This judgment will dispose of R. S. A. 265/73 and C. R. 350/77 since a common question of law is involved in both the cases. Both the proceedings arise out of two pre-emption suits and the common feature of these cases is that both the suits were filed on the last day of limitation. They were instituted without payment of proper court-fee with a note added to the plaint that the deficiency would be made up later. The question, therefore, would be whether these are cases where on account of contumacy or positive mala fides or reasons of similar kind the suits were undervalued and were filed with deficient stamps so as to make the plaintiffs ineligible to the benefit of exercise of discretion in their favour under section 149 of the Code of Civil Procedure.
2. The facts giving rise to the regular second appeal are that the property in dispute was sold by a registered sale deed dated 5-3-1968. The plaintiff filed the suit for pre-emption on 5-3-1969 which was the last day of limitation. He tentatively valued the suit at fifteen times the mesne profits of the land for the preceding year and the amount of Rs. 5 was arbitrarily fixed without having recourse to the necessary revenue record or the Fard of the Patwari. On 29-4-1969 the plaintiff submitted an application alongwith deficient court-fee that the court-fee should have been worked out at ten times of the land revenue payable which amounted to Rs: 41, per year and ten times of which amounted to Rs. 410. No explanation was given why the plaintiff did -not find out the actual criterion on which the value for the purpose of court-fee had to be worked out. An objection was taken that the suit was barred by limitation. The trial Court found this issue against the defendants but the learned Additional District Judge in appeal came to a different conlusion and held that there being no explanation for the mistake committed by the plaintiff-appellant his suit was barred by limitation. Accordingly, he allowed the appeal and dismissed the suit.
3. In the revisional case the sale deed was executed on 11-7-1975 for an amount of Rs. 1,40,000. The land in dispute measures 113 kanals 4 marlas and is situated in Chak No. 157/G. B. Tehsil Toba Tek Singh. The suit for pre-emption was filed on 12-7-1976 which was the last day of the limitation, on a court-fee of Rs. 10, only. The learned trial Court directed the plaintiff to deposit zar-i patrjam and also to make up the deficiency by 21-9-1976. This was done and a deficiency of Rs. 5,475, in the court-fee was made up. The defendants applied for rejection of the plaint on the ground that the suit was barred by limitation but that application was dismissed on 17-1-1977 on the ground that the plaintiffs had paid the court-fee in accordance with the direction of the Court. This order has been challenged by the revision petition.
4. In both the cases the learned counsel for the defendants placed reliance upon certain observations made in the case of Mst. Walayat Khatun v. Khalil Khan and another PLD1979SC821 ,while the arguments of the learned counsel for the plaintiffs were based upon the provisions of Order VII, rule 11 read with section 149, C. P. C. And certain authorities of the High Court and the Supreme Court. It was argued that the observations relied upon by the learned counsel for the defendants are not the observations of the Court but were simply an opinion of one Judge which was not necessary for the decision of the appeal in the Supreme Court.
5. The facts 'in the Supreme Court case were that the plaint had been filed in Court deliberately with an inadequate court-fee of Rs.
2. On 10-2-1976 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 11 of Order VII, of the Code of C. P. The plaintiff failed to comply with the orders within time nor any reason for the delay was advanced. The learned trial Court rejected the plaint under Order VII, rule 11, C. P. C. And that order was maintained by the lower appellate Court in the first appeal, by the High Court in the second appeal as well as by the Supreme Court. The judgment was written by Muhammad Akram, J. Who on the facts stated above found that the trial Court had exercised the jurisdiction on sound grounds. Karam Elahi Chauhan, J. Agreed with this. However, in view of the important point involved in ;the case he added some further reasons. After taking note of section 28. Of the Court Fees Act, the provisions of section 3 of the. Limitation Act and section 149, of the Code of Civil Procedure, his Lordship was of the view: "If the position is, therefore, examined from that 'point of view, it becomes manifest that whereas the provisions of law earlier mentioned on the one hand help suitors, on the other hand their indiscriminate and reckless exercise may destroy the plea of limitation available to a defendant.
The Court has, therefore, to strike a balance between these two, and whereas at one place it should not be harsh on the plaintiffs, equally and at the same time it should not be harsh on defendants to easily take away a 'valuable defence of limitation' from them. The Court must, therefore, in all cases apply its indepen--dent mind carefully and attend to their detailed facts and circumstances judicially and fairly. If in a case the plaintiff has been thoroughly negligent, contumacious and careless of his duty in affixing a proper court-fee he would not be entitled to any indulgence for grant of time, which has the effect of causing prejudice to a defendant or to his rights and title to a property which may have become perfect by expiry of the relevant period of limitation in the meantime. Examples of negligence, carelessness, want of bona fides etc. May vary from case to case and no hard and fast rule in this respect can be laid down. However, just to give a few examples which are merely illustrative and not exhaustive; where for instance, a plaintiff deliberately describes the suit land as agricultural land assessed to land revenue and stamps it accordingly, in spite of the fact that theland to his knowledge is urban agricultural land or urban immovable property situated within the municipal limits subject to property tax under the West Pakistan Urban Immovable Property Tax Act (V of 1958) and exempt from land revenue under section 56(1)(c) of the West Pakistan Land Revenue Act (XVII of 1967), then it will not be a case warranting grant of time so as to destroy the defence of limitation which in the meantime may have accrued to the defendants and nor will it be a case of mistake or inadvertence within the meanings of section 28 of the Court Fees Act. Similarly where a plaintiff puts ridiculously low court- fee, or where the plaint appears to have been filed nor for any bona fide object of its serious pursuit but to tense or harass another or others concerned, then a Court will not be justified to allow time for validating such a plaint and destroy the plea of limitation which may have been perfected in favour of a defendant in the meantime sheerly due to no seriousness of the plaintiff or causes of similar nature. A plaintiff who is guilty of contumacy, positive mala fide, or lack of bona fides will not be entitled for any indulgence. In this respect similarly poverty or ignorance will also be no excuse."
His Lordship also considered the question of applicability of Order VII, rule 11 and was of the opinion that the Court is obliged to grant time under the provisions of clause (c) of rule 11 of Order VII, when the period of limitation has not already expired and the time granted in such a case itself should be within the period of limitation. In the case where the suit is barred by limitation on the date of grant of time or on the date which is coterminous with the date of extension granted under Order VII, rule 11, the matter shall be regulated by sections 148 and 149 of the C. P. C. And in such category of cases the Court is not bound or obliged to grant time nor it could be granted just in routine or mechanically but by keeping in view the considera--tions above-mentioned.
6. There has been a diversity of opinion on the point whether the Court is bound to grant time for making up the deficiency in court-fee under rule 11(c) of Order VII. In Jiwan Das v.'Khushali Ram (AIR 1971 Lah. 377), a Division Bench of the Lahore High Court held that rule 11 of Order VII, made it incumbent upon the Court to grant time for axing the proper court-fee and the Courthas no discretion in the matter. It was further observed the section 149, C. P. C. Containing a general provision relating to all documents cannot control the rule laid down in rule 11 of Order VII, which deals - specifically with plaints. Similar view was taken by the Madras High Court in Basavayya v: Venkatapayya (AIR 1926 Mad. 676), Subramania lyer v. Rama lyer (AIR 1927 Mad. 1002), by the Calcutta High Court in Radha Kanta Saha v. Debendra Narayan Saha (AIR 1922 Cal. 506), and by the Patna High Court in Ram Sahay Ram Pande v. Lakshmi Narain Singh (AIR 1917 Pat. 26) and Deonath Sahai v. Radha Nath Prasad (AIR 1922 Pat. 56). This view is also supported by Janda Khan -v-Bahadur A.I (3 P R 1893) and Hari Ram v. Akbar Hussain (1 L R 29 Alt. 749).
7. A Division Bench of the Lahore High Court held a different opinion in Jagat Ram v. Misar Kharaiti Ram and another, that it, is not incumbent upon the Court of justice to allow the plaintiff an opportunity to make good the deficiency under Order VII, rule 11. This rule is not an enabling provision and has nothing to do with the power of the Court to have the deficiency made up. On the other hand it is a disabling provision enjoining the Court to reject a plaint if deficiency is not made good as ordered by the Court. It was further held that in this connection question of any bona fide or mala fide was also not material. The Division Bench referred the matter for resolving the inconsistency between the earlier view and this view on the interpretation of Order V1I, rule 11, to a larger Bench. A Full Bench of the Lahore High Court in AIR 1938 Lab. 361 was of the view that it was unnecessary to consider the question whether the Court was bound to give an opportunity to the person presenting the document to make up the court-fee under the provisions of Order VII, rule 11, C. P. C. Because on the facts the discretion conferred on the Court by section 149, C. P. C. Should have been exercised in favour of the plaintiff. The scope of exercise of the discretion was laid down in the following manner: " . . . . It seems to me that the discretion conferred on the Court by section 149, C. P. C. Is normally expected to be exercised in favour of the litigant except in cases of contumacy or positive mala fides or reasons of a similar kind. The question of bona fides in this connec--petition should be construed in the sense that the word is used in the Limitation Act. A thing should be presumed to be done bona fide, if it is done honestly whether it is done negligently or not for the purpose of judging whether the discretion under section 149, should or should not be exercised in favour of the litigant."
8. The question whether the Court is bound to grant time under Order VII, rule 11(c) was considered by another Division Bench of the Lahore High Court in Sardar Balwant Singh v. Sardar Jagjit Singh and another (A,I R 1947 Lab. 210), although the point in that ' case was whether Order VII, rule 11 applied only to plaints or also to appeals and this question was resolved by a unanimous verdict that the said rule was not applicable to appeals. However, Abdul Rashid, Actg. C. J. Agreed with the view of the referring Bench in Jagat Ram v. Misar Kharaili Ram and another (AIR 1938 Lab. 361), while Khosla, J. Was of a different view and agreed with the view taken by the Lahore High Court in the case of Jiwan Das v. Khushalf Ram (A I- R 1917 Lab. 377 .) and the view adopted by the Chief Court of Punjab in Janda Khan v. Bahadur A.I..
9. Saeed Ahmad v. Karam Singh (PLD 1949 Lab. 380) is another case in. Which the default in the payment of court-fee was regarded as contumacious. The matter was decided by the Division Bench of the Lahore High Court consisting of Sir Abdul Rashid, C. J. And. Cornelius, J. On the basis of section 149, C. P. C. Without referring to the provisions of Order VII, rule 11, C. P. C.
10. The next case which requires detailed treatment is Sultan Muhammad v. Muhammad Yusuf (PLD 1959 Posh. 120). A similar question was raised in that case whether keeping in view the provisions of Order; VII, rule 11, C. P. C. And sec--petition 149, the date of institution of a suit should be reckoned from the date of presentation of the plaint and not from that on which the requisite court-fee is subsequently put in. The Division Bench formulated the question whether in cases which are not covered by section 28 of the Court Fees ,Act or section :149 of the C. P. C. But are governed by section 10 of the Court Fees Act and Order .VII, rule 11 of the C. P. C. The time mentioned in the Limitation Act for the institution of a suit is automatically enlarged or not. Saeed Ahmad and others v. Karam Singh and others was not followed since in that case only section 149 of the C. P. C. Was considered while rule 11 of Order VII, was not taken into account. The opinion of the referring Bench in Jagat Ram v. Misar Kharaiti Ram and another was also disregarded the firstly for the reason that the Full Bench did not enter into the question at all and secondly that there was otherwise almost a unanimity of view on the interpretation of Order VII, rule I1 that it was made it incumbent upon the Court to grant time to the plaintiff to make up the deficiency in the court-fee and the plaint could only be rejected if the court-fee was not paid within the time so allowed.
11. Before proceeding further I may also refer to Maulvl Ahmad Yar v. Mst. Hajran (PLD1966BJ1 ), in which without entering into the controversy about the scope of Order VII, rule 11 the matter was decided like the case Saeed Ahmad v. Karam Singh whether the discretion should have been exercised at all in favour of the plaintiff. It was held that the discretion exercised in favour of the plaintiff in that case did not conform to the judicial standard laid down for the exercise of the discretion in such matters.
12. Reference may now be made to two cases of the Supreme Court of Pakistan, Muhammad Nawaz Khan v. Makhdoom Syed Ghulam Mujtaba (PLD1970SC37) and Shah Nawaz and 6 others v.
Muhammad Yousaf etc. (1972 SCMR 179). In the first case it was contended that only those fall under clause (c), rule 11 of Order VII, C. P. C. In which the relief claimed is correctly valued in the first instance. If the relief claimed is under-valued the written on insufficiently stamped papers then neither clause (a) nor clause (b) of rule II would be attracted and the case would fall within the ambit of section 149, C. P. C. Under which the Court has discretion to refuse an opportunity to supply requisite stamp papers.
13. Their Lordships did not accept this interpretation and relied for the contrary view upon Jagat Ram v. Misar Kharaid Ram and another "and a number of other judgments delivered by various High Courts in the sub--continent including a judgment of the Peshawar Bench of the High Court of West Pakistan". The judgment of the Peshawar Bench appears to be the same as discussed above Sultan Muhammad v. Muhammad Yusuf and others. Similarly the other judgments delivered by various High Courts in the sub--continent appear to be the judgments in which it was held that Order VII, rule 11, C. P. C. Bound the Court to grant time.
14. Their Lordships resolved the anomaly arising by the provisions of Order VII, rule 11 which as stated above makes it incumbent upon the Court to grant time for correction of the valuation and making up the deficiency in the court-fee and section 149 which vests the Court with discretion to extend time for deposit of proper court-fee by holding that the provisions of Order VII, rule 11 and section 149 are, therefore, to be read together. Paragraph by which this anomaly was resolved requires to be reproduced and is as follows :- "Apart from these weighty judgments, it would indeed, be anomalous if limitation is not saved in cases in which 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 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."
15. From the manner their Lordships have cited the Peshawar case and the Full Bench case of the Lahore High Court with approval, it appears that in the opinion of their Lordships except in a case of contumacy or positive mala fide the Courts are bound to grant time for making up of the deficiency whether such deficiency is made good within the period of limitation as fixed by law or after the expiry of the same and by virtue of section 149, the court-fee, even if it is paid, after expiry of the period of limitation, it shall be deemed to have been paid on the date of the institution of the suit.
16. That this is so will be clear from the other case of Shah Nawaz and6 others v. Muhammad Yousaf, etc. In which their Lordships referred to the Full Bench case as well as to the earlier case of Muhammad Nawaz Khan v. Makhdoom Syed Ghulam Mujtaba Shah. Their Lordships concluded :-- "It is thus evident that unless the plaintiff is guilty of contumacy or positive mala fides in putting in deficient court-fees along with his plaint, the Court could in its discretion allow time to the plaintiff to put in the deficient court-fee. 1n the facts and circumstances of the case it could not be said that the plaintiffs had been plainly very negligent, and had moreover, completely failed to provide any excuse for their default. They have offered to pay the deficient court-fee and the Civil Judge has permitted them to do so.
Furthermore, under Order VII, rule 11 of the Code of Civil Procedure the plaint can only be rejected in a case where the relief claimed i: undervalued 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."
17. The specific reference to Order VII, rule 11 makes it clear that their Lordships agreed with the view that time should be granted under' Order VII, rule 11 except in a case of contumacy or positive mala fides or negligence of a greater degree and the discretion under section 149 should be exercised in favour of the litigant. It may be recalled that the Full Bench of the Lahore High Court in Jagat Ram's case had held that negligence -as such did not make an act mala fide as defined under the General Clauses Act. But the Supreme Court by observing in the above case that in the circumstances of that case the plaintiff could not be said to have been `plainly very negligent' held negligence to be of two degrees, i.e. Simple negligence and negligence of a greater degree. The negligence of a greater degree was thus assumed to turn an act into that of positive mala fides. In view of this mere negligence would not be sufficient to doubt the `bona fides of a litigant unless it is also proved that his conduct was dishonest or was `plainly very negligent'.
18. The word `contumacy' has been explained in Karim Bakhsh v. Qaddr Bakhsh PLD 1954 Lah. 228 that contumacy involves obstinate resistance to authority of the Court. Its plain dictionary meanings also are `insubordination or disobedience' specially to order of Court. The question of contumacy cannot, therefore, arise where deficiently stamped plaint is filed. This charge can be brought home to the plaintiff in case of disobedience of orders of Court which no doubt can be made only after entertainment of the plaint. Such were cases reported as Saeed Ahmad v. Karam Singh and Maulvi Ahmad Yar v. Mst. Hajran. Thus in cases where the Court has to make up its mind at the initial stage whether the plaintiff should be given time to deposit court-fee it has to determine only the question of mala fides which includes dishonesty as well as negligence of a greater degree.
19. The observations, referred to above from the judgment of Karam Elahee ' Chauhan, J. In Mst.
Walayat Khatun v. Khalil Khan and another should, therefore, be interpreted in the same light. His Lordship did. Not lay down a different proposition but in an illustrative manner analysed the different propositions of the law exhaustively with his usual erudition.
20. The provisions of Order VII, rule 11 (c) and section 149 have to be read and applied together in a matter where the deficiency in court-fee is to be made good after the expiry of the period of limitation. Where there is still limitation the Court must grant time so far as possible to enable the plaintiff to pay up the deficiency within the period of limitation. Where the suit is already barred by time or is likely to become barred by time on the date by which he is directed to make the deposit of deficient court fee, the limitation can be saved by exercising the discretion under section 149, C.
P. C. Though sub-rule (c) of rule 11 of Order VII provides for grant of time to the plaintiff to make up the deficiency irrespective of consideration Whether the suit is or would be barred by time or not, it is only by resort to section 149, C. P. C. That the payment of court-fee after the period of limitation can be treated to be payment on the date of filing of the plaint.
21. But the discretion under section 149 is not exercisable in case of contumacy, positive mala fides, negligence of a higher degree and such like cases. 1t would follow that extension of time under Order VII, rule 11(c) would be a futile exercise of jurisdiction in such cases though that sub-rule makes it incumbent upon the Judge to. Extend tune. How then to reconcile' these two provisions in cases of contumacy or mala fides.
22. Reconciliation can be brought about only in the manner as suggested by K. E. Chauhan, J. In the above case that before exercise of discretion under section 149 or grant of time under Order VII, rule 11 the Court should first find out whether the conduct of the plaintiff in. Making the default in payment of the court-fee within time was at all contumacious or actuated by positive mala fide.
Once it is found that it is not so the Court is bound to exercise its discretion under section 149 in favour of the plaintiff and to grant him time under the provisions of rule 11(c) of Order VII to make good the deficiency in the court-fee irrespective of the fact whether time is granted after the expiry of the period of limitation or period of limitation was likely to expire during the time granted by the Court.
23. The examples as given in the case of Mst. Walayat Khatun v. Khalil Khan of cases of want of bona fide are neither exhaustive nor are they meant to have been laid down for being followed literally. These examples will apply to cases where the plaintiff's conduct is contumacious or of positive mala fides. It is for this reason that his Lordship in the first instance has stated that "where for instance, a plaintiff deliberately describes the suit land as agricultural assessed to land revenue and stamps it accordingly in spite of the fact that the land to his knowledge is urban agricultural land or urban immovable property. . " It is quite possible that while the plaintiff may use an incorrect criterion for evaluating his suit for purposes of jurisdiction and court fee, he may still be acting honestly. The principle laid down by his Lordship will not apply to such a case. It will no doubt apply to a case whereas his Lordship stated a plaintiff deliberately and with full knowledge describes the suit land as agricultural land although it is urban immovable property.
24. In the second example also emphasis has been laid on contumacy or positive mala fides or lack of bona fides in so far as the plaint putting ridiculously low court-fee appears to have been filed not for any bona fide . Object of its serious pursuit but to tease or harass another or others concerned. No doubt the inference of lack of bona fide should be gathered where the value placed on the suit is extremely arbitrary or ridiculously low.
25. I have dealt with the history of interpretation of Order VII, rule 11 and section 149 so that the Courts may not misapprehend the observations in this recent case. In every case the Court has to presume bona fide unless the contrary is proved in which case it would not be necessary for the Court acting under Order VII, rule 11, C. P. C. To grant time to a litigant to correctly stamp the plaint on a date on which the suit would be barred by limitation. No doubt this rule despite mala fide and.
Contumacy cannot bee applied to a case where the direction under Order VII, rule 11 for correction of the valuation and for consequential deposit of the deficient court-fee has to be made prior to the expiry of the period of limitation. In that case contumacy or lack of bona fide in my opinion would be absolute irrelevant. It can be relevant only where the suit is barred by limitation and that limitation has to be saved by exercise of discretion under section 149, C. P. C.
26. Applying this principle to the facts of the revisional case it would be seen that though the area of the property as well as its consideration was considerable and the court-fee also amounted to Rs. 5,485, an amount of Rs. 10 only was paid as court-fee. The suit was also filed on the last day of - limitation. The ridiculously low amount of court-fee paid would naturally impinge upon the bona fides of the plaintiff. It is, therefore, a case where the institution of the suit was actuated by mala fide. The learned trial Court has acted illegally and with material irregularity in the exercise of its discretion under section. 149, C. P. C. By directing the plaintiff t make good the deficiency by 21-9- 1976 thus granting him time of two month and 9 days.
27. The revision petition is allowed with costs, the order of the trial Court dated 17-1-1977 is set aside and the plaintiff's suit is dismissed.
28. This principle will also apply to the case of the regular second appeal. The area of property in that case was 115 kanals 2 marlas and it was recorded as chahi nehri in the plaint. Despite this the plaintiff no doubt using a wrong criterion of 15 times of mesne profits, for valuation-of the suit, fixed the mesne profits at a sum of Rs. 5 only for the preceding y which could not have been compatible with the area of the property, nature of the land as well as the consideration of Rs. 25,000 paid for it.
Since the suit was filed on the last day of limitation, this amount was arbitration fixed in order to gain time to make good the deficiency. The amount .Of Rs. 5 as the income of the preceding year is not only arbitrary but also ridiculously low. The object of fixation being to some how or other gain time, it could not be said to be an honest object.
29. I, therefore, agree with the finding of the learned Additional District and dismiss the appeal with costs.