' MEHMOOD MAQBOOL BAJWA, J.--- Suit for recovery of Rs,6,50,000/- was instituted on 12-7-2002 by present respondent against the petitioner under Order XXXVII of The Code of Civil Procedure (Act V of 1908) on the base of demand promissory note statedly executed by the petitioner on 7-1-2002.
The plaint was presented before the learned trial Court on 13-7-2002 whereby notice was directed to be issued in the name of present petitioner with direction to respondent to pay the court-fee uptill next date of hearing i.e, 29-7-2002. On the said date copy of challan form showing the deposit of amount to purchase court-fee was submitted before the Court and it was adjourned for further proceedings. Since the deficiency of court-fee was riot made, therefore, on 3-2-2003, application under Order VII, Rule 11 of The Code of Civil Procedure, 1908 was made by the present petitioner, adjourned for written reply with the direction to make up deficiency of court-fee to the tune of Rs,15,000/- uptill 7-3-2003. However, on 7-3-2003, the order was not complied with and the learned trial Court again directed the respondent to pay the court-fee uptill 31-3-2003, when the requisite court-fee was deposited and as such application under Order VII, Rule 11 read with section 151 of The Code of Civil Procedure, 1908 was dismissed being infructuous on 25-4-2003.
' Application under sections 114, 151 and Order XLVII, Rule 1 of The Code of Civil Procedure, 1908 was made for recalling the order, which, however, was also dismissed on 27-3-2006. Orders of learned trial Court have been called in question at the instance of petitioner.
2. Learned counsel for the petitioner contended that since the petitioner instituted suit for recovery of specific amount, therefore, was obliged to affix court-fee on the plaint but with mala fide intention he did not pay the court-fee and as such direction was issued by the learned trial Court to the respondent to make up deficiency of court-fee uptill 29-7-2002 but the said order was not complied with. Submitted that though the respondent placed on record copy of challan form dated 26-7-2002 showing that ' amount has been deposited in the government treasury to purchase stamp paper but even then he did not make up deficiency of court-fee even after expiry of period of seven months when application for rejection of plaint was made on 3-2-2003 and on the same day direction was issued to the respondent to deposit court-fee to the tune of Rs,15000/- uptill 7-3-2003 but again the said order was not complied with and again indulgence was shown by the learned trial Court to the respondent to deposit the court-fee uptill 31-3-2013 and the court- fee was paid on the said date. Submitted that in fact present respondent did not deposit the amount to the tune of Rs,15000/- in the treasury for purchase of court-fee and just deposited the amount to the tune of Rs,5000/- in the treasury as is evident from the reply submitted by respondent. Argued that despite issuance of direction to deposit court-fee vide order 13-7-2002, said order was not complied with uptill 31-3-2003 but contumacious and mala fide act of the respondent was not taken into consideration by the learned trial Court. Seeking help from the dictum laid down in "ASSISTANT COMMISSIONER AND LAND ACQUISITION COLLECTOR, BADIN v. Haji ABDUL SHAKOOR and others" (1997 SCM R 919) and "PROVINCE OF PUNJAB and others v. REGISTRAR, FIRM NASARUL HAQ ASSOCIATES and others" (1998 M LD 2062), it was submitted that since conduct of the respondent was contumacious and mala fide, therefore, no indulgence could have been shown to the respondent. Argued that application under sections 114 and 151 of The Code of Civil Procedure, 1908 made by the petitioner was declined by the learned trial Court in utter disregard of settled proposition of law and keeping in view the yardstick contained in the said provision. Argued that the orders of learned trial Court are result of exercise of jurisdiction illegally and with material irregularity and as such are liable to be set aside while accepting the application made by the petitioner under Order VII, rule 11 of The Code of Civil Procedure, 1908 for rejection of plaint.
3. On the other hand, learned counsel for respondent contended that there is nothing on record to suggest mala fide on the part of present respondent. Making reference to the order dated 29-7- 2002, it was submitted that challan form showing the deposit of amount to purchase the stamp- paper was submitted in the Court on said date and as such the' respondent liquidated his liability.
Submitted that stamp papers were not provided to the respondent and the moment it was supplied, deficiency was made up on 31-7-2003. Argued that since the order regarding deficiency of court-fee was complied with, therefore, learned trial Court rightly declined the application for rejection of plaint. Further argued that the application under Order XLVII, Rule 1 of The Code of Civil Procedure, 1908 was without any merits, which was also legally not maintainable.
4. Copies of interim order sheet made part of record suggests that suit for recovery of Rs,6,50,000/- along with costs was instituted by respondent against the petitioner on the basis of demand of promissory note and receipt dated 7-1-2002. On 12-7-2002, the suit was entrusted to a learned Additional District Judge, Jhang which was put up before said Court on 13-7-2002 whereby while issuing notice to the present petitioner, direction was issued to the respondent to deposit court-fee uptill 29-7-2002, on which date challan form showing the deposit of amount (no detail of amount mentioned) to *chase stamp paper was placed on record and lis was adjourned for submission of reply to the application for leave to appear and defend the suit. Even after acceptance of the application for leave to appear and defend the suit, submission of written statement by petitioner after availing opportunities, casting issues and fixing the lis for evidence of present respondent, the respondent remained in slumber to make up the deficiency of court-fee and keeping in view this fact, application under Order VII, Rule 11 of The Code of Civil Procedure, 1908 was made on 3-2-2003 for rejection of plaint which was adjourned for 7-3-2003 for submission of reply as well as evidence of respondent with the direction to the respondent to make up deficiency of court-fee uptill next date of hearing. Strangely enough said order was not complied with and again premium was given by the trial Court to the respondent directing him to deposit the court-fee uptill 31-3-2003 when the order was acted upon.
5. With this background, application for rejection of plaint was dismissed as infructuous.
6. Following are the points which are required to be settled by this Court while deciding the revision petition.
' First, what is the effect of non-mentioning of exact court-fee by the trial Court while issuing direction to the respondent to deposit court-fee uptill 29-7-2002?
' Second, whether the respondent absolved his duty by depositing amount to purchase the court- fee witnessed by challan form, copy of which was placed on record by him on 29-7-2002?
' Third, what is effect of inordinate delay to make up deficiency of court-fee particularly when an application for rejection of plaint was made on 3-2-2003?
' Forth, whether trial Court was competent to again grant premium to the respondent by issuing direction to deposit court-fee to the tune of Rs,15000/- uptill 7-3-2003.
' Fifth, effect of non-compliance of the said order on 7-3-2003 but again granting opportunity to the respondent to make up deficiency of court-fee till 31-3-2003, when the order was complied with.
7. There is little cavil with the well-expounded proposition of law that in order to attract provisions of Order VII, Rule 11 of The Code of Civil Procedure, 1908 due to failure of the plaintiff to make good deficiency of court-fee, there must be determination of court-fee and then the provision of time for making up deficiency. Perusal of order dated 13-7-2002 suggests that though direction was issued to the respondent for deposit of court-fee but admittedly the amount was not determined. In the ordinary course, said order would not entail the penal consequences mentioned in Order VII, Rule 11 of The Code of Civil Procedure, 1908 but in my opinion the case in hand is on distinguishable footing keeping in view the specific amount of suit claimed by the plaintiff The position would have been different if the amount of court-fee was not clear and the present respondent being plaintiff was required to get mandate of trial Court to know the exact amount of the court-fee to be affixed by him on the plaint.
8. Perusal of contents of para 7 of original plaint suggests that respondent was conscious of the valuation of the suit for the purposes of court-fee and jurisdiction which is reproduced for ready reference.--- Para 7. "That special a summons as provided for the purpose of court-fee and jurisdiction at Rs,6,50,000/- as court-fee in the sum of Rs,6,50,000/- will be paid according to law."
' In view of the matter, there can be no two opinions that the respondent being plaintiff was well aware and conscious of amount of court-fee to be paid by him in the suit.
9. Almost similar proposition was moot point before the honourable Supreme Court in "ASSISTANT COMMISSIONER AND LAND ACQUISITION COLLECTOR, BADIN v. Haji ABDUL SHAKOOR and others" (1997 SCM R 919), in which it was held at page 924 as follow:--- "In the present case, the petitioner had filed first appeal against a money decree. There does not exist any doubt as to the question of payment of court-fee, as it is to be paid ad valorem on the decretal amount. But the petitioner, in spite of the above clear legal position, opted to file the appeal with Rs,10 court-fee. Even after the objection was raised by respondents Nos.1 and 2, the petitioner in the above-quoted para. 7 of the rejoinder, took the plea that no court-fee was payable though after the expiry of more than one month, he paid the deficit court-fee as a measure of abundant caution. In our view, the learned Judge in chamber was justified in concluding that the petitioner was negligent and his conduct was contumacious and there existed no reason to show any indulgence to him to extend the time. We do not find any infirmity in the impugned judgment.
Leave is, accordingly, refused."
10. In view of the above state of facts and law, it cannot be validly pleaded at the instance of respondent that provisions of Order VII, Rule 11 of The Code of Civil Procedure, 1908 was not attracted to the facts of the case due to non-determination of exact amount of court-fee.
11. It is not disputed that the respondent was required to pay court-fee uptill 29-7-2002 who placed on record photocopy of challan form showing the deposit of amount to purchase court-fee. The amount which was deposited by the respondent does not find mentioned in said order. Similarly, the petitioner did not place on record the copy of challan form though should have been made part of revision petition. However, the petitioner placed on record credit certificate issued by Assistant Treasury Officer, District Mang, according to which respondent deposited Rs,5000/- in order to purchase the court-fee on 26-7-2002 though was liable to pay court-fee to the tune of Rs,15,000/- who was well conscious of the amount of court-fee to be affixed as discussed earlier.
12. It is the case of petitioner that fraud was committed by respondent suggesting that he deposited the amount of Rs,15000/- in treasury for purchase of stamp paper which was questioned at the instance of adversary but even ignoring this fact, I would like to advert the written reply of the application submitted by respondent for rejection of plaint whereby he in para 6 of the reply submitted that on 26-7-2002 he deposited Rs,5000/- in treasury as he was unable to arrange total amount. In view of the matter, placing on record photo copy of challan form on 29-7-2002 and deposit of amount to the tune of Rs,5,000/- instead of Rs,15,000/- would not be sufficient to suggest that present respondent liquidated his liability in compliance of order dated 13-7-2002. He can be excused to the extent of payment of court-fee to the tune of Rs,5000/- but still there was a deficiency of court-fee to the tune of Rs,10,000/- which was not accounted for and it was just submitted that he could not arrange the remaining amount.
13. The respondent remained in slumber on different dates of hearing when on 3-2-2003 application was made by the petitioner for rejection of plaint on which date again direction was issued to respondent to deposit court-fee uptill 7-3-2003 but again order was not complied with which, however, was acted upon on 31-3-2003 in compliance of the second direction issued on 7- 3-2003. In view of the matter, there can be no two opinions that the deposit of Rs,5000/- in treasury by itself would not absolve the respondent to face the consequences of non-payment of court-fee to the tune of Rs,15,000/-.
14. Next question for consideration is whether the learned trial Court was justified in showing indulgence in favour of present respondent despite availing successive dates of hearing for seven months when again twice direction was issued and again he took almost two months to pay the court-fee. Question of payment of court-fee, extension of time with reference- to enabling provisions under section 148 read with section 149 of The Code of Civil Procedure, 1908 was examined by the honourable Supreme Court in Mst. WALAYAT KHATUN v. KHALIL KHAN AND ANOTHER"
(PLD 1979 SC 821), in which while dealing with the moot point categories of suit were made in order to allow the time for making deficiency of court-fee. Dilating upon moot point, the honourable Supreme Court held at pages 825 and 826 as "The next point to be seen is whether in all cases a Court is first bound to grant time to a plaintiff to make up the deficiency in the court-fee under Order VII, Rule 11(c), C.P.C., before proceeding to take any further action on an insufficiently stamped plaint. My answer is in the negative. And for this purpose I will divide suits or plaints into two categories. One category is where the plaint is filed well in time, and there is still some period of limitation left in favour of the plaintiff. In such a suit the Court is obliged and bound to grant time under Order VII, Rule 11(c), C.P.C. And the time granted itself should also be within the meaning period of limitation. This is a stage when the matter is solely between a subject and the State. However, if despite grant of such an opportunity the needful is not done the Court shall reject the plaint. The second category is that where on the date of grant of time suit has already become time barred, or where though the time was granted on a date when suit was within limitation but it was granted or extended up to a date by which the suit will become time-barred. However the matter is not confined solely between a subject and the State because in such a situation a third person namely defendant has also in the meantime due to running out of the period of limitation in his favour acquired a vested right. These cases are distinguishable from the first category and are a class by themselves. These are to be regulated by sections 148 and 149 of the C.P.C. Which as is obvious authorise the Court to destroy the defence of limitation which may have become available to a defendant in the meantime."
15. Again same question was dealt with by the honourable Supreme Court in "ALLAH YAR v.
MUHAMMAD RIAZ AND OTHERS" (PLD 1981 SC 489) and it was held that time for making deficiency of court-fee can indeed be extended by trial Court as well as appellate Court but discretion in such regard, has to be exercised carefully and order sh'ould neither be unduly harsh on plaintiff by giving him opportunity to make up deficiency nor harsh on defendant by easily taking away valuable right of limitation.
16. Again matter was examined by the apex Court in "SIDDIQUE KHAN AND 2 OTHERS v. ABDUL SHAKUR KHAN AND ANOTEHR" (PLD 1984 SC 289) and it was held that The Court Fees Act (VII of 1870) like other fiscal statute is to be construed strictly and in favour of object. Further held that object of Act is to secure revenue for benefit of State and not to arm litigant with weapon of technicality to harass his opponent. Examining the point of exercise of discretion, it was held that if the plaintiff is guilty; of contumacious and commits positive act of mala fide, the plaintiff would be held disentitled to get discretion under section 148 read with section 149 of The Code of Civil Procedure, 1908.
17. The expression "contumacious" and "mala fide" were dealt with by the apex Supreme Court in the same Report at pages 320 and 321 as follow:--- "Contumacy in the context is used in the general dictionary sense and not as a word of art. It means contempt of lawful authority, obstinacy, or stubbornness. 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 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. Rashida Ahmad (1) 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 (2) 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 case and the situation vis-a-vis the personal' motive 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 lis is involved and the act of bad faith is regarding revenue of the State, then it will not ordinarily reflect on the(sic) between the parties directly. For example in case of public revenue some bad faith, will be projected in an attempt to save money (simipliciter but "positive" mala 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."
18. The expression "contumacy" has been defined in Black's Law Dictionary, Eighth Edition as follow:- -- "contumacy (kon-t[yi]uu-me-see),n. Contempt of Court; the refusal of a person to follow a Court's order or direction. See CONTEMPT [Cases; Contempt 1-26. C.J.S. Contempt $$ 2-3, 37]--- contumacious, adj."
' The expression mala fide which is equal to bad faith was defined in the same dictionary as follow:- -- "mala fides (mal-e-fi-deez), n. See BAD FAITH."
' In view of the matter, there can be no two opinions that if the person wilfully violates and makes non-compliance of the order of lawful authority then it would be construed contumacious act.
19. Keeping in view the yardstick, I will examine respective contentions of the parties. As referred earlier, respondent was directed to pay the court-fee uptill 29-7-2002 but the same order was not complied with. Deposit of Rs,5,000/- through challan form on 26-7-2002 as is evident from credit certificate issued by Assistant Treasury Officer and frank admission on the part of respondent in para (6) of written reply to the application admitting deposit of Rs,5,000/- only, though was required to pay court-fee to the tune of Rs,15,000/- being well conscious and cognizant of the amount of court-fee and then not disclosing the true facts to the Court at the time of placing on record copy of challan form on 29-7-2009, and then not making any attempt to deposit the remaining amount in the treasury for purchase of stamp paper, showing inaction to comply with the original order dated 13-7-2002 despite expiry of time uptill 3-2-2003, again showing indifferent attitude to pay court-fee in terms of order dated 3rd of February, 2003 uptill 31st of March, 2003 while getting two adjournments clearly demonstrates wilful noncompliance of the original order as well order dated 3rd of February, 2003 which conduct was "contumacious" and result of malice-in- fact, disentitling him to get any indulgence from the trial. Court.
20. Learned counsel for respondent contended that the order was complied with on 31-3-2003 and as such the application was rightly dismissed by learned trial Court being infructuous. The respondent again took a period of two months to make up deficiency of court-fee after submission of application for rejection of plaint on 3-2-2003 and as such the argument canvassed would be of little help to the present respondent. In view of the matter, payment of court-fee on 31-3-2003 was not sufficient to grant premium to the respondent in view of ratio expounded in 'ASSISTANT COMMISSIONER AND LAND ACQUISITION COLLECTOR, BADIN v. Haji ABDUL SHAKOOR and others" (1997 SCM R 919).
21. Jurisdiction under section 115 of The Code of Civil Procedure, 1908 is meant to correct errors made by subordinate Courts and the orders made in their discretion are not subject to revisional jurisdiction but if the discretion exercised is fanciful or arbitrary, then the order of the subordinate Court would be subject to the revisional jurisdiction of this Court. Reliance is placed upon "Malik KHUDA BAKHSH AND ANOTHER v. Syed HAMID ALI SHAH" (1981 SCM R 196).
22. Deposit of Rs,5,000/- in treasury instead of Rs,15,000/- and that too without any justified reasons was not sufficient to show indulgence in favour of respondent.
23. Viewed from whichever angle this Court is of the considered view that the conduct of the respondent was nothing but contumacious and was based on malice-in-fact and as such learned trial Court was not justified granting premium to the respondent and that, too successively and as such the order regarding dismissal of application for rejection of the plaint and dismissal of the application under Order XLVII, Rule 1 of The Code of Civil Procedure, 1908 suffers from jurisdictional defect. While setting aside both the orders and while accepting the revision petition, the application for rejection of plaint under Order VII, Rule 11 read with section 151 of The Code of Civil Procedure, 1908 stands accepted and the plaint in the suit for recovery titled "SAQIB MUNIR v.
MUBARAK ALI" is hereby rejected.
24. Costs shall follow the event.