court-fee for appeal which would be deemed to be in continuation of the suit. The contrary view in this behalf held in `Syed Manzoor Hussain Ghazi v. Syed Ejaz Hussain Shah, Settlement Commissioner, Lahore Division, Lahore and 6 others P L D 1972 Lab. 743 was according to the appellant’s contention, not correct;

 

secondly, that Order XLI, rule 3 could be read with Order VII, rule 11(c) and sections 107 and 151, C. P. C. Accordingly the Appellate Court could also, like the trial Court, require the supply of deficiency in courtfee under Order VII, rule ll(c), C. P. C. with consequences accordingly. The difference of opinion amongst superior Courts on this legal question, it was further noted in the leave granting order, indeed required to be resolved ; and

 

thirdly, that First Appeal could not have been rejected as tune-barred on account of the so-called deficiency in court-fee—it could be dismissed only if, as it was held in Shah Nawaz and 6 others v. Mahammad Yousuf and 3 others 1972 S C M R 179 a party was found guilty of `contumacy’ or `positive male fide’ in paying deficient court-fee.

 

Thus, leave was granted to resolve the afore-noted legal controversies.

 

In Civil Appeal No. 136 of )979 the points involved were both of facts and law relating to, as noted earlier, court-fee and its effect on question of limitation. As leave was granted only to examine the latter (legal questions), therefore, it is not necessary to give details of the other facts and controversies involved therein the reason being that if the appellants succeed on the law point the case would merit remand to the appropriate forum.

 

Thus, the facts relevant for decision of this appeal briefly stated are that the appellant filed a pre-emption suit. The respondent, amongst .others, raised plea of deficient court-fee as also of limitation. It was dismissed on various grounds. But on question of court-fee the respondent-vendees objection was overruled and the issue framed in this behalf was decided in favour of the appellant. He filed the First Appeal paying the same court-fee as he had affixed on the plaint. It was accepted notwithstanding the objection by the vendee-defendant regarding court-fee paid in appeal. The vendeerespondents then filed a Regular Second Appeal in the High Court challenging the first appellate decision on other issues decided against them as also on the question of court-fee. – The High Court apart from the other contested issues decided the controversy relating to court-fee also against the appellants with the finding as in Civil Appeal No. 104 of 1978 that the Punjab Finance Act of 1973 was operative at the time of the filing of the appeal by the plaintiffs (appellants herein). They were required to pay the court-fee on the basis of the relevant net profits and not in accordance with what was paid at the time of the filing of the suit on the basis of the permanently assessed land revenue. The plea that the appellants were (themselves) not aware of any change in the law regarding court-fee during the pendency of the suit was not given any importance in considering the question of contumacy and positive male fides, as also his plea that the Court should have allowed at least one opportunity in these circumstances “automatically” in accordance with the law then prevailing (as laid down in Muhammad Nawaz Khan and

another v. Makhdoom Syed Ghulam-Mujtaba Shahana and another (1). The plea of the appellants that there was no statement of relevant net profits produced by the respondents to show that the court-fee paid at the appellate stage by the appellants on the basis of the land revenue was in reality less than the court-fee which would have been payable on the basis of the net profits, was not accepted; because the statement of the respondents in his affidavit on the question of net profits was treated as better than the estimate prepared by a Patwari (the Fard Paidawar). Accordingly on account of deficient court-fee the appellant’s First Appeal was not treated as a proper appeal at the time when it was filed. And the making good of the deficiency in this behalf at the time when the respondent’s second appeal was being heard by the High Court would not save the limitation as the First Appeal on account of deficient court-fee, already stood time-barred.

 

Leave to appeal was granted in this second case with reference to the leave granted in another case namely Sakhi Muhammad and others v. The Registrar, Lahore High Court (Civil Appeal No. 153 of 1978). It is pertinent to note here that the leave granting order dated 18th July 1979 in this case was written by our brother late Karam Elahi Chauhan, J. whose judgment rendered on 1st of June 1978 in the case of Mst. Walayat Khatun (2) has come up for interpretation during the hearing of these appeals. The leave was granted to consider the same questions of law as were noted in the case of Siddique Khan and others (Civil Appeal No. 104 of 1978).

 

Learned counsel for the appellants have tried to assail the view taken in the case of Syed Manzoor Hussain Ghazi (3) wherein it was held that the right of appeal is one thing and the payment of court-fee is another and to say that a right of appeal vests at the initial institution of a suit does not mean that the court-fee for appeals to be filed in future, cannot undergo a change. Therefore, right of appeal is confined to getting the decision of the Court below reviewed by the appellate Court and it bad no reference to the point as to what should have been paid as court-fee on the appeal. Reliance, amongst others, was placed on a decision of this Court in Ahmad Khan v. The Chief Justice and the Judges of the High Court, West Pakistan throuhgh the Registrar. High Court of West Pakistan, Lahore and 2 others (4) as also on the following cases: Sham Lal L. Dogarmal v. Om Prakash L. Sant Ram

 

Aggarwal and others (5) Sukh Lal and others v. Devi Lai and others (6) Chanda Engineers (India) Ltd., Calcutta and others v. Suresh Chand and others (7), Shamsul Hwsan v. State of Uttar Pradesh (8). In re: Ghosh Bee vi (9), Mst. Bhug butty Kooer and others v. Mst. Kushtooree Kooer (10). Aradhun Dey and another v. Ghulam Hossein Maloom and others (11), Mr. G. L. Fagan and others v. Chundar Kant Banerjee and others (12) and In re: Sreenath Roy Cho wdnry (13).

 

Some other cases, namely:

 

Parmeshar Kurmi and another v. Bakhtawar and others (14), Nandi Ram alias Nandi Lal Agrani v. Jogendra Chandra Dutta and others (15) and

 

(1)PLD1970SC374 (2)PLD1979SC821

(3) P L D 1972 Lah. 743 (4) P L D 1968 S C 171

(5) A I R 1955 Pb. 223 (6) A I R 1954 Rai. 170

(7) A I R 1954 Vidh. Pra. 47 (8) A I R 1956 All. 413

(9) A I R 1944 Mad. 406 (10) 15 W R 272

(11) 7 W R 461 (12) 7 W R 452

(13) 7 W R 462 (14) A I R 1933 All. 20

(15) A 1. R 1924 Cal. 881

 

Chunnilal and others v. Kishandas Ramdas (1) were however distinguished. But the contrary view that the court-fee payable on appeal should be the same which is prevalent at the time of the institution of the suit out of which the appeal arose and not the one payable at the time of the institution of the appeal itself, in some of the other cases, was not followed.. They are:

 

Firm Haji Sheikh Faizullah v. State of Vindhya Pradesh and others A I R 1954 Vidh Pra. 5; R. M. Seshadri v. The Province of Madras A I R 1954 Mad. 543; Bisan Parashram v. Ganpat Sakharam and others A I R 1955 Nag. 46; Arjuna Govinda v. Amritta Keshiba and others A I R 1956 Nag. 281; Sawaldas Madhavadas v. Arati Cotton Mills Ltd. A I R 1955 Born. 332 ; In re : Reference No. 16 of 1954 A I R 1955 Bom. 287 ; In re : Abdul Ghafoor A I R 1958 Andh. Pra. 267 ; Amara E.swaramma and others v. Makkam Seethamrna A I R 1955 Andh. Pra. 221.

 

The view expressed in the first mentioned category of cases was followed by the Lahore High Court in the cited case of Manzoor Hussain Ghazi. It is that the court-fee on a document including suit or appeal has to be paid according to the law when the document is presented in Court and not the law which was in force at the time of the accrual of the relevant cause of action or right; or, for that matter when the suit was filed, if the relevant document in the memorandum of appeal arising out of the same suit.

 

It is not necessary to re-examine the entire case-law, diligently reviewed by the learned Judge in the High Court (late Mr. Justice Karam Elabee Chauhan as he then was), as it is fully in accord with the view of this Court held in the case of Ahmad Khan to the effect that the imposition of fee is a necessary part of regulatory process. Thus, as observed by the learned Judge the change of law involved in this case is of only regulatory and procedural type and as held by this Court in several other cases no one has a vested right in any particular procedure. That being so, the court-fee leviable E on the relevant First Appeals involved in these two cases would have to be l calculated in accordance with the law contained in the Punjab Finance Act, 1973 and not the law which prevailed at the time of the filing of the suit at a time earlier to the said amendment. The court-fee thus paid at the time ofI the filing of the First Appeals no doubt, was deficient. The first argument raised on behalf of the appellants in this behalf, is repelled.

 

The next question arises in regard to a serious conflict of opinion amongst the superior Courts in Pakistan and in India, as to whether the provisions of Order VII, rule 11(b) and (c) as distinguished from section 149, C. P. C are attracted to the appeals as they are applicable to the suits. The learned Judge deciding the second appeal in the case out of which Civil Appeal No. 104 of 1978 arises, has adopted the view expressed in a Division Bench judgment of the Lahore High Court in the case of ealwant Singh v. Jagjit Singh (2). He declined to accept the opinion expressed in Jai Singh Gir v. Sitaram Singh (3) and Achut Ramchandra Pal and others v. Nagappa Bab Balgaya and others (4).

 

In the case of “Balwant Singh” an unseccessful pre-emptor filed a Regular First Appeal in the High Court with a deficient court-fee and made an application for extension of time to supply the deficiency. It was allowed

 

(1) A I R 1926 Nag. 71 (2) A I R 1947 Lah. 210 (3) A I R 1923 All. 349 (4) A I R 1914 Born. 249

but subject to all just exceptions. At the fiual hearing four legal controversies were examined in one or the other context. They, amongst others, are also relevant for the present discussion and as. noted and answered are as follows :

 

(1) Whether the provisions of Order VII, rule 11 (b), (c) would mutatis murandis apply to the appeals ;

 

(2) Whether in case Order VII, rule 11 (b)(c) applied it was not obligatory for the Court concerned to grant time for supply of the deficiency in court-fee ;

 

(3) Whether for non-payment of court-fee within period of limitation an appeal would be deemed to have become time-barred at the time the question of proper court-fee is considered-after the expiry of the period of limitation, but without condonation of delay by the Court ; and

 

(4) Whether even if it is obligatory under Order VII, rule 11, (b) (c) to grant time for supply of deficiency in court-fee, it was contrarily discretionary under section 149, C. P. C. to grant time, for the same purpose.

 

Both the learned Judges of the Division Bench wrote separate judgments. A comparative study thereof leads to the following conclusions discoverable from the common ratio thereof.

 

‘fhe first question was answered in the negative and it was held that rule 11 (b), (c~ of Order VII of C. P. C. was inapplicable to the memoranda of appeals. Reliance was placed on Ghulam Muh mmad v. Barkat Ali and others (1) and Pamidimukkala Sitharamayya and others v. Ivaturi Ramayya and another (2). The contrary view held in the cases of Hussain All Khan v. Ambika Prasad (3); Basavayya v. Venkatappayya (4); Rarnagati Singh v. Sitab Singh (5); Venkanna v. Atehutaramanna (6) and Har Lal v. Sri Ram (7) and many others, was not followed. Khosla J. in his separate opinion mentioned also some more cases :

 

Satto v. Amar Singh 1 Lah. 220; Lekharam v. Ramji Das 1 Lah. 234; Gursaran Das v. District Board, Jullundur 102 I C 615 and Raghbir Saran v. Mt. Sohan Debi 6 Lah. 233,

 

in support of the same view that Order VII, rule 11 (b) (c) was not applicable to appeals. Though in these cases the question was not discussed ,pit was. impliedly assumed that the appeals were not governed by Order VII, rule I1 (b) (c). Section 107, C. P. C. was held not applicable because in its terms Order VII, rule I I (b) (c), C: P. C. was not included therein as applicable to the appeals. Moreover, it was observed that Order VII rule I I (b) (c) governs the filing, admission and rejection of plaint while Order XL1 contained different provisions for the same purpose in case of appeals. Several other rulings from.the High Courts of Bombay, Calcutta, Patna and Chief Court of Allahabad expressing the view that Order VII, rule I I (b) .c) applied to the

 

(I) A I R 1936 Lah. 9.35 (2) A I R 1938 Mad. 316

 

(3) 13 Luck. 397 (4) A 1 R 1926 Mad. 676

 

(5) A I R 1.939 Pat. 432 (6) A I R 1938 Mad. 542

 

(7) 14 Lah. 312

 

memoranda of appeals by virtue of section 107, C. P. C. were not followed, as according to the learned Judges the High Courts of Allababad, Lahore and Madras and Judicial Commissioner’s Court at Nagpur and Peshawar were of the view which found favour with them. 1t needs to be mentioned however, that in the judgments from Allahabad, Lahore, Madras, Nagpur and Peshawar it was held that although, Order VII, rule I 1 (b) (c) did not apply to the memoranda of appeals, section 149, C. P. C. could be made applicable thereto for purpose of extending time for supplying the deficiency in court fee. – One additional reason given in the leading judgment of the Division Bench rendered by the then Actg. C. J. was as follows :

 

“1n my opinion, the provisions of Order VII, rule 11(b)(c), C. P. C., do no apply to memoranda of appeals. If an insufficiently stamped memorandum of appeal is presented in an appellate Court, it cannot be held that a proper appeal has been filed at all. The memorandum of appeal is a piece of paper which may develop into a proper memorandum of appeal is the Court extends time for the payment of the deficient court fee under section 149, C. P. C. Once the Court has exercised its power under section 149 of the Code, the memorandum of appeal would be validated retrospectively from the date on which it was filed in an appellate Court as it is laid down by section 149 that upon such payment being made the document, in respect of which such fee if payable, shall have the same force and effect as if such fee had been paid in the first instance. If, on the other hand, the Curt refuses to extend time under the provisions of section 149, the document presented in the appellate Court will never become a proper memorandum of appeal. Reference may be made in this connection to section 6, Court Fees Act, which lays down that no document specified as chargeable in Schedule 1 or 2 of the Act shall be filed, exhibited or recorded in any Court of Justice, or bail be received or furnished by any public officer, unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said schedules as the proper fee for such documents.”

 

The above reasoning for excluding the application of Order VII; rule 11 (b) (c) insofar as the memorandum of appeal is’ concerned, with respect, seems to be based mainly on the view taken of section 6 of the Court Fees Act where under it was assumed that even if a specified document was duly presented in time but with deficient court-fee, it will be deemed to have been presented after the period of limitation if the deficiency in court-fee was supplied after the expiry of the limitation period without the extension of time under section 149, C. P. C. or condonation of delay under section 5 of the Limitation Act. And accordingly it would be time-barred. That being so it was thought that an insufficiently stamped memorandum of an appeal would not be deemed to have been filed at all. Further, reasons found in the decision by a Division Bench of the Madras High Court in the case of Pamidfrnukkala Sitharamayya and others were adopted in support of the afore-noted view. They are that in the case of a plaint, there is no power in the Court to excuse delay on grounds which are available under section 5,rf the Limitation Act while it applies to the delay in filing the appeal; and, that if there are any other cases of hardships regarding appeals the provisions of section 149 of the Code would supply the remedy. There was, therefore, no necessity whatever to apply the provisions of Order VII, rule I1 (b) (c) to memoranda of appeals. The learned Acting Chief Justice further expressed` the view

“that in cases of this type the appeal is not rejected because of the insufficiency of court-fee; the appeal is dismissed on the question of limitation”.

 

On the second question there was divergence of approach between the two learned Judges. In that case the learned Acting Chief Justice was “inclined to the view that even in the case of plaint it is not the bounden duty of the Court to fix time for making up a deficiency before rejecting the plaint”. . However, as in the earlier Full Bench case of Jagat Ram v. Misar Khairaiti Ram (1), the point was left open; notwithstanding there being observation in the order of reference to the effect that it was only discretionary to grant time under Order VII, rule 11 (b) (c). The learned, Acting Chief Justice finally observed in this behalf that “it is unnecessary for me to give a considered opinion whether under the provisions of Order VII, rule 11

(b) (c), it is the bounden duty of the trial Court in the case of plaints to fix a time for the making up of the deficiency in the court-fee . . . . “. The other learned Judge (Khosla, J.) expressed a more considered opinion. This is as follows :– –

 

“The first point to consider is whether under the provisions of Order VI1, rule 11 in so far as it applies to plaints, a Court is bound to extent time. Certain observations made by Din Muhammad J. in Jagat Ram v. Misar Kharaili Ram, A I R 1938 Lab. 361 were brought to our notice, and it was contended by Mr. Rup Chand that the Court is not bound to extend time even in the case of plaints. There is overwhelming authority to the contrary, and I am not, as at present advised,.

 

‘ prepared to differ from the view expressed by a large number of Judges of almost all the High Courts of India. There are two decision’s of the Punjab Chief Court which lay down that a Court is bound to extend time in the case of plaints : Jiwan Das v. Khushabi Ram 39 I C 766 and Jhanda Khan v. Bahadur Ali, 3 I R 1893. With great respect to Din Muhammad J., I do not think that the reasons upon which the decision in Jhanda Khan 3 P R 1893 proceeds were unsound, but a more careful consideration of this point would not be necessary, as I agree with my learned brother that Order VII, rule I1 (b) (c), C. P. C. does not apply to memoranda of appeals.”

 

The third question was answered in the affirmative ; in that, as already noted, placing reliance on section 6 of the Court Fees Act, it was held that the submission of a memorandum of appeal which is insufficiently stamped is no presentation at all in the eye of law; because this provision lays down that no document which is subject to levy of court-fee can be properly entertained if no proper court-fee is paid on it. Hence in all such cases even though the document is presented within the period of limitation, on account of lack of proper court-fee it shall be deemed to have not been presented at all.

 

On the last question no reasons were advanced as to why the case was not fit for grant of time under section 149, C. P. C. even if time could not be granted as a matter of course for non-applicability of Order VII, rule 1 l (b) (c). Perhaps it was assumed -in the observation “there is no justification for extending time now under section 149, C. P. C. or under section 5 Limitation Act” that the time had passed for any relief under the said two provisions; which it must be straight away remarked, was not a justifiable ground for refusing the relevant relief.

 

(1) A I R 1938 Lab. 361

 

. The provisions of Order VII, rule 11, C. P. C. read as follows

 

“The plaint shall be rejected in the following cases :

 

(a) where it does not disclose a cause of action ;

 

(b) where 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 ;

 

(c) where the relief claimed is properly valued, but the plaint is written upon paper in sufficiently stamped and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so ;

 

(d) where the suit appears from the statement in the plaint to be barred by any law.

 

Order XLI, C. P. C. prescribed the procedure as shown in the heading of the order, for appeals from original decrees. Under this main heading one finds a sub-note i. e. “(see sections 96 to 99, 107 and 108)”. Order XLII carries the heading appeals from appellate decrees. This order contains only one rule prescribing that “the rules of Order XLI shall apply, so far as may be to appeals from appellate decrees”. Thus, the procedure for second appeals would, by and large, have to be discovered from what is prescribed under Order XLI read with other provisions of C. P. C. particularly those o sections 96 to 99, 107 and 108, C. P. C.

 

Order XLI; rule 3 provides that “where the memorandum of appeal is not drawn up in the manner herein before prescribed, it may be rejected or be returned to the appellant” for a specified purpose. The question whether the rejection under rule 3 would also include a rejection for the reason mentioned in Order VII, rule 11, clause (b) (c) has been the subject-matter of controversy in the sub-continent for nearly three quarters of the Century. There are innumerable decisions that Order VII, Rule 11 Clauses (b) (c) would apply to the appeals also; but, there are many judgments to the contrary, including the Lahore Division Bench case of Balwant Singh already noticed. There are some Full Bench cases also which would be noticed presently. It, however, has to be observed that notwithstanding there being some cases from the Lahore High Court in support of the first mentioned view, in majority of the cases including a Full Bench decision from Peshawar, the latter view has been adopted.

 

The controversy cannot be appreciated without examination of the provision contained in section 107 , C. P. C. which operates, amongst others as the main link between the provisions of Order VII, rule 11 clauses (b) (c)I and Order XLI, rule 3. Section 107, C. P. C. reads as follows :

 

“107. Powers of appellate Court.-(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power

 

(a) to determine a case finally;

 

(6) to remand a case;

 

(c) to frame issues and refer them for trial;

 

(d) to take additional evidence or to require such evidence to be taken. (2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred

and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.”

 

Before making any comment on this section it is necessary to note that section 108 makes provisions similar to that mode in Order XLII which relates to appeals from appellate decrees. It (section 108) prescribes that the provisions of the part in which section 108 as also 107 fall (that is part 7 of C. P. C. which relate to appeals from original decrees) shall so far as may be, would also apply to appeals from appellate decrees and from orders.

 

The two subsections of section 107 relate to separate aspects of the exercise of appellate jurisdiction. Subsection (1) relates to specified actions of somewhat final character relating to the decision in the appeal while subsection (2) relates to powers and duties in a general sense which will also include purely procedural matters. It i; necessary to co-relate and read this provision with Older XLI, rule 3 because the later also provides the procedure regarding initial stage of the proceedings in the appeal. The restricted view is that Order XLI, rule 3 is exhaustive of the powers regarding rejection of an appeal on a procedural question and that the provisions contained in subsection (2) of section 1t)7 would not cover this procedural aspect of th

 

appeal. It was held in a Full Bench case of S. Wajid All v. Mst. Isar Bano Urf Isar Fatima (A I R 1951 All. 64) that by virtue of section 107 the appellate Court will have the same power in respect of plaints as a Court of original jurisdiction would .have in that regard, but it would not have same or similar powers with regard to an appeal. Some earlier Allahabad cases were relied upon with the observation that one of them decided by a Full Bench “in regard to this matter has not been questioned in this Court or in any other Court in India”. This observation will have to be seen with reference to the other relevant cases ; because, in Mahabir Ran and another v. Kapideo Pathak and others (AIR 1957 Pat. 111) a contrary view was taken as follows :

 

“By virtue of clause (2) of section 107 of the Code of Civil Procedure, Order VII, rule ll, applies to appeal also. Order VII, rule i 1 (c) provides that where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so, the plaint shall be rejected . ………… Order VII, rule 11, therefore, makes it compulsory for the Court before rejecting the plaint to give some time to the plaintiff to make up the deficiency, however short that may be, and the Court cannot straightaway reject the plaint without giving such time. The provisions of Order VII, rule 11, are applicable to appeals also, as I have already stated, and that being so, where the memorandum of appeal is insufficiently stamped, the Court must afford the appellant an opportunity of making good the deficiency of the court fee payable on the memorandum of appeal. It is, therefore, clear that a memorandum of appeal not sufficiently stamped cannot be rejected summarily on that ground, unless an opportunity is given to the appellant to explain, or to make good the deficiency within the stated time (see-Baijnath Prasad Singh v. Umeshwar Singh A I R 1937 Pat. 550 : I L R 16 Pat. 600 (S B) (A) ; Bahuria Ramsawari Kuer v. Dulhin Motiraj Kuer A I R 1939 Pat. 83 , I L R 17 Pat. 687 (B), Siring Prasad Sahu v. Surendrapat Tewari A I R 1939 Pat. 137 (C) and Ramgati Singh v. Shitab Singh A I R 1939 Pat. 432 (D)) (Underlining’ is ours).

 

In another post-Partition case from India Phaltan Bank Ltd. v. Baburao Appajirao and another (A I R 1954 Bom. 43) ; also, it was held that “under Order XLI, rule 3, an appellate Court is expressly empowered to reject a memorandum of appeal if it is satisfied that the memorandum is not drawn up in the manner as prescribed ; but this does not mean that the appellate Court’s power to reject the memorandum of appeal is confined only to the cases falling within rule 3 of Order XLI. It is well-settled that reading the provisions of section 107, subsection (2), and Order VII, rule 11, together, the Court of appeal would be entitled to reject the memorandum of appeal on any of the grounds mentioned in Order VII, rule 11. Amongst the grounds on which a memorandum of appeal can thus be rejected under Order VII, rule 11, failure of the appellant to pay the requisite court-fee, is included. Order VII, rule 11, authorises the trial Court to reject a plaint for the grounds mentioned in four subsections under the said rule and by reason of the provisions contained in section 107, subsection (2), these powers can be exercised by the Court of appeal in respect of the appeals filed before it”.

 

On the same subject, diametrically opposed views were expressed in favour of each of the two propositions stated earlier, in two more recent judgments from India. One, Shri Hem Chandra Sarkar v. Sint. Jyoti Bala Chakraborty (A I R 1970 Tripura 26) and other Tipper Chand Dhanpat v. :qatu Ram and others ((3) A I R 1970 Pb. & Haryana 273). In the former case it was held that “subsection (2) of section 107 gives the appellate Court the same powers and assigns to it the same duties as are conferred and imposed on the Court of original jurisdiction in respect of suits instituted therein”. In that case the memorandum of appeal was insufficiently stamped and it was observed in that behalf that “in terms of clauses (b) and (c) of O. VII, rule 11 read with section 107 of the Code this Court was bound to give time” to the appellant for correcting the valuation and making up the deficiency in court-fee. The conflict of law in India on this point was in this case summarised as follows :-

 

“I must state here that there is a sharp conflict of opinion amongst the various High Courts in India on the point whether the provisions of clause (c) of rule 11 apply to appeals. I am inclined to follow the view that they do apply to the appeals because the phraseology of sub-section (2) of section 107 leaves no room for doubt on the point. Therefore, the appellate Court is bound to grant time to the appellant for making up the deficiency in the court fee if the memorandum of appeal is insufficiently stamped. That Court cannot in the latter circumstance adjudge the fate of appeal merely on the basis of the provisions of section 149 in exercise of its discretion without complying with the command given by clauses (b) and (c) of rule ll of Order VII and giving time to the appellant to do the needful. If the appellant fails to make up the deficiency in the court fee within the time allowed to him by the appellate Court, then alone the latter may reject the memorandum of appeal as insufficiently stamped and not otherwise.”

 

The contrary view expressed in the 1970 Punjab case is in no uncertain terms though the case of Balwant Singh already noticed was mainly relied upon. The conflict amongst the High Courts of India was also highlighted in this case as follows

 

“There is indeed a conflict of opinion on the question as to whether the provisions of Order VII, rule 11 in terms apply to appeals or not. A Division Bench of the Lahore High Court in Balwant Singh v. Jagjit Singh A I R 1947 Lah. 210 has, however, held that they are not applicable to appeals and it is a matter of discretion with the Court under section 149 of the Code, whether time for payment of the deficit court-fee should be extended or not. Th:4-ame is the view held by a Full Bench of the Allahabad High Court in a case reported as S. Wajid Ali v. Mst. Isar Bano Urf Isar Fatima A I R 1951 All. 64 (FB). It may be that by virtue of section 107, an appellate Court has the same powers as an original Court in respect of plaints but that does not imply that Order VII, rule 11 becomes applicable in terms to appeals. I must follow the Division Bench judgment of the Lahore High Court which, I may say with all respect, lays down the correct law. The only provision of law under which an appellate Court can extend time in section 149 of the Code which vests a discretion in the Court in this regard. It is, of course, true that the discretion has to be judicial and not arbitrary. Where a Court is satisfied that the mistake in not paying a proper court-fee was a bona fide one, it is bound to allow the deficiency to be made good within a time prescribed by it.”

 

 

The resume on this serious conflict amongst the Indian High Courts on the subject under discussion would not be complete without reproducing Chitaley’s Commentary on C. P. C. (1977th Edition). The learned authors in their subheading No. 6 in the Commentary on Order VII, rule 11, summarised the question and the conflicting answers as follows

 

“This rule applies in terms to plaints insufficiently stamped. Where a memorandum of appeal is found to be presented with an insufficient court-fee, the Court can allow time for paying the deficit court-fee. But, is the Court bound to grant time to the appellant to make up the deficiency? There is a conflict of opinion on this point. According to . the High Courts of Travancore. Cochin, Bombay, Calcutta, Gujrat, Patna, Rajasthan, the Chief court of Oudh and the Court of the Judicial Commissioner of Tripura this rule applies to memorandum of appeals also by virtue of section 107. A contrary view has been taken by the High Courts of Allahabad, Jammu & Kashmir, Lahore, Punjab and Madras and the Judicial Commissioner’s Court of Nagpur, Ajmer and Peshawar. This view proceeds on the ground that the insertion of section 582 in the old Code corresponding to section 149 providing for memorandum of appeals, shows that the rule does not apply memorandum of appeals.”

 

The authors then mentioned dozens of cases decided by these Courts including several of pre-Partition period.

 

At this stage it needs to be mentioned that the conflict of authority is in no way less acute to Pakistan and it was for that reasons that this Court in another case also namely, Land Acquisition Collector, Rawalpindi and another v. Sahib Dad Khan (N L R 1981 S C 1 290 ) granted leave to appeal to consider the argument that when a memorandum of appeal does not bear proper court-fee stamps, the appellant should be first called upon to make the deficiency in court-fee as would appear from the provisions of Order VII, rule ll (c) which though, in terms are not applicable to appeals but the same have been extended on the basis of section 107, C. P. C.

 

In some of the recent Lahore cases the view expressed in 1947 case of Balwant Singh has been followed without discussion. For example in Mubarak v. Phullan and 7 others (1) it was assumed that “there can be no two opinions on the proposition that the provisions of Order VII, rule 11, C. P. C. do not apply to the memorandum of appeal.” In this case nor in the case of Ramzan and others v. Allah Diwaya and another (2) relied upon therein, is any discussion as to why section 107 (2), C. P. C. would not make Order VII, rule 11 (b) (c) applicable to memo. of appeal.

 

In another judgment Bhudan Shah and others v. Mst. Shantshad Begum and others (3) a learned Judge of the Lahore High Court again assuming as if there was no controversy, observed as follows

 

“The proposition of law that the provisions in Order VII, rule 11, Civil Procedure Code under which a plaint could not be rejected for insufficiency of court-fee unless the plaintiff was given opportunity to make good deficiency within a period to be fixed did not apply to appeals, does not admit of any controversy.”

 

The contrary view expressed in Mahmood Ahmad and others v. Mr. S. M. Ishfag Ali, Claims Commissioner etc. (4) was not adopted because of the decision in the cases of Balwant Singh (1947) already noted and Qadlr Bakhvh v. Allah Bakhsh and others (5). In Mahmood Ahmad’s case it was held as follows :

 

“Similarly, under Order XLI, rule 3, C. P. C. memorandum of appeal can be rejected on the ground that the same is not properly stamped after the party concerned has failed to make up the deficiency in the payment of court-fee within the time granted by the Court, The law requires that an opportunity must be given to the party concerned to pay the deficient court-fee and an appeal or plaint cannot be rejected under this rule for insufficiency of stamp unless the party is given an opportunity to supply the deficient stamp within a time fixed by the Court and it fails to do so.”

 

In the case of Qadir Bakhsh again there is no discussion on the question as to why by virtue of section 107 (2), C. P. C. the provisions contained in Order VII, rule 11 (b) (c), C. P. C. would not be attracted to memorandum of appeal excep t that after noting the divergence of opinion thereon in the three cases of Pt. Amba Shankar v. Mst. Seoti (6) Abdul Majid Mridha v. Amina Khatun (7) and Jai Singh Gir v. Sitta Ram Singh and others (8) and some other cases, but relying on the case of Balwant Singh it was held that the provisions of Order VII, rule I1 (c) were not applicable to memorandum of appeal.

 

It is now necessary to notice the contrary view taken in Pakistan in some more cases, of course in addition to one already noticed namely, that of Mahmood Ahmad (1974).

 

In Sain v. Shah Asghar Shah it was held that under section 107 (2), C. P. C. the appellate Court has the same powers as that of the trial Court. Therefore, it would make the provision regarding the rejection of plaint

 

(1)     1980 C L C 485 (2) P L D 1953 B J 45 (3) 1980 C L C 1788

(4) P L D 1974 Note 32 at p. 69 (5) P L D 1967 Pesh. 1 (6) A I R 1937 All. 280

(7) A I R 1942 Cal. 539 (8) A I R 1923 All. 349 (9) P L D 1952 Pesh.44.

applicable to memorandum of appeal. It was, however, observed that before rejecting an appeal by virtue of Order VII; rule l l (c) the Court should normally refuse to entertain a memo. of appeal which is deficient in court-fee. With regard to the extension of time in that particular case under Order VII, rule 11 (c) it was noticed that the appellate Court had “twice given time to make up the court-fee, which he failed to do, and under the circumstances the Court had no other alternative but to reject the memorandum of appeal”. Accordingly the-approach of the learned lower appellate Court was not considered illegal or even improper.

 

In Amir Ali v. Gul Muhammad (1) again it was held that an appellate Court in exercise of those powers which it enjoyed by virtue of section 107 (2) C. P. C. could call upon the appellant to make up a deficiency in court-fee before dismissing the appeal. It was further observed that “The learned District Judge fell in error in dismissing the appeal. The proper procedure for him should have been to have called upon the appellant to make good the deficiency in the court-fee before the hearing of the appeal. He had under section 107 of the Civil Procedure Code all the powers of the trial Court and

 

had further powers under sub-paragraph (ii) of section 12 re&d with subparagraph (11) of section 10 of the Court Fees Act to dismiss the suit on the ground of insufficient court-fees”. In this case the High Court accepted the

 

appeal and directed the District Court to hear the first appeal on merits and dispose it of according to law.

 

Same view was expressed regarding interpretation of Order VII, rule 11 (c) if it is sought to be applied in connection with the provisions of Order VIT, rule 13, C. P. C. to Abdul Hakim and others v. Asabuadin (2). Reliance was placed in this case on a Privy Council judgment in the case of Faizullah Khan and another v. Mauladad Khan and others (3). Reliance was also placed on some observations made in Mahanth Ram Das v. Ganga Das (4) and Shah Wali v. Ghulam Din alias Gaman and another (5).

 

In a case arising out of Rent Restriction Ordinance also section 1:07 (2) came up for interpretation in Maula Bakhsh v. Abdul Hamid and 4 others (6) and it was held that it “deals with the powers of the Appellate Court in the matter of deciding on merits the controversy in appeal, and is not exhaustive of the powers for regulating the procedure to be observed in processing the appeal. To put it differently, the provisions contained in subsection (2) of section 107 of the Code do not, in any manner, override, or conflict with, the provisions contained in the First Schedule to the Code regarding the disposal of appeals.” Earlier it was observed that “apart from the powers enjoyed by the Court of the original jurisdiction, the appellate Court has the powers mentioned in subsection (1) of section 107 of the Code of Civil Procedure. It is, therefore, not correct to say that the appellate Court does not possess greater powers than those enjoyed by the Court of. the original jurisdiction.”

 

(I) P I, D 1968 Pesh. 106 (2) P L D 1970 Dacca 532

(3) AIR 1929 P C 147 (4) AIR 1961 SC882

(5) P L D 1966 S C 983 (6) P L D 1971 Lah. 5 r2

In the case of Mahmood Ahmad already noticed, while making reference to another Lahore case it was held that whether it is a plaint or a memorandum of appeal it cannot be rejected for insufficiency of stamp unless the party concerned is given an opportunity to supply deficient stamp within a time fixed by Court. Reliance was placed in this case on Sultan Muhammad v. Muhammad Yousaj and another (1) and Rashid Ahmad v. Muhammad Khan (2).

 

The Azad Jammu and Kashmir Supreme Court in the case of Muhammad Boota v. Farzand Ali and another (3), examined the provisions contained in section 149, Order V11, rule 11, C. P. C. and section 4 of the Court Fees Act, and held that the Court must in the first instance grant time to make up the deficiency of court-fee on memorandum of appeal, The provisions of Order V11, rule 11 was applied to the question of deficiency of court-fee on a memorandum of appeal and section 149, C. P.. C. was also considered in the context that the appellant in that case had failed to avail of the initial opportunity afforded. under Order VII, rule I 1(c)

 

The foregoing state of case-law would show that whether in Pakistan or in India, the case of Bal want Singh has often been cited in support of the view that Order VII, rule 1 I (b) and (c), C. P. C. does not apply to the memorandum of appeal ; though as stated earlier many High Courts have adopted the contrary view. The reasons which prevailed in the case of Balwant Singh are that section 107, C. P. C. in terms does not make Order VIT, rule 11 applicable to appeals ; –

 

that similar provisions as contained in Order VII, rule 11 regarding plaints are separately available in Order XLI regarding appeals, thus the ?after would apply to the exclusion of the former ; and that a memorandum of appeal, till the court-fee is paid is no `document’ to be judicially noticed so as to attract the provisions of Order VII, rule 11 for correction viz-a-viz. court-fee and after the period of limitation it is otherwise to be ignored as time-barred.

 

With respect, none of these considerations is weighty enough to hold that Order V1I, .rule 11 (b) and (c) read with section 107(2), C. P. C. would not apply to memorandum of appeal as it does to a plaint. The first reason has also been adopted in some judgments noticed earlier with the observation that even if section 107(2) made Order VII, rule 1 l(b) and (c) applicable to appeals, it was regarding what the appeal Court could do about a plaint when considering its validity during the hearing of the appeal and not that it applied to the memorandum of appeal itself.

 

There is nothing in the language of section 107 to suggest that it mad any specific provision of the C. P. C. in its terms, applicable to appeals. Subsection (1) thereof no doubt relates to certain powers and functions o an appellate Court which are spelled out in Order XLI, C. P. C. also (se Order XLI, rules 4, 20, 23, 23-A, 24, 25, 27, 28 and 33) ; but that does not mean that for this reason the other powers and duties of the trial Court not so easily relatable to specific orders/rules of C. P. C. are not applicable to the appellate Court.’ Subsection (2) of section 107 would, if that were so, become by and large, redundant. Similar conclusion would be reached when examining whether the provisions specifically made in appeals in Order XLI or elsewhere (other than section 10.7) furnish complete procedure for the appeals. The answer is in the negative. But for section 107 particularly subsection (2) thereof the appellate Court would not be able to process the

 

(1) P L D 1959 Pesb. 120 (2) P L D 1961 B J 76

(3) 1980 C L C 1124

appeal proceedings to the stage of completion for hearing. Order XLI, C. P. C. has not provided for all eventualities. Order VII, rule I I (b) and (c) amongst others by virtue of section 107(2) fill the gaps of procedure which is not directly provided for the appeals in Order XLI, C. P. C. Thus, in the relevant context section 107 without making any particular reference to a particular stage of appeal or a document therein, is applicable to appeal proceedings. The argument that the omission of the phrase `memorandum of appeal’ from section 107(1) supports the plea that in term it would not apply to appeal and that it is applicable thus only to `plaint’, is without any support from the point of view of logic or practice: It is, therefore, obvious that section 107 (2) is also applicable to memorandum of appeal.

 

Rule 3 of Order XLI provides for the rejection of appeal on noncompliance with the Rules of procedure. The strict view adopted in the case of Balwant Singh is that it is exhaustive of the reasons for such rejection. Even if it were so it does not confine the process of the drawing up of the memorandum of appeal to the preceding rules 1 and 2 (ot Order XLI) only. If that were so and general provisions of C. P. C. relating to the drafting of the plaint and pleadings were not applied “as nearly as may be”, by virture of section 107(2), C. P. C. to memorandum of appeal, the latter would be rendered incomplete regarding its preparation and processing. Thus, in this behalf the reason of availability of all relevant necessary procedure in Order XLI is to say the least, with respect, very weak. On the other hand Order XLI, rule 3 is to be read with the other relevant provisions of C. P. C. regarding drawing up of and processing of the ‘plaint’ as applicable to appeal. The expression ‘here in before’ has also been used in this context in Rule 3 i

 

a wider sense as relatable to rules 1 and 2 of Order XLI and other rules in C. P. C. which would be attracted by reference to section 107(2), C. P. C.’ The same as discussed earlier, provides for all relevant matters which have . not been specifically mentioned in rule 3.of Order XLI, in this behalf. And that being so, clause (c) of Order VII, rule I I which relates to the drawing up for the plaint on a properly stamped paper as an assential requirement, to save it from ultimate rejection for non-payment of the court-fee would also apply to the appeals. Accordingly it is held that Order XLI, Rule 3 is not, exhaustive in this behalf.

 

Even on general considerations it was held in F. A. Khan v. Government of Pakistan (1) and The Province of East Pakistan v. Muhammad Hossain Mia (2), that the original and the appeal proceedings are steps in reality in one cause and process. And when appeal is filed the original matter becomes sub judice and is reheard by the appellate Court, which does not act merely as a Court of error. That being so, it will not be correct to say that the `plaint’ and ‘memoradum of appeal’ are such documents that they cannot at all be treated at par in procedural respects in accordance with the enabling and very wide provision in that behalf made in section 107 (2), C. P.

(1)PLD1964SC520 (2)PLD1965SC1 (3) P L D 1976 S C 625

 

Accordingly there is no justification for making an exception on the subject under discussion. See also Muhammad Yagub v. Chairman, Election Tribunal, N.-W. F. P. (3), wherein provisions of Order XXXIX, rules I and 2 were applied together with Order XLI, rule 5, when considering the question of power of an appellate forum to grant a temporary relief.

 

There is another aspect of the matter. The application of Order VII, rule I1(b) (c) to appeals in one sense at least is salutary for the progress of the appeal, for hearing. If it is applied then as would be presently shown It might not be possible to reject a memorandum of appeal on ground of deficiency of court-fee unless in accordance therewith an opportunity is provided, to supply the required court-fee. It is also conducive for a purpose amongst others, for which Order V11, rule 11 (b) and (c) were enacted namely collection of State revenue in so far as appeal stage of the Court process is concerned. As would be presently shown, it is obligatory under Order VII, rule I 1(c) to afford one opportunity to supply the deficiency in Court-fee, before rejection of the plaint under the said provision. If as is discussed above there are two interpretations of section 107(2) (when read with Order VII, rule II (c) and Order XLI, rule 3) then the one favouring, the saving of the appeal proceedings from rejection on ground connected with, collection of public revenue by affording the said opportunity, would have to, be adopted. Thus the age old conflict on this fiscal-cum-procedural question is resolved in favour of the subject (the appellants). The result is that Order VII, rule 11 (b) and (c) applies to plaints as also to memoranda of appeals.

 

The last reason which prevailed in the case of Balwant Singh is that of limitation namely, that a memorandum of appeal will be treated as a useless piece of paper till it is stamped properly and it would not be deemed to have been instituted and presented till the day of the supply of the deficient court-fee. On this also admittedly there has been conflict of authority. But it is not necessary to survey the same regarding application of Order VII, rule 11 (b) and (c) because the question now stands resolved by a recent Full Court decision of this Court in Mst. Parveen v. Mst. Jamshed Begum (1), which has been relied upon in Shahna Khan v. Aulia Khan (2). It is not out of place to add here that in the Full Bench case of Lahore High CourtJagat Ram v. Misar Khairaiti Ram (3), it was held that the question of exercise of discretion viz-a-viz “contumacy” and/or “positive mala fides” in matter of court-fee should be resolved in the sense the expression bona fide is used in the General Clauses Act and not as used in the Limitation Act. And in that context only it was ruled that the discretion “is expected to be normally exercised in favour of the litigant except in cases of contumacy…”

 

(1) P L D 1983 S C 227 (2) P L D 1984 S C 157

 

(3)     A I R 1938 Lab. 361 (4) 1 L R 7 All. 775

 

It may be observed that the reason for applying such strict rule of interpretation in some cases of pre-emption so as to have recourse to section 3 of Limitation Act instead of proper application of Order VII, rule 11 (b) and (c) or for that matter sections 148 and 149, C. P. C. and section 28 of Court Fees Act, was the then prevailing notice that right of pre-emption was

 

redatory. This view suffered considerable change in post-Partirion period( Pin Pakistan. On reason being that it was against Islamic jurisprudence wherein this is a right as much enforceable as any otner right and further that it has a connection with the law of inheritance in Islam as, was observed by Mahmood, J. in Gobind Dayal v. Inayatullah (4), at p. 782 as follows :

 

“Upon the present occasion it is unnecessary to consider whether “gift” can properly be described as a “religious usage or institution” within the meaning of section 24. I am here concerned only with the question whether pre-emption can be so described. My own opinion is that it can, and although I cannot add much to the reasons given by Spankie, J. 1 may observe that pre-emption is closely connected with the Muhammadan Law of inheritance. That law was founded by the Prophet upon republican principles, at a time when the modern democratic conception of equality and division of property was unknown even in the most advanced countries of Europe.”

 

This Court has also adopted the rule that a pre-emptor cannot b disallowed a relief or prayer on account of any such like notion. See Allah)’ Ditta v. Muhammad Ali (1) and Hadayat Ullah v. Murad Ali Khan (2). Similarly, the approach in this behalf in a recent case Jan Muhammad v. Shukeruddin (3) is to the same effect. Thus, it would be no more lawful to deprive a plaintiff or appellant of any relief simply because it happens to be a pre-emption matter. The law as it is, has to be applied without any such consideration. Otherwise it would, besides other consequences, also negate the relevant (Article 31) principle of policy contained in the Constitution, which is not permissible.

 

It is necessary at this stage to examine as to why notwithstanding the physical presentation of a document e.g. a plaint should not be considered as proper presentation if it is otherwise in accordance with the provisions contained in this behalf in section 26 and Order 1V, Rule 1 C. P. C.

 

The cases which have adopted the ordinary rule of interpretation in this behalf proceed on the reasoning that the actual “institution” of “presentation” of a document “in time” cannot be rendered as “beyond time” for purpose of section 3, Limitation Act, simply because the Courts failej to perform properly the act of a revenue collecting agency. A well-known Privy Council case already referred to has been relied upon in many judgments. It is Faizullah Khan v. Mauladad Khan (4). The following observation of the Judicial Committee therein, is of course instructive on question of the duty of the Court to keep separate the two considerations of court-fee collection and bar of limitation:

(1)PLD1972SC59 (2)PLD1972SC69 (3) 1980 C L C 186 (4) AIR 1929 P C 147

 

“But upon a second point-an important point of procedure-their Lordships think it right to add the following :-Granted that a fee had been paid which was insufficient in amount. What was the duty of the Court? In such a case as the present it appears to be pre-eminently one for the exercise by the judicial authority of the discretion for giving an opportunity to add to the amount lodged. the extra Rs. 70 or 80 required or for deferring the question of the amount of fee under the Court Fees Act until final value was ascertained.”………

 

“Even accordingly if the mistake insisted on, had been made, this, in the opinion of the Board, was a plain case for rectifying that situation if it could be done, and the Courts are fortunately furnished with an easy method of doing so : Section 149; Civil Procedure Code” ……………

 

“It will be observed that that discretion extends to the whole or any part of any fee prescribed and can be exercised at any stage in the case, while finally upon the extra payment being made; then the document is to have the same effect as if it had been paid in the first instance. This also answers the argument presented under the Limitation Act. The dates are as follows : The decree of the Subordinate Judge was dated 24th March, 1924 the first appeal was on 27th May and the second on 2nd June, bringing before the appeal Court the respective claims of each suitor. The time for limitation of the appeal is 90 days. and it is thus seen that both appeals were within time. They were not a nullity. On the contrary, they were documents duly presented to and accepted by the Court, and as to the fee thereon. should the valuation be unsatisfactory or in the end insufficient, that is validated by the additional payment, the result of which payment is that the document, namely the memorandum of appeal, stands good for its date. The appeals are accordingly not time-barred.”

 

This Court has also held though in a different context that the institution) of the suit is by presentation of the plaint when it is accepted by the presiding officer “any defects notwithstanding”. See Muhammad Siddiyue v. Zawar Hussain Abidi (1). To the similar effect namely that validity for limitation is not affected by deficient court-fee, are Gavaranga Sahu v.Botokrishna Patro (2) and Hari Ram v. Akbar Hussain (3) wherein it was held) that the plaint is a plaint even if it is not properly stamped. See also Ramgopal Chunilal v. Rumsarup Baldevdas and others (4), George Benjamin Hamvson v.Jeewanmall Bros. (5) and Stuart Skineer alias Nawab Mirza v. William Orde and others (6).

 

It is also appropriate here to state the well-accepted rule about Courts’ attitude towards the collection of court-fee as agent of State. It is to the; effect that the Court Fees Act like the other fiscal statutes is to be construed s strictly and in favour of the subject ; and that it was passed with the object of securing revenue for the benefit of the State and not to arm a litigant with a weapon of tecnicality to harrass his opponent-See Rachappa Subruo v. Shidappa Venkatrao (7), Muhammad Sharif v. hfst. Natho (8) and Sharaf Faridi v. !1-1. S. Shahani (9).

 

(1) P L D 19’6 S C 572 (2) 1 L R 32 Mad. 305

(3) 1 L R 29 All. 749 (4) A I R 1934 Bom. 91

(5) A I R 1935 Sind 225 (6) 6 1 A 126

(7) AIR 1918 P C 188 (8) P L D 1965 Lab. 686

(9)     P L D 1975 Kar. 59

 

One more conclusion that can be drawn from the foregoing discussion is that the failure to supply proper court-fee in the context of the Court Fees Act and section 149 and Order VII, rule 11 (c) can at best be equated with non prosecution and not with non-institution or presentation of the matter/ document nor with the bar of Limitation. Accordingly, considerations in that ; behalf for exercise of discretion under sections 148 and 149 and the relevant provisions of Court Fees Act should be different from those under section 5 of the Limitation Act, which in any case does not apply to the suits. To apply the latter to the former cannot be justified on any rule of interpretation. This is what was thought as the proper approach by the Lahore Full Bench in the case of Jagat Ram (1938) when discovering the meaning of bona fides from the General Clauses Act rather than applying the Limitation Act. In the light of these additional reasons on this subject the rule laid by this Court in the cases of Mst. Parveen (1 983) and Shahna (1983) is re-affirmed. For all these reasons it is accordingly held that when considering the options for exercise of discretion for grant of time for supply of deficiency in the courtfee, considerations relevant to bar of limitation shall not be taken into account.

 

The P. C. case of Staurt Skinner alias Nawab Mirza (1879) is indeed very instructive regarding some salient features of the controversy which are the same today-more than a Century later. 1t is high time that notwithstanding the judicial exercise, the legislative intervention should also be seriously considered on the lines that the law of court-fees might be totally separated from that of Civil Procedure Code. And if the law of Limitation is to be introduced at all in relation to court-fee it should be done clearly and specifically in the law on that subject. In doing so some of the practical aspects pointed out at page 135 of the report in Skinner’s case might serve as guidelines even though the case formally was concerned with the late payment of court-fee by a plaintiff, who gave up the plea to sue in forma pauperis and in the meanwhile limitation period elapsed. Mention is also made of benefit to both sides if lis is adjudicated. The theory or conversion of piece of paper into a plaint only on the day of payment of the court-fee, was rejected without reservation. The following very weighty observations cannot at all be lost sight of even today :

 

“The petition of plaint was placed upon the file and numbered on the 19th of July, 1973 and this is the plaint that is allowed to go on. Although the analogy is not perfect, what has happened is not at all unlike that which so commonly happens in practice in the Indian Courts, that a wrong stamp is put upon the plaint originally, and the proper stamp is afterwards affixed. The plaint is not converted into a plaint from that time only, but remains with its original date on the file of the Court, and becomes free from the objection of an improper stamp when the correct stamp has been placed upon it.

 

“This case, which is not provided for by the Act, approaches more nearly to the state of things contemplated by section 308 than that contemplated by section 310. There are no negative words in the Act requiring the rejection of the plaint under circumstances like the present, nor anything in its enactments which would oblige their Lordships to say that this petition, which contains all the requisites which the- statute requires for a plaint, should not, when the money has been paid for the fees, be considered as a plaint from the date that it was filed. It is obvious that very great injustice might be done if this were not to be the practice. There could hardly be a stronger instance of the mischief which might arise that what would have happened in this case.”

 

The question of finding on fraud by the Court as would be presently highlighted in this judgment was, however, treated on a different footing ; though even then, avoiding an inference of interjection of the law of limitation ; regarding which it was separately clearly observed that the suit shall always tie deemed to have been `instituted’ when the memorandum in that behalf is filed in Court.

 

The reasoning in the Lahore case of Balvant Singh (1947) and those cases which followed it not having been found convincing, the rule laid down therein that the enabling provision contained in Order V11, rule I1 (b) (c) is not applicable to appeals, is not correct. The contrary view in this behalf is accordingly approved and upheld. Thus, the 2nd question on which leave was granted in this case and noted at page a is answered in the affirmative insofar as the application of Order VII, rule 11 (b) (c) read with section 107 (2) and Order XLI, rule 3, C. P. C. to the memorandum of appeal, is concerned. It is to be emphasised that notwithstanding the general discussion on the interpretation of section 107, Order VII, rule I1 and Order XLI, C. P. C. th

 

specific question resolved for the present in this case is only regarding the application of clause (c) read with (b) of Order VII, rule 11 and not the other clauses of rule 11 namely (a) and (d).

 

The remaining issues raised in the leave granting order can be answered straightaway without noticing the vast conflict of authority in that regard amongst the High Courts in the sub-Continent prior to and after the Independence ; because they now stand resolved by this Court in the two well-known judgments of this Court. They are Muhammad Nawaz Khan v. Makhdoom Syed Ghulam Mujtaba Shah and Shah Nawaz v. Muhammad Yousaf and 3 others (11. The later well-known case of Mst. Walayat Kharun gave rise to some questions in its practical application during the last four years. It would also require a deeper analysis so as to remove the so-called conflict which Maulvi Sirajul Haq, learned counsel for the respondents in these appeals, pointed out, of course with respect, is creating some difficulties for the lower Courts.

 

It goes without saying that the two decisions of this Court in the cases of Muhammad Nawaz Knan (1970) and Shah Nawaz (1972) did resolve the controversy regarding application and interpretation of Order VII, rule 11 (c) and section 149 read with 148, C. P. C. They were followed accordingly by the lower Courts as also by this Court, till 1979. It may be mentioned here that the first mentioned case of Muhammad Nawaz Khan was decided by two learned Judges while the second judgment is by a Full Bench of three learned Judges of this Court. Mr. Justice Yaqub Ali who wrote; the first judgment was also member of other Bench. It is also to be mentioned that both the cases are without any note of dissent and there is single judgment in each.

 

In the first case of Muhammad Nawaz Khan the facts were as follows

 

“The petitioners are vendees of agricultural land situated in mauza Matoi, district Muzaffargarh. A suit for pre-empting the sale was filed by the respondent No. 1 which the petitioner contested inter alia on the grounds that it was undervalued and the plaint was insufficiently stamped. The trial Judge framed preliminary issues covering ‘these objections and found the suit undervalued as five out of the eight khatas were not assessed to land revenue and the plaintiff had omitted to compute the value of the rest of the kharas in accordance with the relevant provisions of the Court Fees Act. Instead of requiring the respondent No. 1 to revalue the paint and pay the additional courtfee as required by Order VII, rule 11, C. P. C. the trial Judge, however, proceeded to dismiss the suit on the view that although ample opportunity was afforded to the respondent No. I by the petitioner to revalue the suit and pay the deficient court-fee, he had on the contrary chosen to contest these issues and thereby allowed the period of limitation to expire. The High Court on a first appeal by the respondent No. 1 found the order of the trial Judges contrary to the provisions of section 149 and Order VII, rule 11, C. P. C. under which he was required to allow the plaintiff an opportunity to correct the value of the suit and pay deficient court-fee which shall have the same force and effect as if such fee had been paid in the first instance. The order dismissing the suit was accordingly set aside and the suit remanded to the High Court for allowing the plaintiff to make good the deficiency in court-fee.”

 

The two arguments raised by the counsel were as follows

 

“that cases of undervaluation of relief are excluded from the purview of Order VII, rule 11 (c) and that under section 149 it was within the (1) 1972 S C M R 179

discretion of the trial Judge to refuse an opportunity to make good the deficiency in the court-fee after the limitation had expired” ; and, that “according to the learned counsel on those cases fall under clause (c) of rule 11 of Order VII, C. P. C. in which the relief claimed is correctly valued in the first instance. In other words if the relief claimed is undervalued and as would necessarily happen in every case the plaint is written on a paper insufficiently stamped then neither clause (b) nor clause (c) would be attracted and the case will fall within the ambit of section 149 under which the Court has the discretion to refuse an opportunity to supply the requisite stamp paper.”

 

Both the arguments were repelled. It was observed that the interpretation placed by the learned counsel on section 149 and Order VII, rule 11. C. P. C. was unacceptable. After making some remarks regarding two precedent cases : one of Full Bench from Lahore High Court of Jagat Ram (1938) ; and the other from Peshawar High Court of Sultan Muhammad (1959) ; it was ruled as follows

 

“Apart from these weighty judgments it would, indeed, be anomolous if limitations is not saved in cases in which the law requires the Court to allow the plaintiff to correct the valuation of the relief claimed in the suit which must necessarily entail making up deficiency in the stamp paper affixed on the plaint, but time should automatically be enlarged in cases in which the Court has the discretion to grant time to pay the whole or part of the court fee prescribed. This will- offend against the rule of harmonious construction. The provisions of Order VII, rule 11 and section 149 are, therefore, to be read together. Consequently where the plaintiff is required to correct the valuation of the relief claimed in the suit, he shall further be required to supply the requisite stamp paper and on compliance it shall have the same force and effect us if such fee had been paid in the first instance.”

 

 

 

In the context of the a fore-reproduced declaration of law, it is appropriate here to take note of the judgment of the Peshawar Bench of the High Court of West Pakistan which, as already noted, was noticed when making the said pronouncement. It is a Division Bench judgment in Sultan Muhammad v. Muhammad Yousaf and others (P L D 1959 Pesh. 120). The question involved therein was simple and direct as to whether under Order ViI, rule 11, it was obligatory for the Court to grant time for supplying the deficient court-fee before rejecting the plaint under clause (c) of rule 1 , and, if that were so, how the question of the validity of the plaint at the time of the original presentation was to be resolved. It was held as follows

 

“This provision of law makes it compulsory for the Court before rejecting the plaint to give some time to the plaintiff to make up the deficiency and the Court cannot straightaway reject the plaint without giving such time.”

 

Before answering the second part of the question the learned Judges made comprehensive analysis of the interaction of the provisions contained in section 149, C. P. C. vis-a-vis Order V1I, rule 11 (c), C. P. C. section 28 Court Fees Act vis-a-vis section 149, C. P. C. section 10, Court Fees Act vis-a-vis Order VII, rule 11 (c) ; and also the law of limitation vis-a-vis that of court-fees. It was held that

 

“Looking at all the authorities we have no hesitation in arriving at the conclusion that the date of the institution of a suit should be reckoned from the date of the presentation of the plaint and not from that on which the requisite court-fee is subsequently put in.”

 

It is interesting to note that before embarking upon the exercise of reconciling the deepest known conflict of authority, the learned Judges had made the introductory remark that this question “is attended with considerable difficulty, because the law as enunciated by the different High Courts at different times had created more confusion than clarity “

 

It is further interesting to note what has often been ignored regarding the Full Bench decision of the Lahore High Court in the case of Jagat Ram (1938), namely, that the reference made on these questions through an elaborate order of reference was in reality not answered in the circumstances of that case. And only section 149, C. P. C. was interpreted be the Full Bench in the manner already indicated namely that the exercise of discretion there under is not controlled by or dependent upon the considerations which are relevant under the Limitation Act. This Full Bench case in this behalf, as noticed earlier was, approved by this Court in both the cases of Muhammad Nawaz Khan (1970) and Snah Nawaz (1972).

 

The following weighty findings and observations in the case of Muhammad Nawaz Khan are to be clearly understood and reiterated :–:

 

(a) It would indeed be anomalous if limitation is not saved in cases in which law requires tire Court to allow the plaintiff to correct the valuation of the relief claimed ire the suit which must necessarily entail making up deficiency in the stamp paper affixed on the plaint ; therefore ;

 

(b) Time should automatically be enlarged in cases in which the Court has the discretion to grant time to pay the whole or part of the court fee prescribed ; and

 

(c) Consequently where the plaintiff is required to correct the valuation of the relief claimed in the suit, “he shall further be required to supply the requisite stamp paper and on compliance it shall have the same force and effect as if such fee had been paid in the first instance.”

 

The case of Shah Nawaz (197?,) also needs detailed examination so as to understand the true import of the latter case of Mst. Walayat Khatun. The facts therein were that a person filed a suit for pre-emption on 18th November, 1968 presumably a day before the expiry of the period of limitation but failed to pay the proper court-fee. Subsequently an application was moved for amendment of the plaint and for supplying the deficiency in the court-fee. This application was conteNted by the defendant-vendee but it was allowed by the trial Court. The vendee brought the matter up to the Supreme (:oust where it was argued on his behalf “that in a suit for pre emption the plaintiff should not have been allowed time to put in deficient court-fee if he had deliberately failed to pay the requisite court-fee in spite of the fact that his attention had been drawn to the deficiency in the court-fee by means of the written statement filed by the vendee about one year back”. Reliance was placed on some observations made in regard to the exercise of discretion in the Lahore case of Saeed Ahmad and others v. Karam Singh (P L D 1949 Lab. 380).

 

After making reference to the earlier Full Bench Lahore case of Jagat Ram (in so far as it excluded the consideration of the question of exercise of discretion under the light of the law of limitation) the learned Judges in the case of Shah Nawaz reproduced the rule laid down in the case of .Muhammad Nawaz Khan. The same has already been reproduced in the earlier part of this judgment. Then, before reiterating the rule regarding Order VII, rule 11 (c), C. P. C. to the effect that “the plaint can only be rejected in case where the relief claimed is undervalued and the plaintiff, on being required by the Court to correct the valuation within time to be fixed by the Court, fails to do so”, the learned Judges provided the following two guidelines regarding exercise of discretion under section 149, C. P. C.

 

(a) that whenever the plaintiff is guilty of contumacy he may be refused exercise of discretion under section ; and/or

 

(b) when he acts in a positive mala fide manner in regard to the deficient court-fee.

 

On this consideration in the case before the Court the order of the trial Judg permitting the plaintiff to supply the deficiency in court-fee was upheld, not-1 withstanding the bar of limitation of more than a year.

 

The combined effect of the rule laid down by this Court in the cases of Muhammad Nawaz Khan and Shah Nawaz would thus be that in cases of deficient court-fee which would include in the context of now amended law’ certain exemptions in this behalf, the Court on discovery of an omission/error in valuation of deficiency in court-fee, shall acting under OrJer VII, rule 11(b) and (c) allow time to the plaintiff to make correction and supply the deficiency. If he does so then the plaint shall be deemed to have been validly filed on the date of the original presentation notwithstanding the fact that the court-fee was supplied after the expiry of the period of limitation. If however the plaintiff is guilty of contumacy which terms would be separately explained hereinafter and/or he commits positive act of male fides the plaintiff could be held dis-entlited to further exercise of discretion under section 149 read with section 148 of C. P. C.

 

Contumacy in the context is used in the general dictionary sense and not as a word of art. It means contempt (if lawful authority, obstinacy, or stubborness. It is not difficult to discover the connection of these attitudes with the subject under discussion. If a plaintiff is allowed time to supply the deficiency in court-fee under Order VII, rule 11 (c) as a matter of course and obligation (because, the rejection of plaint cannot take place without doing so) then in case he fails to do so, and asks for more time without some justification, it would amount to his being obstinate and stubborn in ignoring or defying the requirement and authority of law. The repetition of such a conduct would amount to contumacy. Similar interpretation of this word in Sohara v. Rashid Ahmad (P L D 198 1 Lah. 261) by Aftab Hussain, J., as he then was, is approved.

 

Mala fides have also, to be understood in accordance with the well known principles laid down by this Court from time to time. In Federation of Pakistan v. Saeed Ahmad (P L D 1974 S C 151) it was equated with bad faith. And “bad faith” was equated with “malice in fact”, the nature and connotation whereof would depend upon the circumstances of each cast’ and the situation vis-a-vis the personal motives involved. When a thing is done in bad faith against another party concerned in a lis it can partake of “wrongful loss” or “wrongful gain” ; but if none of the other parties to the Us is involved and the act of bad faith is regarding revenue of the State, then it will not ordinarily reflect on the Its between the parties directly. For example in case of public revenue some bad faith, will be projected in an attempt to save money (simpliciter) but “positive” male fide as the phrase as has been used in these cases means more than that, involving vivid consciousness that it is fraudulent. And the same again would depend upon the circumstances of each case.

 

Before proceeding further so as to comment upon the case of Mst. Walayat Khatun it is necessary to clarify another confusion regarding inter-action of Order VII, rule 11 (c) and section 149, C. P. C. It has been held in the afore-analysed cases that it is obligatory to grant time for supply, of deficiency in court-fee betore rejecting the plaint under Order VII, rule 11 (c). It is discretionary however to grant time under section 149, C. P. C. As’ has already seen when explaining contumacy, it is not lawful to reject a plaint` under Order VII, rule 11 (c) without first granting time to the plaintiff to supply the deficient court-fee. Order VII, rule 11 is in a way a penal provision and shall be construed strictly so as not to be resorted to unless the conditions for exercise of such drastic power are satisfied. In the clause relevant here namely (c) it is provided that the plaint shall be rejected there under only when after the grant of requisite time the plaintiff has failed to supply the required/specified court-fee. Thus, it is mandatory and obligatory for the Court to grant time under clause (c). The question of discretion does not arise. And it is so whether the occasion arises at the very institution of the plaint or at a later stage.

 

If as afore-explained time is to be allowed as an obligation under Order VII, rule 1 I (c), then the question arises as to how the `discretion’ element in section 149, C. P. C or for that matter section 28, Court Fees Act can be interjected in it. It cannot be.

 

In some cases difficulty was felt regarding the use of the word “discretion” in section 149, C. P. C. But it was not realised that the time granted under this provision in exercise of discretion, or granted as an obligation under the other namely Order VII, rule 11 (c), would lead similar consequences. Can it be said that if time is granted as a discretionary measure, the party concerned F will get the advantage mentioned in second part of section 149, C. Y. C ,

 

but if it is granted by the Court as its obligation, it will lose that F advantage The answer would be in the negative. Therefore, when time is granted as an obligation under Order VII, rule 11 (c), it is granted nevertheless for supply of deficient court-fee which being the main object of section 149, C. P. C., the advantages thereunder will be available to the beneficiary of the exercise of the obligation also. The further question as to why then the word ‘discretion’ is used in section 149, cannot detain us any longer. There are other occasions for supply of court-fee) stamps under the C. P. C. For example under sections 20 tQ 27 of the Court Fees Act read with the relevant provisions of C. P. C. require the deposit of G of requisite stamps for issuance of the processes. Court might have to exercise discretion in those and other matters for allowing time in this behalf and the considerations of obligation as under Order VII, rule 11 (c), would not be attracted thereto.

 

Same would supply to the advantage under certain provisions of the Court Fees Act-including section 28 thereof. But it is necessary here to deal with the other relevant provisions of Court Fees Act also in the restricted context of the present discussion.

 

It is true that the ‘documents’ mentioned in various sections including H sections 4 and 6 cannot be filed/received unless “proper fee” is paid, therefore section 28 is a general consequential and remedial but residuary provision in that behalf ; but `proper’ stamp is the subject thereof. There is no water-tight compartlisation that it is the duty only of the litigant to look into the what is proper fee or proper stamp and not of the public functionaries concerned. Where one’s duty ends the other’s starts. It is also not difficult to visualise that the `obligation’ and `function’ are complementary to each other. It is in that sense that the phrases “proper fae” and “proper stamp” are to be construed. If the Court has enough time ; it would perform the function immediately on presentation of the document. But the Legislature would be deemed to have known the difficulties and shortcomings. Hence sections 9 and 10 were enacted to help the litigant in some types of cases through an investigation about the proper court-fee. It would in these as also in other cases take time. And in many cases the period of limitation would pass. But notwithstanding the same thane is no provision in the entire Act that the litigant is to be penalised for delay by way of dismissing the case as time. barred. Instead section 12 (1) shows that the matter is one of purely fiscal nature and must end as soon as possible. And under section 12 (2) the revenue in case of deficiency can be collected even by the appellate Court without resort to the (retrospective) dismissal of the plaint as time-barred. When the deficiency regarding the court-fee payable at the trial stage, is discovered during the appeal, the party is to be allowed time to supply the deficiency even at that stage, It is only on his contumacy at that stage also that the consequence like that of non-prosecution as provided under section 10 (if), shall ensue. Then and then only the plaint shall be dismissed on account of such non-compliance with the order of the appellate Court. If, however, he pays, no such consequence would follow regarding any earlier stage -say of the trial proceedings, notwithstanding the fact that they were conducted throughout (according to the finding under section 12(ii), without payment of the proper court-fee. If time would have been the essence of the consideration of the consequence of non-payment of “proper fee” the dismissal of suit for non-prosecution at the earlier stage, would have been accompalished through the appellate forum without affording opportunity of deposit. But that is not visualised by section 12 (ii) when read with section 10 (ii)-the latter also providing that the proceedings shall be stayed till the payment of the proper fee. If it is paid within the fixed time, no injurious consequence shall ensue and the matter would end. !f, however, it is not paid within the time allowed it shall be dismissed for non-prosecution subject to the further extension of time under the law e.g. under section 148, C. P. C. The application of section 19 as already noted is confined to a limited field while sections 12 and 28 are of wider application. But the consequences of payment or nonpayment within the time fixed/extended (though in different language and context) are as discussed above of similar import regarding the advantage of saving the process or losing it for non-prosecution, sections 149 and 148, C. P. C. would apply to them as provisos and savings in addition to the ones inherent in themselves as explained above. The position of Order VII, rule 11 (c), C. P. C. however is different. Nothing in the Court Fees Act derogates from the obligatory character thereof. Therefore, as already held, section 28 of the Court Fees Act or for that matter the other relevant provisions would remain subject to Order VII, rule 11 (c) as understood and applied in the mandatory sense discussed earlier. It further needs to be observed that in this context what is not. permissible when done directly, cannot be permitted to be done indirectly. Therefore, it would not be possible to avoid this consequence by the device that the suit may not be considered at all under Order VII, rule I 1 for rejection of the plaint and thus avoid the obligatory function under clauses (b) and (c) thereof. It is not possible because the very purview of rule 11 which reads that “The plaint shall be rejected . . . . . . . ‘”, makes i mandatory for the Court to do this exercise in all cases where the court-fee is deficient. In other words. on this relevant discovery the Court shall, as an obligation, direct the party concerned to supply the deficiency within the time to be specified and no its failure to do so, of course subject to the other provisions of the law in this behalf, it shall have to reject the plaint or appeal, as the case may be. .

 

Now the stage has reached to state the background in which the well known case of Mst. Walayat Khatun (1979) was decided by a Division Bench of this Court. The last case earlier thereto in which the relevant questions 1 were examined in some detail by this Court, was in 1972. Since 19 1 2 upto

 

1978 there are only few reported cases of this Court in which some question

 

of court-fee were noticed. However, as would be presently shown, no departure was made in any case from what was held in the two cases of Muhammad Nawaz Khan and Shah Nawaz which have already been analysed. These few cases during seven years are Hassan Bakhsh v. Afzal Shah (1974 S C M R 364) wherein a party having been allowed three extensions for supplying the deficiency in court-fee, tailed to do so-it was then held to be not entitled to any further opportunity ; Jan Muhammad v. Ghulam Ghaus (1976 S C M R 141) wherein this Court repelled the argument that the late supply of deficiency in court-fee by a party entitled the opposite party to a benefit under the Limitation Act. It was also found that the counsel concerned justifiably waited for the decision of a relevant controversy by a Full Bench of the High Court and Abdul Ghani v. Muhammad Alam (1976 S C M R 147) in which the plea to avoid rejection of plaint under Order VII, rule 11 (c), notwithstanding sufficient opportunity of supplying the deficiency in court-fee having been afforded, on the ground that tile concerned counsel misunderstood the order of extension of time, was disallowed on the finding that the order concerned was unambiguous and there was no reason to misunderstand the same.

 

In the foregoing background of the consistent and clear law declared by this Court regarding interpretation of Order VII, rule 11 (b) and (c), C. P. C. to the effect that it was obligatory to allow time for supply–of deficiency in court-fee before rejecting the plaint and regarding refusal of discretion under section 149, C. P. C. only on grounds of contumacious and positive mala fide conduct, it is necessary to analyse, interpret and discover the true ratio in the case of Mst. Walayat Khatun. And also to see whether apart from the common ratio there was any point of dissent made therein.

 

This exercise has become essential mainly for two reasons : One, the learned counsel for the respondents in these appeals confidently and with full responsibility of course with expression of due respect, contended that the decision in the case of Kist. Walayat Khatun and subsequent decisions by this Court reported in various law Journals, has led to conflict of authority in the J High Courts ; which according to him has further led to confusion for the litigant public and the Bar. This, he urged, needed to be resolved. And two, this Court in a Full Bench decision in the case of Shahna Khan already referred, has already pointed out that the case of Mst. Walayat Khatun is authority and law declared only to the extent of the common ratio of the two separate judgments, tendered therein.

 

Before considering the case of Mst. Walayat Khatun it needs to be acknowledged that both the learned Judges who wrote the two separate judgments in that case commanded respect as not only very senior members of Superior Judiciary but also on account of their deep and extensive study in the field of Civil Law. With those remarks it is necessary first to state briefly, the facts of that case as noticed in the leading judgment of Muhammad Akram, J. as follows :

 

“Mat. Walayat Khatun petitioner (plaintiff on 9-2-1976 filed a suit for possession by pre-emption of agricultural land measuring 14 Kanals 9 Marlas situated in village Gulmeri, Tehsil and District Mianwali ostensibly sold for Rs. 12,000 vide registered sale-deed, dated 11-2-1975. It is not necessary to narrate all the facts in detail for the purpose of the present order It will be sufficient. to mention here that the plant was stamped with a court-fee of Rs. 2 only and it was stated therein that the deficiency in the court-fee shall be made good after ascertaining the net annual profits for the land after having obtained the fard jhar pedawar for it. In these circumstances while entertaining the plaint, in the absence of defendant, the Court on 10-2-1976/ directed the plaintiff to make good the deficiency in court-fee before 18-3-1976. In spite of this the deficiency in the court-fee was not made good until on 12-4-1976, 24 days after the extended time allowed by the Court. Therefore, the defendant raised the objection that the plaint was not properly stamped and that there was neither any sufficient ground for the grant of time to the plaintiff to make up the deficiency in the court-fee nor the deficiency in the court-fee was paid within the time allowed by the Court and as such there was no sufficient ground for condonation of the delay committed by the plaintiff to make up the deficiency in court-fee. In these circumstances the learned Civil Judge accepted the objection and dismissed the suit/rejected the plaint undtr Order VII, rule 11, C. P. C. on 6-7-1977. Th: plaintiff/petitioner filed an appeal but without any success and the same was dismissed by the learned Additional District Judge, Mianwali, on the 5th December, 1977. the plaintiff/petitioner then filed a second appeal in the Lahore High Court, (R. S. A. No. 46 of 1978) which was dismissed by a learned Single Judge of that Court on 19-2-1977. The petitioner has now come up to this Court in this petition for special leave to appeal.”

 

One main aspect of the afore-noted facts, it is to be emphasised, was that the plaintiff having been allowed one month and eight days by the trial Court obviously under Order VII, rule 11 (c), C. P. C. to supply the deficiency in court-fee, not only failed to avail of this period but also consumed another 24 days in addition thereto, without supplying the deficiency. Notwithstanding this aspect of the case the learned counsel for the plaintiff (petitioner in the Supreme Court) argued that all the three Courts below were in error on facts of the case because the plaintiff could not supply the deficiency in court-fee on account of being unaware of the annual net profits. In this behalf it was noticed in the leading judgment that the plaintiff had got prepared a statement profits privately from the Patwari and that after the institution of the suit a formal effort was made for obtaining the said statement. It was also affirmed that the plaintiff had deliberately paid inadequate court-fee of Rs. 2, but it is important that this alone was not considered as enough for non-suiting her because the learned Judge further observed that “the Court however allowed the extension in time to the plaintiff to make up the deficiency in the court-fee on or before 18-3-1976 in accordance with rule I1 of Order VII of the Code of Civil Procedure. In spite of this the petitioner failed to comply with the order within time for any valid reason to the satisfaction of the trial Court.” In this very connection it was further noted that no reason was advanced before the First Appellate Court for the delay even up to 12-4-1976. The learned Judge further observed that these findings by the two Courts below were upheld by the High Court in Second Appeal because “no cogent reason was at all assigned by the plaintiff on the record for this further delay in depositing the deficiency in court-fee” “In these circumstances”, it was held in the leading judgment, “the trial Court was justified in rejecting the plaint in exercise of the discretion vested in it (meaning thereby that the refusal of the trial Court to grant any further extension of time was held justified). Likewise the two appellate Courts have also declined to interfere with the order for good and sufficient reason we also see no force in this ‘position. It has no merits and is, therefore, dismissed.” The learned Judge had also made mention of three provisions presumably found relevant in reaching the afore-described decision. They are section 28 of the Court Fees Act, which provides that no document which ought to bear a stamp under this Act shall be of any validity unless and until it is properly stamped ; section 149, C. P. C., which provides that the Court may in its discretion at any stage allow the supply of deficient court-fee and upon such payment the document concerned “shall have the same force and effect as if such fee had been paid in the first instance”-section 28 supra also provides that “on being stamped accordingly the same (the said document) and every proceeding thereto shall be as valid as if it had been properly stamped in the first instance”; and lastly, section 148 of C. P. C. was referred which provides that where once a period is fixed or granted by the Court for doing of any act (for example as under section 149, Order V11, rule 11, C. P. C.) “the Court may in its discretion from time to time enlarge such period even though the period originally fixed or granted may have expired”.

 

This decision cannot be assumed to have dissented from two judgments’ of this Court in the cases of Muhammad Nawaz Khan and Shah Nawaz rendered by two separate Benches of this Court, which also included eminent Judges. No attempt was made either to distinguish or make departure from the said well-known judgment. The initial refusal of the learned trial Judge to reject the plaint with deficient court-fee without allowing at least one obligatory opportunity under Order V1 I, rule 1 I and the grant of such an opportunity to the plaintiff as an obligation (and also automatically) as ruled in the case of Muhammad Nawaz Khan, was approved and not at all disapproved. On the contrary it was specifically noted that “in spite of this” the plaintiff failed to supply the deficiency within the extended period. It was further noted that she failed to supply the same during a further (second period) of 24 days. And notwithstanding the same she having had the benefit of privately prepared statement of net profits. further failed to place on record upto the High Court stage any reason at all for this further delay in depositing the deficiency in the court-fee, she was held no more entitled to indulgence by the Court. In other words, her case was deemed to have been covered by one of the two alternatives mentioned in the case of Shah Nawaz ; namely, contumacy without even an assertion . of a reason for the repeated default. Therefore, leave to appeal was refused to her. No other interpretation of the decision in the leading judgment in Mst. Walayat Khatun’s case is possible.

 

It is pertinent to note here that the use of word we regarding the decision reached in the leading judgment analysed above is significant. Thus, in so far as that judgment and reasons therein are concerned both the learned Judges concurred in the same. That undoubtedly, therefore, is the common ratio in the decision of Mst. Walayat Khatun’s case. This supposition is supported) with the opening words in the separate judgment rendered by the second learned Judge-Karam Elahee Chauhan, J. It reads : “I agree with my

learned brother”. This should close the discussion on this subject with the remark that thus for there is nothing in the said judgment to show that it declared any law different from that in the two earlier cases and could not be cited in preference thereto. But the discussion would not be complete without going into the effect of the other judgment.

 

The detailed second judgment commences with the quotation of section 28 of the Court Fees Act. Sections 4 and 6 thereof are then mentioned with particular reference to the law of validity of the document mentioned therein. Along therewith is also the statement regarding section 149, C. P. C., its heading and contents. This section is described as a great concession because it saves the document from dismissal “both for want of proper court-fee or for consequently becoming time-barred, by the time the deficiency is made good.” It is also observed that it (section 149) is a salutary provisions which purports to save litigants from drastic effects of a fiscal statute, where emphasis is more on realization of Government revenue than to punish them for honest mistakes. Then more specific reference is made to the dismissal of suits as time-barred under section 3 of the Limitation Act if instituted after period of limitation without then holding that the initial presentation of the plaint would not be “institution” thereof under section 26 read with Order IV, C. P. C. It was repeated that the resort to section 28 of Court Fees Act and section 149, C. P. C. when reckless “may destroy the plea of limitation available to a defendant”. It is in this strain that several other factors in addition to contumuclousness and positive male fides were added by analysing different instances in which the vested right vis-a-vis limitation, was interjected as a positive consideration. Lest further analysis by us of these factors, as given in the second judgment, might lead to any further misunderstanding, it is being avoided except the remark that the decision in the second judgment on merits then proceeded on additional different considerations then those which, as held above, are the common ratio in the leading judgment of Muhammad Akram, J.

 

It is necessary to repeat that the wider question of limitation, which as already noticed in the general discussion, has been the major consideration in some of the High Courts which followed the restricted view of exercise of powers under Order VII, rule 11 and sections 149 and 148, C. P. C. and section 28, Court Fees Act, was not made the basis of the leading judgment. On the other hand, it is not at all mentioned therein. It is an additional factor in the second judgment which, with respect, cannot be considered as common ratio between the two judgments nor can it be considered as the deciding factor in the case, nor as the law declared.

 

At this stage it needs to be mentioned that it is not unusual for a Court consisting of a Bench of more than one Judge to render a decision consisting of more than one judgments. It is obvious from the analysis of the decision in the case of Mst. Walayat Khatun that Mr. Justice Karam Elahee Chauhan, with respect, insofar as his individual opinion is concerned wanted to express a more strict view of the legal provisions involved in the matter. He was aware that that strict view was not followed by this Court in the cases of Muhammad Nawaz Khan and Shah Sawaz nor was adopted by Muhammad Akram, J. in his leading judgment in that case of (Hsi. Walayat Khatun), to which the former had agreed and which had become the common decision. But he also wanted to place on record the other more strict view of the matter. This method of expression of an

 

opinion containing a line of dissent also, in addition to or apart from the general line in the decision of the Court, is not in any way improper nor was against any accepted practice; which in so far as the development of law is concerned is a healthy practice. But that would not mean that the learned second Judge, with respect, tried to overrule tile cases of Muhammad Nawaz Khan and Shah Nawaz by expression of such single opinion in addition to the common decision rendered in the leading judgment, to which he had agreed. These cases would not be de–med to be overruled or even departed from. That being so the law laid down by this Court in cases of, Muhammad Nawaz Khan and Shah Nawaz would continue to hold the field and contain the law declared, notwithstanding the judgment in the case of Mst. Walayat Khatun.

 

The foregoing interpretation of the decision in the case of Mst. Walayat Khatu.n also finds support from a judgment written by Karam Elahee Chauhan, J., a year after the decision in that case to which one of us (Aslam Riaz Hussain, J.) was also a party. It is the case of Muhammad Shatif v. Maysood Ali (1979 law Notes S C 470). Incidentally this case is on facts almost identical to, and would govern, both the cases before us. Muhammad Sharif the petitioner in the Supreme Court (the plaintiff in a pre-emption suit) raised objection during first appeal filed by the unsuccessful vendee-defendant, to the effect that the appeal having been insufii iently stamped had, by the time the discovery of the insufficiency was made, become time-barred. The defendants-vendees filed application for permission to supply the court-fee. It was allowed and the court-fee was accordingly paid. The vendees’ appeal, however was, subsequently dismissed on the ground that the supply of the deficiency in the court-fee was at a time when the period of limitation for filing the appeal had expired. On second appeal the Lahore High Court set aside the judgment of the First Appellate Court by rejecting the said plea of limitation and remanded the case for decision on other on issues on merits. The plaintiff then came to the Supreme Court. The argument of the plaintiff that the defendants should have stamped their appeal properly in accordance with the law of court-fee, and that it was not a case for extension for making good the deficiency of court-fee, as also because allegedly a right bad accrued to the plaintiff on ground, of limitation (as was held by the lower Appellate Court), was rejected with very weighty observations as follows :

 

“No doubt, ignorance of law, generally speaking, is no excuse, but then each case depends on its own facts and circumstances. In the instant case, it is a common ground, that the appeal bore the same court-fee which had been filed by the plaintiff-petitioner himself on his plaint and the same was the quantum of court-fee shown in the judgment and a decree under appeal before the learned Additional District Judge. The defendants thus were led in trap by the court-fee fixed on the plaint and the learned Additional District Judge had rightly granted them time to get fard khalis munafa prepared so as to fix the court-fee in accordance with the new scale or standards which had in the meantime come into operation. It was, therefore, not a case merely of ignorance of law, but, there was some element of mistake, firstly due to the endorsement of the Registry of !he District Judge that the appeal was correctly stamped and secondly due to the amount of the court-fee which had been affixed on the plaint and which was so shown in the relevant copies of the judgment and decree granted to the defendants.

 

 

The question was essentially one of discretion and if the High Court in the regular second appeal rectified the mistake committed by the learned Additional District Judge and passed an order which ought to have been passed by the latter, the High Court committed no mistake warranting interference by this Court.”

 

Thus, the point regarding limitation which was the mainstay of the judgment impugned before the High Court, was not given any importance in the consideration of the question of grant of time regarding supply of deficiency in the court-fee in the exercise of powers in this behalf whether under Order .11, rule 11, read with section 107 (2), C. 1′. C.; or under section 149 read with section 148, C. P. C. ; or under various provisions of Court Fees Act. It may further be observed that the judgment in the said case of Muhammad Sharif can also be considered as an authority for the view that the court-fee on appeals would be leviable in ; accordance with the law as it prevailed at the time of filing of the appeal _P and not that which applied to the suit. And this very view we have already adopted when approving the judgment of the Lahore High Court in the case of Syed Manzoor Hussain Ghazi (P L D 1972 Lab. 743). Be that as it may it needs to be observed that the opinion expressed by the same learned Judge in Mst. Walayat Khatun’s case a year earlier was not treated as !he law declared by the Supreme Court for the obvious reasons already discussed including the one that it did not form the common ratio.

 

Another projection of this interpretation of Mst. Walayat Khatun’s case by the same learned Judge is found in the leave granting order, dated 18th July, 1979 (again more than a year after the decision in Mst. Walayat Khatun’s case) in Civil Petition No. 596 of 1978 out of which present Civil Appeal No. 136 of 1979 had arisen. This leave granting order was also written by Karam Elahee Chauhan, J. to which one of us (Muhammad Afzal Zullah. J.) was a party. The questions noted in another leave granting order (in Civil Appeal No. 173 of 1978) as have now been discussed in this judgment, were by reference noted for examination , obviously because Mst. Walayat Khatun’s case was not deemed as having finally resolved them. In the light of the foregoing comment in this behalf, it is accordingly had that the strict view expressed – in the second judgment in Mst. Walayat Khatun’s case is not the common ratio of the decision and has to be treated as individual opinion of one learned Judge as discussed in this judgment and it -was yet to be made the subject for a fuller examination by the Court.

 

This controversy (which as expressed by the learned counsel for the respondents some amount of confusion) having ended, a short comment is necessary, with regaid to the decisions by the High Courts and this Court after the decision in Mst. Walayat Khatun’s cage wherein either it was referred to directly or kept in mind indirectly. Learned counsel is somewhat right in stating that two lines of approach-one strict and the other liberal, can be seen in these cases. In view of the foregoing discussion and decision on vital questions involved in the controversy it is not necessary to discuss all these subsequent judgments except that they shall be deemed to be judgments in the facts and circumstances of those cases. And that the cases of Muhammad Nawaz Khan and Shah Nawaz shall be deemed as having declared the law holding the field, as explained and held in this judgment.

 

It is hoped and desired that the controversy would be deemed to have been set at rest and not even seemingly disrespestful and unguarded remarks would be made in regard to the case of Mst. Walayat Khatun one way or the other ; and the judgments in Sohara v. Rashid Ahmad and others and in Muham nad Siddiq v. Muhammad Ibrahim as also any other case in that line, would have to be read and construed accordingly ; though some of the views expressed therein might have otherwise been, upheld in this judgment. The treatment of the subject in any manner other than with respect is thus not approved.

 

With the foregoing remarks and the discussion on various controversial questions and their ansNers vis-a-vis the difference of opinion amongst the High Courts of the Sub-Continent and while interpreting and adopting the view expressed in the cases of h1uhammad Nawaz Khan and Shah Nawaz as explained and held in this judgment, these appeals are allowed with the remand of both the cases as directed in the short orders already. passed. They read as follows :

 

“Civil Appeal No. 1174 of 1978

 

For the reasons to be recorded later the appeal is allowed and the case is remanded to the first appellate Court for re-decision of the appellants’ paying the court-fee in accordance with the then amended law, within six weeks from today. There shall be no order as to costs.

 

Civil Appeal No. 136 of 1979

 

For the seasons to be recorded later the appeal is allowed and the case remanded the first appellate Court for re-hearing the appellant’s appeal without being influenced by the observation made by the High Court, but subject to the appellant paying the deficiency in the court-fees paid by him for the first appeal (this sum as agreed by both the learned counsel is Rs. 171 within six weeks from today.

 

There shall be no order as to costs.

 

Appeal accepted. Case remanded.

 

Print Friendly, PDF & Email