MUHAMMAD REAZ AKHTAR CHAUDHRY, CJ.---This appeal with leave of the Court is directed against the judgment and decree of the High Court of Azad Jammu and Kashmir dated 24-12- 2004, whereby the appeal filed by the appellant was dismissed for non-payment of Court-fee.
2. The relevant and necessary facts for the disposal of instant appeal are that the respondent (plaintiff) brought a suit for recovery of Rs,44,899 in the Court of Senior Civil Judge Rawalakot. After the trial of suit, it was decreed to the extent of Rs,36,899. Feeling aggrieved from the said judgment and decree, the appellant filed an appeal in the Court of learned District Judge Poonch, Rawalakot.
The said Court dismissed the appeal. Feeling dissatisfied from the finding of the learned District Judge, the appellant filed an appeal in the High Court which was dismissed vide judgment dated 24-12-2004 on the ground that the appellant has not paid the court-fee, therefore, his appeal is incompetent and is not maintainable. Against this judgment of the High Court, a petition for leave to appeal was filed in this Court. The leave was granted on 4-4-2005. Arguments were heard in this appeal on 30-10-2006.
3. Syed Nazir Hussain Shah Kazmi, the learned counsel for the appellant, argued that the learned Single Judge of the High Court has wrongly dismissed the appeal for non-payment of court-fee.
The learned counsel further contended that it was not a case of non-payment of court-fee but it was a case of deficiency of court-fee because the Court-fee of Rs,2/- was affixed on the memo. of appeal before the High Court. An application was also moved by the appellant for permission to make up the deficiency in court-fee but this application was neither considered, nor disposed of by the learned Judge in the High Court The appeal was dismissed on technical ground for non- payment of court-fee. He further submitted that under section 149 of the Code of Civil Procedure it was enjoined upon the learned Judge to dispose of the application of the appellant for the deposit of court-fee. It was further argued by the learned counsel that, assuming for the sake of arguments, had there been no application for depositing court-fee, even then it was the duty of the learned Judge of the High .Court to order the appellant to deposit the remaining court-fee and in case of failure of appellant to comply with the order of Court', the appeal should have been dismissed, but the learned Judge has failed to 'consider section 149 and Order VII, rule 11 of C.P.C. which clearly contain that a chance should be provided to the party for depositing the court-fee.
The learned counsel referred a' case titled Executive Engineer Building Division Mirpur and 4 others v. Raja Muhammad Nawaz Khan and Company PLD 1994 SC(AJ&K) 32 in support of his contention.
4. While controverting the arguments of the learned counsel for the appellant, the respondent himself argued that the judgment of the High Court is perfectly legal and it is based on solid and cogent reasonings, therefore, the same does not require any interference by this Court.
5. We have heard the learned counsel for the appellant and the respondent and perused the relevant record. A perusal of the judgment of the learned District Judge clearly shows, that he has decided the case on merits, although the point regarding the deficiency of court-fee was raised before him, but it was not decided. The learned Judge of the High Court has not gone into the merits of the case and dismissed the appeal simply on the ground that the appellant has not paid the court-fee either before the District Judge or before the High Court, therefore, his appeal is incompetent for non-payment of court-fee. The learned Judge of the High Court has not decided the case on merits.
6. Now the, question arises whether the learned Judge of the High Court has rightly dismissed the appeal on the ground of non-payment of court-fee? The learned Judge has not gone through the provision of law and dismissed the appeal for non-payment of court-fee. Section 149 of C.P.C. is very-clear on the subject. It clearly contains that where whole or any part of any court-fee prescribed for any document by law for the time being in force relating to Court has not been paid, the Court may in its direction at any stage allow the party to pay the whole or any part of such court-fee. On payment of court-fee the document in respect of which the fee was payable shall have the same force and effect as if such fee had been paid in the first instance.. It is pertinent to note that where any court-fee is provided regarding any document or suit, then the institution of suit will not be legal if such court-fee is not paid, but section 149 is an exception to this rule. It conveys that it is the duty of the Court to ascertain the deficiency of court-fee affixed on the plaint and give time to the plaintiff to make up the deficiency. If the plaintiff complies with the order of Court, then the defect in the plaint shall be deemed to have been removed from the date of its institution. This view finds support from a case reported as Ch. Nazir Ahmed v. Abdul Karim and another PLD 1990 SC 42. .
7. It is to be noted that where the Court found that plaint was not properly stamped, then the proper course would be an order under section 10 of the Court Fees Act to direct payment of requisite court-fee. Such order could. also be passed by the trial Court under sections 6 and 28 of the Court Fees Act in conjunction with section 149 of C.P.C.
8. It would also not be out of place to mention here that when any plaint or documents are presented to a Court of law, then it is the duty for the staff of the Court to examine the documents and ensure whether these are properly stamped according to the provisions of Court Fees Act. A party should not be penalized for the negligence of his counsel or staff of the Court because the Court Fees Act is a taxing statute, which would be interpreted in favour of subject. This view finds support from a case reported as Zafar Ali Mirza v. Mst. Kalsum Begum 1989 CLC 1211 wherein it has been held as follows:-- "It is true that it is the responsibility of a counsel to devote proper attention and care to cases of his client and put in documents in a case properly stamped as required by the law for the time being in force. With that statement of the learned District Judge, one cannot have any dispute. It has come to the notice of this Court that counsel do not exercise that care and attention which is expected of them in handling the case. of their clients. The result is that the poor litigants have to suffer from the mistakes of their counsel. Viewed from that point of view, the attitude of the learned District Judge is quite justified in not condoning the delay, in affixing the proper court-fee stamp to the appeal. If the matter were as simple as mentioned above, I would have not the least hesitation in upholding the judgment of the District Judge. Litigants and their counsel are expected to bestow due care and attention to be very careful and conscious of their responsibilities in presenting documents and pleadings in Courts of law and in prosecuting their cases. If they are so careless as not to produce documents properly stamped as required in Courts, they do not deserve any indulgence.
This is one side of the picture but there is another side also.
While Courts should insist upon utmost care and attention on the part of the litigants and their counsel in prosecuting their cases, in the instant case in the production of documents, responsibility lies also on the officers of the Court to discharge their duties properly, when any pleading or documents is presented in Court of law, it is the duty of the Court and its clerical staff to examine the documents and see if it is properly stamped according to the provisions of the Court Fees Act. In the case of any pleadings, the first duty of the Court and its concerned staff is to examine whether all the documents are in order and documents requiring stamp and/or court-fee have been properly stamped. In case of appeals, as soon as a memorandum or appeal is presented the official concerned has a duty to report about the completeness of papers of appeal, competency of the appeal to that Court and so on and so forth. These duties are (i) the presentation is made by the proper party, (ii) all the necessary papers are filed, (iii) sufficient court-fee has been paid/affixed, (iv) the presentation is within the prescribed period of limitation and (v) the appeal lies to the Court.
The official shall also record the date of such presentation, the memorandum shall be laid before the Judge the same day, in case of absence of the Judge, on the day he next sits.
So when I apply the above principles to the present case, it is clear that it was the duty of the clerk and Presiding Officer as well when the memorandum of appeal was presented to see whether it was properly stamped with the appropriate Court-fee stamp. As I said earlier, nobody has cared to look at it whether it was properly stamped or not. If the Presiding Officer or the clerk concerned had cast a cursory glance at the memorandum of appeal, it could at once have been seen that it did not bear proper court-fees.
The duty of the Court and clerk was to point out this deficiency to the counsel of the appellant, so that he would have made up the deficiency, the consequence had to be borne by him. But in the absence of anything of the sort having been done, I cannot penalize the appellant/petitioner for negligence both of his counsel as well as to the Court establishment. I might use rather peculiar language and say that the poor litigant should not suffer for the contributory negligence of his counsel and Court officials. When neither the counsel of the appellant/petitioner nor the Court officials have performed their duty in accordance with law, the benefit should go to the appellant/petitioner because the Court Fees Act is a taxing statute and according to the well- recognized principles of interpretation a taxing statute should be interpreted in favour of the subject."
9. It is to be noted that while interpreting the statute, the Court has to consider that what was the intention of the Legislature and what was the object of the enactment? Intention is the essence of a statute and the intention of Legislature as embodied in the statute constitutes the law thereof; while the legislative purpose is the reason as to why the particular enactment was passed. This view finds support from Allied Bank of Pakistan Ltd. v. Income Tax Appellate Tribunal etc. 2000 PTD 2872 wherein it has been observed as under:-- "It is also pertinent to note that while interpreting the .Statutes, the Court has to see that what was the intention of the legislature and what was the object of the provisions? Intention is the essence of the Statute and the intention of the legislature as embodied in the statute, constitutes the law thereof. Naturally, the legislative purpose is the reason that why the particular enactment was passed by the legislature because the reason was to remedy some existing evil or to correct some defect in the existing law or to create a new right or a new remedy."
10. The plain reading of the Court Fees Act clearly conveys, that the basic intention of the Legislature and the purpose for the enactment of the Court Fees Act was to recover the revenue and not to penalize the litigant public for non-compliance of any provision of the Court Fees Act. It is also settled principle of law that the provisions of Court Fees Act and other fiscal statutes were to be construed strictly in favour of subject because the basic object of all these statutes is to secure revenue for the benefit of the State and not to harm the litigant with the weapon of technicality.
Where any provision is open to two reasonable possible interpretations, then the one favouring the taxpayer should be adopted. This view finds support from Allied Bank's case, referred to above, wherein it has been observed as follows:-- "Now, the question which perturbs our mind is that what was the object of section 134(5) of the Income Tax Ordinance? The basic object of the aforesaid provision was to secure the revenue for the benefit of the State. The provisions of the Income Tax Ordinance, Court Fees Act and other fiscal Statutes were to be construed strictly in favour of the Subjects and the basic object of all these Statutes is to secure the revenue for the benefit of the State and not arm the litigant with a weapon of technicality.. This view finds support from PLD 1984 Supreme Court page 289 relevant page 315 which reads as under:-- 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 the effect that the Court Fees Act like the other fiscal Statutes is to be construed 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 technicality to harass his opponent.'
It is thus crystal clear that the basic object of section 134(5) regarding the deposit of the Court-fee was to secure the revenue for the welfare of the State and not to arm the litigant public with the weapon of technicality.
It is also well-settled principle of law that where a provision is open to two reasonably possible interpretations, then the interpretation which favours the taxpayer has to be adopted. This view finds support from 1993 CLC page 1666 relevant page 1669 which reads as follows:-- In any case, the Rule being a taxing provision it has to be strictly construed that is to say, if it is open to two reasonably possible interpretations, then that interpretation which favours the taxpayer has to be adopted. It must follow, therefore, that the Registering Officer acting under the Registration Act, cannot decline to register a deed other than a sale-deed on the basis that-the tax under the Ordinance and the rules, has not been paid.'
11. It is important to note that the provisions of Court Fees Act itself clearly reveal that the basic object of provisions of Court Fees Act was to recover the court-fee and not to penalize the party.
Sections 10 J and 28 of the Court Fees Act are very much clear. For having proper perception we would like to reproduce the aforesaid two provisions of Court Fees Act which reads as follows:-- "10. If in the result of any such investigation, the Court finds that the net profits or market value have or has been wrongly estimated, the Court, if the estimation has been excessive, may in its discretion refund the excess paid as such fee but, if the estimation has been insufficient, the Court shall require the plaintiff to pay so much additional fee as would have been payable had the said market value or net profits been rightly estimated". `28. No document which ought to bear a stamp under this Act shall be of any validity, unless and. until it is properly stamped but if any such document is through mistake or inadvertence received, filed or used in any Court or office without being properly stamped, the Presiding Judge or the head of the office, as the case may be, or in the case of a High Court, any Judge of such Court, may, if he thinks fit, order that such document be stamped as he may direct; and on such document being stamped accordingly, the same and every proceedings relative thereto shall be as valid as if it had been properly stamped in the first instance."
12. The aforesaid provisions of Court Fees Act clearly convey that where court-fee is not paid in; whole or in part, the party should not be penalized simply for the reason that the court-fee has not been paid. A chance should be provided to party for making up the deficiency or for payment of court-fee and the Court should take it liberally instead of penalizing the parties. The basic object of these provisions is to recover the revenue and not to penalize on technical grounds. This view finds support from Zafar Ali Mirza v. Mst. Kulsum Begum 1989 CLC Karachi 1211, relevant 1215 wherein it has been observed as follows:-- "I would begin with section 28 of the Court Fees Act. From bare reading of section 28, it is very clear that if any document through mistake or inadvertence is received or filed in a Court, without being properly stamped, the Presiding Officer has to order that it be properly stamped. In the instant case the memorandum of appeal had been filed or received in the Court without the mistake having been detected at the presentation but when it was brought to the notice of the Court that it was not properly stamped, the Presiding Officer should have directed the defaulting appellant/petitioner to make up the deficiency. After instructions were given to the appellant to make up the deficiency, if he had failed to do so, there would be justification for the Court to dismiss the appeal but this procedure has not been followed in the case. On the other hand when it came to the knowledge of the Court that this appeal was not properly stamped, the Court straightway went to hear arguments and then dismissed the appeal. Under section 149 of the Code of Civil. Procedure also the Court has ample power to allow a person to make good the Court-fee within the time to be fixed by the Court and the result in both cases whether it is a case covered by section 149, C.P.C. or by section 28 of the Court Fees Act, if the deficiency in the stamp or court-fee is made up within the time fixed by the Court, the document shall be taken as if proper fee had been paid in the first instance. There are a catena of cases which hold that the proper course in such cases is to direct the party concerned to make good the deficiency in court-fee. Without an opportunity being given to him if the order is passed adverse to that party, such order has been held to be bad."
13. We may also have reference in this regard from a case reported as Rashid Ahmad and another v. Khurshid Ahmad Khawar and another 1985 CLC 274 wherein it has been observed that the purpose of Court Fees Act is to secure revenue for the State and not to arm the litigant public with a weapon of technicality to be used against the adversaries. If this being the purpose of law of Court Fees Act which undisputably it is, it ought not to be used to throw out a litigant, who has come to seek relief and redress from the Court.
14. In the instant case court-fee of Rs,2/- was affixed on the memo. of appeal before the High Court and an application was moved by the appellant for making up the deficiency, but this application was not considered by the learned Judge and he dismissed the appeal simply on the ground for non-payment of court-fee. He did not provide a chance to the appellant for making up the deficiency. Therefore the order passed by the learned Single Judge of the High Court dated 24-12- 2004 is not sustainable. It is thus hereby set aside and the case is remanded to the High Court with the direction that the High Court shall provide a chance to the appellant for making up the deficiency of court-fee and decide the appeal after considering the merits of the case.