Shahid Waheed, J:- The plaintiff has filed this appeal under section 96 CPC to challenge the order and decree dated 28.10.2014 passed by the learned Civil Judge, Ist Class, Multan, whereby his suit was dismissed under Order XVII Rule 3 CPC; and, the plaint was rejected under Order VII Rule 11 CPC.
2. The plaintiff sued to recover possession of the suit property from the respondent No.1, Mst. Nazran Khatoon (hereinafter called the defendant No.1) through specific performance of agreement to sell dated 10.3.2014. It was maintained in the plaint that the defendant No.1 had agreed to sell the suit property to the plaintiff for a consideration of Rs.7,650,000/-; and, that Rs.650,000/- was paid to the defendant No.1 as earnest money in the presence of witnesses and the remaining amount of Rs.7,000,000/- was agreed to be payable on 5.9.2014. The learned Trial Court after hearing preliminary arguments vide order dated 10.9.2014 directed: (i) to issue summons to the defendant No.1 for 24.9.204; (ii) defendant No.1 to maintain status quo regarding the suit property; (iii) the plaintiff to deposit the remaining consideration amount of Rs. 7,000,000/- till the next date; and (iv) the plaintiff to affix required court-fee. On 24.9.2014 the defendant No.1 through her counsel entered appearance before the learned Trial Court and got recorded her statement to the effect that she had no objection on being decreed the suit subject to payment of remaining consideration amount of Rs. 7,000,000/-. In view of statement made by the defendant No.1, the learned Trial Court vide order dated 24.9.2014 granted last opportunity to the plaintiff to deposit remaining consideration amount of Rs.7,000,000/-; and, to make good the deficiency in the court-fee before the next date of hearing i.e 10.10.2014. The appellant did not comply with the aforesaid order. Again vide order dated 10.10.2014, the learned Trial Court subject to cost of Rs.2000/- granted opportunity to the plaintiff to deposit the remaining sale amount; and, to make good the deficiency in court-fee and case was adjourned to 24.10.2014. On the said date the plaintiff filed an application under Order 1 Rule 10 CPC for impleading Mst. Rabia Bibi, respondent No.2 (hereinafter called defendant No.2) as defendant in the suit. The defendant No.1 on the same date got recorded her statement that she had no objection on the impleadment of respondent No.2 as defendant in the suit. The said application was accordingly allowed and vide order dated 24.10.2014 the plaintiff was directed to file amended plaint; to deposit remaining consideration amount of Rs.7,000,000/-; to make up the deficiency of court-fee; and, to pay the cost of Rs.2000/-. The case was postponed to 27.10.2014.
The plaintiff again defaulted in complying with the order dated 24.10.2014. However, on 27.10.2014 the defendant No.2 also got recorded her statement that she had no objection on decreeing the suit. After recording statement of defendant No.2, the learned Trial Court vide order dated 27.10.2014 reiterated the afore stated directions to the plaintiff and set down the case for hearing on 28.10.2014. The plaintiff remained non-compliant and resultantly the learned Trial Court vide order dated 28.10.2014 dismissed the suit under Order XVII Rule 3 CPC and rejected the plaint under Order VII rule 11 CPC. Hence, this appeal.
3. The appellant's-plaintiff's counsel contends that the learned Trial Court has rejected the plaint under Order VII Rule 11 CPC for deficiency in court-fee; and, dismissed the suit under Order XVII Rule 3 CPC for non filing of amended plaint, non-deposit of balance consideration amount of Rs.7,000,000/-;and, non-payment of cost. He urges that neither the plaint could be rejected nor suit could be dismissed through a composite order; and, that the impugned order shows that the learned Trial Court has acted in the exercise of its jurisdiction illegally or with material irregularity and thus the same is not sustainable in the eye of law. On the other hand, learned counsel for the respondents-defendants has vehemently opposed this appeal and supported the order and decree of the learned Trial Court.
4. In this case the plaint of the suit for possession of the suit property through specific performance of agreement to sell dated 10.3.2014 was written upon paper insufficiently stamped. This defect was noticed by the learned Trial Court in its first order dated 10.9.2014 and, therefore, the plaintiff was required to supply the requisite stamp paper. Simultaneously, through the said order the plaintiff was also directed to deposit the remaining consideration amount of Rs.7,000,000/-. Question arises as to whether the learned Trial Court without getting the requisite stamp-paper of court-fee could order the plaintiff to deposit the above said amount. Answer to this question is in the negative.
Section 6 of the Court Fee Act, 1870 provides that no document of any of the kinds specified as chargeable in the First or Second Schedule to this Act shall be filed, exhibited or recorded in any Court of Justice, or shall be received or furnished by any public officer, unless in respect of such document the prescribed court-fee has been paid. The provisions of section 28 of the Act ibid are to the effect that no document which ought to bear a stamp under the Court Fees Act shall be of any validity, unless and until it is properly stamped. The cumulative effect of the aforesaid provisions of the Court Fees Act is that a plaint or any other document without proper court-fee stamp is not of any validity unless and until it is properly stamped. Thus, it is the duty of the Court, in a case where plaint is written upon paper insufficiently stamped, first, to determine the exact amount of court-fee payable on lis; secondly, to afford the plaintiff opportunity to make good its deficiency; and, thirdly, to take further steps in the suit after getting the requisite stamp paper of court-fee. In the present case the steps were not taken as per above stated procedure and, therefore, the learned counsel for the plaintiff is right in his saying that the learned Trial Court while passing the impugned order and decree did not exercise the jurisdiction vested in it legally.
5. The other moot point in this case is as to whether in the given facts and circumstances of the case the plaint could be rejected under Order VII Rule 11 CPC. It is settled principle of law that in order to entail rejection of plaint under the said rule two conditions must be satisfied: firstly, the court should have positively and specifically determined the amount of deficit court-fee which the plaintiff was required to pay on the plaint; and, secondly, a reasonable time must be allowed to the plaintiff to make up deficiency in the amount of court-fee. [See Mst. Parveen v Mst. Jamsheda Begum and another (PLD 1983 SC 227), Siddique Khan and 2 others v Abdul Shakur Khan and another (PLD 1984 SC 289, Sardar Ahmad Yar Jang v Sardar Noor Ahmad Khan (PLD 1994 SC 688), Zulfiqar Ali and others v Mst. Sajida Begum (1995 SCM R 911) and Faiz Ahmad v Ghulam Ali (2000 AC 739)]. In the instant case the learned Trial Court without determining the amount of deficit court- fee vide orders dated 10.9.2014, 24.9.2014, 10.10.2014 and 24.10.2014 directed the plaintiff to make good the deficiency in the court-fee. The said orders, being silent about the amount of court-fee which the plaintiff was required to pay on the plaint, as per above stated principle of law, were not valid. However, the learned Trial Court realized this omission and vide order dated 27.10.014 directed the plaintiff to deposit court-fee of Rs.15,000/- before the next date of hearing i.e 28.10.2014. This order was also not valid as no reasonable time was allowed to the plaintiff to make up deficiency in the amount of court-fee. Thus, in these attending circumstances, the learned Trial Court could not resort to the provisions of Order VII Rule 11 CPC for rejection of plaint.
6. The other fact which prevailed upon the learned Trial Court to dismiss the suit of the plaintiff under Order XVII Rule 3 CPC was the default in respect of payment of remaining consideration amount of Rs.7,000,000/-; and, to file amended plaint. We are afraid the learned Trial Court c ould not invoke the provisions of Order XVII Rule 3 CPC as they apply to a case where time is granted to a party at his instance, to produce evidence, or to cause attendance of witness or to perform any other act necessary to the further progress of the suit and do not apply unless default is committed by such party in doing the act for which time was granted. In the present case the plaintiff was granted time on several occasions to deposit the remaining amount of sale consideration; and, to file amended plaint. However, said time was not granted at his instance but by the learned Trial Court of its own motion, thus, the provisions of Order XVII Rule 3 CPC as per principle laid down in the cases of Enatulla Basunia v Jiban Mohan Roy (1914 ILR 41 Cal 956= 23 IC 769), Jethmal and others v Mst. Sakina (AIR 1961 Raj 59 ), Juggi Lal Kamla Pat v Ram Janki Gupta and another (AIR 1962 All 407) and Maulvi Abdul Aziz Khan v Mst. Shah Begum and 2 others (PLD 1971 S.C 434) were not attracted to the facts of the present case. In view of above, order passed by the learned Trial Court under Order XVII Rule 3 CPC is not valid.
7. In the sequel we accept this appeal; set aside the order and decree dated 28.10.2014 passed by the learned Trial Court; and, remit the case to the learned Trial Court for adjudication afresh in accordance with law. The acceptance of this appeal is subject to the condition that the appellant shall supply the stamp paper of court-fee of Rs.15000/- to the learned Trial Court within a period of 20 days from today. There will, however, be no order as to costs. The parties are directed to appear before the learned Civil Judge Ist Class, Multan, on 24.2.2014.