Briefly stated the facts are that two suits were filed, one by Khuda Bakhsh etc. And the other by Tufail Muhammad and others to pre-empt the sale dated 7-5-1974 of the land measuring 398 kanals 2 marlas, situated in village Mahmood Kot, Tehsil Shorkot, District Jhang. Khuda Bakhsh aria others filed their suit on 7-5-1975 by affixing initially court-fee of Rs. 382.50 and in para No. 7 of the plaint it was mentioned that the deficiency in the court-fee, if any, shall be made good after preparation of "Naqsba Dal". Tufail Muhammad and others filed suit on 6-5-1:975 affixing initially court-fee of Rs. 394 asserting in para No. 7 of the plaint that deficiency in the court- fee shall be made up after preparation of "Naqsha Dal". On institution of the suits the office reported on 7-5-1975 that "the court-fee paid prima facie appears to be correct. Since statement of net profits has not been filed, court-fee payable and the deficiency, if any, cannot be assessed".
On this report, the Senior Civil Judge, directed issuance of summons to the defendants for 20-6- 1975 in one suit and for 27-6-1975 in the other suit. The direction for making up of the deficiency after getting "Naqsha Dal" prepared was also passed. On the date fixed the suit of Tufail Muhammad etc. Was also adjourned to 27-6-1975 for filing of the written statement and on that date of hearing, the suits were further adjourned to 24-7-1975 for filing amended plaints. The Court on 24-7-1975 passed again an order whereby deficiency in the court-fee was directed to be made good before 8-9-1975 after getting "Naqsha Dal" prepared. Thereafter, the deficiency in court-fee was made good in both the suits by filing court-fee stamps in the Court on 5-9-1975. The additional court-fee so deposited was of the value of Rs. 1,118 in the suit of Khuda Bakbsh and others whereas in the other suit filed by Tufail Muhammad and others, the additional court-fee deposited was of the value of Rs. 1,076. It is pertinent at this stage to note that the trial Court repeated the order for making good the deficiency after preparation of "Naqsha Dal" without there being any application for extension of time for making good the deficiency in the court-fee and without apparently being conscious of the fact that there was earlier an order to the same effect on the file and that the said order had remained uncomplied with. It is also pertinent to note that in the suit of Tufail Muhammad etc., an application addressed to Senior Civil Judge was directly presented to the Revenue Officer on 29-7-1975 requesting for the supply of "Naqsha Dal" and on this application "Naqsha Dal" dated 3-9-1975 was prepared and thereafter the court-fee stamps were deposited in Court on 5-9-1975. In the other suit of Khuda Bakhsh etc., similar application was directly addressed to the Collector on 4-8-1975 and accordingly "Naqsha Dal" dated 3-9-1975 was prepared and the court-fee was paid. It is apparent from above that the plaintiffs in both the suits took no steps for preparation of "Naqsha Dal" despite the order dated 7-5-1975 till 29-7-1975 in the case of Tufail Muhammad and till 4-8-1975 in the case of Khuda Bakhsh etc.
3. The learned trial Court, however, decreed both the suits vide judgment and decree dated 26-9- 1979 repelling the objection as to court-fee under Issue No. 3 by observing "that the plaints in both the suits are presently sufficiently stamped and that the plaintiffs tentative assessment was not ridiculously low and the cases are not of contumacious behaviour of the plaintiffs in the matter of court-fee".
4. The vendees/defendants preferred appeals on 17-10-1979 by affixing court-fee of Rs. 2 on each appeal. It is common ground that the period of limitation in both these appeals expired on 9-11- 1979 as application for supply of copy of decree was made on 27-9-1979 and copies were delivered on 10-10-1979. It is also on record that in each appeal court-fee of the value of Rs. 1,500 was deposited on 18-11-1979 though the court-fee stamps had been purchased on 23-10-1979. The reason for not filing the court-f stamps till 18-11-1979 is not forthcoming on the record as the question o court-fee was not dealt with by the lower appellate Court though the learned counsel for the appellants contend that objection was duly taken but the learned Additional District Judge failed to note and consider the sat objection. The impugned judgment, however, makes no mention whatsoever of the. Said objection. The learned Additional District Judge, Jhang, however, vide his consolidated judgment and decree dated 8-6-1980 set aside the decree passed by the lower Court and dismissed both the suits holding that the order of extension of time passed by the trial Court when the suits had already become barred by time as well as the initial order granting time to make good the deficiency were bad in law as they had the effect of deeply impairing the rights of the defendants/vendees. The judgment and decree dismissing the suits passed by the Additional District Judge has been challenged in these second appeals and the same are being disposed of by this single judgment.
5. Learned counsel for the plaintiffs/pre-emptors argued that the memorandum of both the appeals being insufficiently stamped were no appeals in the eye of law and were liable to be rejected on the question of limitation by virtue of section 6 of the Court Fees Act and section 3 of the Limitation Act. Reliance was placed in this connection on Balwant Singh v. Jagjit Singh (1), Ahmad Bakhsh v. Mst. Zeb 1lahi (2) and Budhan Shah v. Shamshad Begum and others (3).
Elaborating the submission it was contended that the deficiency having been made good after the expiry of period of limitation without any order of the Court and without any application for extension of time was of no 'consequence and that the impugned decree is illegal as before proceeding to determine the appeals on merits it was obligatory for the appellate Court to determine the effect of deposit of court-fee stamps after expiry of the prescribed period of limitation and that the appeals as instituted were not competent appeals in law. According to the learned counsel waiver of the question of limitation is not permissible and mere disposal of appeal is not sufficient to lead one to the inference that the delay stands condoned as there must be something in the order itself to show that the Court concerned was conscious of the fact that the proceeding was out of time and has applied its mind to the question of limitation before dealing with the proceedings on merits. As regards merits, it was contended by the learned counsel that the discretion exercised by the trial Court in extending time for making good the deficiency was justified as the court-fee initially paid was not radiculously low and as the conduct of the plaintiffs was neither negligent nor contumacious. In support of this plea reference was made to Shah Nawaz and 6 others v. Muhammad Yousaf and 3 others (4), Muhammad Siddique and 2 others v.
Master Muhammad Ibrahim and 3 others (5) and Malik Jan Muhammad v. Shukaruddin etc. (6).
6. Learned counsel for the respondents/vendees in reply argued that the value for the purpose of court-fee described in the amended plaints after preparation of "Naqsha Dal" was Rs. 19,586.40 and as payment of the court-fee was exempted in cases where amount or value of the subject-matter does not exceed Rs. 25,G00 through Notification dated 9-7-1978 (PLD 1978 Punjab Statutes 77) read with Notification dated 4-2-1980 (PLD 1980 Punjab Statutes 20), no court-fee was in law payable in both the appeals. The precise submission of the learned counsel was that the memorandums of appeals were exempt from payment. Of Court-fee under Notification dated 9-7- 1978 and in any case Notification dated 4-2-1980 would be applicable to the memorandums of appeals though filed earlier as the said notification being declaratory and curative in nature and in effect would apply retros--pectively. In this connection reference was made to Abdul Hamid and another v. The State (7). It was thus contended that the appeals as presented with the court-fee of Rs. 2 only were properly instituted appeals. He in the alternative contended that though no . Court- fee was required to be paid yet out of abundant caution additional court-fee was affixed later on. It was asserted that the respondents acted very promptly as they purchased the court-fee stamps admittedly on 23-10-1979 well within the period of limitation but the counsel, it appears, kept the same and filed the court-fee stamps in Court on 18-11-1979 and in these circumstances the respondents who were appellants before the lower appellate Court cannot be made to suffer. It was also urged that in any case deficiency was neither pointed out by the officer nor by the opposite-party, and that even the question, whether in the circumstances the appellants before the Additional District Judge were entitled to the extension of time or not, was neither considered nor determined. Relying on Rana Muhammad Yasin etc. v. Zafar All Khan NLR 1979 Civil 70it was argued that even in the appeals such determination was necessary.
(1)AIR1947Lah.210(2)PLD1981 BJ60
(3) 1980 CLC 1788(4) 1972 SCMR 179
(5) PLD 1981 Lab. 97(6) 1980.CLC 166
(7) PLD 1963 Kar. 363
7. Before dealing with the respective submissions it is appropriate to quote for ready reference the two notifications issued under section 35 of the Court Fees Act. Notification dated 9-7-1978 is reproduced below :- "No. 5487-78/1809-ST-I.-In exercise of the powers conferred by section 35 of the Court Fees Act, 1870, the Governor of the Punjab is pleased to remit with effect from the 1st August, 1978, court-fee payable on plaints in civil suits under Article I of Schedule I when the amount or value of the subject-matter does not exceed twenty-five thousand rupees and on complaints in criminal cases under Article I(b) of Schedule II."
The second notification dated 4-2-1980 reads as under :--- "No. 353-80/248-ST-I.-In exercise of the powers conferred by section 35 of the Court Fees Act, 1870, the Governor of the Punjab in partial modification of the Punjab Government Notification No. 1487- 78/1800--ST-I, dated the 9th July, 19?8, is pleased to remit court-fee on any civil and revenue suits the value of the subject-matter whereof, or of the relief claimed therein, does not exceed twenty- five thousand rupees, at all stages, in all Courts, including revenue Court, and on complaints in criminal cases."
The questions which require determination are;-
(i) Whether notification dated 4-2-1980 has any retrospective effect, if so, whether the Memorandums of appeals are also exempt from payment of court-fee; and
(ii) whether notification dated 9-7-1978 remits court-fee payable on memorandum of appeals as well or is it limited to plaints in civil suits under Article I of Schedule I.
In view of the declared policy of the Federal Government of providing inexpensive justice, the Provincial Governments took legal measures to abolish the court-fee in respect of certain cases. In N: W. F. P. And Sind Provinces, Ordinances were promulgated. These are the North-West Frontier Province Court Fee (Abolition) Ordinance, 1978 (Ordinance XIV of 1978) and the Court Fees (Sind Amendment) Ordinance, 1978 (Ordinance XIII of 1978). These Ordinances provided that no court- fee shall be payable or chargeable by any Court in respect of any criminal case or any case of civil nature, the value of the subject-matter whereof or relief claimed therein does not exceed twenty- five thousand rupees. In Shahzullah v. Syed Shahabuddin and another PLD 1979 Pesh. 33it was held that the language of enactment promulgated in Frontier Province is exhaustive and brings within its provision court-fee leviable in all Courts including the High Court, not only under the Court Fees Act, 1870, but also under any other law for the time being in force or any rules or orders. It was further held that even process serving fees in case of civil nature are not payable in civil suits, appeals or revision in cases where the value of the subject-matter or relief claimed does not exceed twenty---five thousand rupees. As against this the method adopted in Punjab Province was to issue notification under section 35 of the Court Fees Act. Section 35 empowers the Government to remit or reduce any of the fees mentioned in the 1st and 2nd Schedule to the Act.
The Ist notification so issued on 9-7-1978 provided that Governor of the Punjab is pleased to remit with effect from Ist August, 1978, court-fee payable on plaints in civil suits under Article I of Schedule 1 when the amount or value of the subject-matter does not exceed twenty-five thousand rupees and on complaints in criminal cases under Article I(b) of Schedule 11. It would be noted that in this notification specific mention was made of the plaints under Article I, Schedule 1. This Article besides plaints makes mention of written statements, pleading a set off o counterclaim, memorandum of appeal not otherwise provided for in the Act, as well as of cross objections. Moreover, the word `plaint' occurs in Article 2 of Schedule I and in Articles 5, 6, 12 and 17 of the Second Schedule.) The specific mention of the `plaint' and Article I of Schedule I would naturally mean that the law-maker did not intend to give-the same benefit! To the other documents mentioned in the same Article and to the plaints mentioned in the other Articles of the Schedules. It is also to be remembered that the Court Fees Act is a fiscal enactment and its provisions as well as the provisions of exemption notifications are to be strictly construed. It i. Also well established that the provisions granting exemption have to construed strictly against the persons claiming the exemption and if the claim made does root fall within the provision, there can be no exemption with regard to it. See Muhammadi Steamship Co. Ltd. v. The Commissioner of Income-tax (Central) Karachi (1).
Moreover, the exemption is not only to be D construed strictly but is also to be confined to the extent permissible by the. Express language of the instrument itself and i3 not to be extended beyond it. See Messrs Rehmat UIlah & Sons v. Commissioner of Sales Tax, Lahore (2). I am fortified by the view taken in the case of Muhammad Anwar Khan v. Additional District Judge, Rawalpindi (3). A Division Bench of this Court interpreting section 19 of the Family Courts Act observed as under; "The Legislature in section 19 used the ward `plaint' and not 'suit'. Article I of Schedule I provides both for the plaint and the memo--randum of appeal. If the intention of the Legislature had beers to-- include 'memorandum of appeal' in the word `plaint' it would have not used both the terms. The expression `plaint' or 'memorandum of appeal' is used also in other Articles of Schedule FI, Articles 4, 5 and 17. There is thus a distinction between the plaint and memorandum of appeal' and it is entertained in the Family Courts Act. A plaint is presented in the Court of initial jurisdiction whereas memorandum. o appeal, as the expression itself connotes is before the Appellate Court or Appellate Authority. The appeal is continuation of proceeding so in the suit but plaint and memorandum of appeal are two different documents. The Court Fees Art provides for fees to be charged on document and not on proceeding. Thus if the Legislature had intended that the court- fee for the plaint and the memorandum of appeal should be the same, it would have along with the word 'plaint' also included `the memorandum of appeal' in section. 19."
(I) PLD 1966 SC 828 (2) 1973 PTD 36'
(3)P T. In 19718 Talk_ 716 In view of the above the contention that court-fee was not payable only memorandum of appeals in view of notification dated 9-7-1978 is with any substance. The second submission that the notification dated 4-2-198 is to be applied retrospectively as the same is curative and declaratory ac made with the intention to clarify the intention of the law-maker is also without merit. Firstly, there is nothing in the notification itself to indicate that the said notification was declaratory of the intention of the law-maker and was intended either to remove any existing doubts or to set aside an judicial error which is usually the purpose of an explanatory and declaratory legislation.
Secondly, case of Abdul Humid v. State cannot be relied upon to advance this contention as the notification dated 20-11-1962 discussed in the precedent case itself provided in clear words that the appointment made is to be treated to have been made with effect from 22-8-1961 and that territorial limits of jurisdiction are to be and at all material times to have been the Divisions of Karachi, Hydarabad and Khairpur. The express words used in the said notification clearly manifested the curative natur H of the said notification but the same cannot be said with respect to the notification dated 4-2-1980, as it was issued in partial modification of notification dated 9-7- 1978.
The principle of interpretation laid down in the Burmah Oil Company Ltd. v. The Trustees for the Port of Chittagong PLD 1961 SC452is that where an alteration of notification is made by other notification, such an amendment or change will take effect only from the date of its promulgation unless it has bee expressly or by necessary intendment made to take effect retrospectively. No such intention can be spelled out from the notification in question especially in view of the law laid down in the case of Muhammad Anwar I Khan. The intention of the law-maker to include memorandum of appeal in the term "plaint" used in the earlier notification cannot be therefor inferred. It is, therefore, apparent that neither the earlier notification intended to exempt "memorandum of appeal" from payment of court-f nor the later notification can be given retrospective effect even if it is assured for the sake of argument that memorandum of appeal stands exempted from the payment of court-fee thereunder.
8. On the above view of the matter, it is not necessary in this case to go into the question whether memorandum of appeal or revision stand exempted from payment of court-fee under notification dated 4-2-1980 as the view taken by me is that to the memorandum of appeals under discussion notification dated 4-2-1980 does not apply. The matter, however, does not end as in the instant cases the deficiency in the court-fee was admitted) made good before decision of the appeals but the effect of filing the appeal initially without proper court-fee as well as the effect of making good the deficiency was not determined by the appellate Court. The question whether the appellants before the lower appellate Court were entitled to the gray of extension of time under section 149, C. P. C.
Was also not considered. It is well established that without considering the aforesaid question the appeals could not be dealt with on merits. In the circumstances, there is n alternative but to remand these cases to the lower appellate Court for fresh decision. The appellate Court before proceeding with the appeals on merit will allow opportunity to the parties to show the circumstances due to which the court-fee was not deposited in time and will also consider as to whether in the circumstances of the case, the appellants before it. Are entitled to the exercise of discretion vesting under section 149, C. P. C.
9. Before parting with this judgment it may be added that instead of issuance of notifications under section 35 of the Court Fees Act it would have been much better if an Ordinance had been issued by the Punjab Government, as was done by the Governments of North-West Frontier ands Sind Provinces. Section 35 of the Court Fees Act, can be pressed into' service to reduce or remit fees mentioned in the Ist and 2nd Schedule to the Court Fees Act only. It is to be remembered that provisions in respect of court-fee are found not only in the Court Fees Act but various other Central and Provincial Acts also contain provisions relating to court-fee in matters of civil nature. A notification issued under section 35 of the Court Fees Act will remain restricted in operation to the provision of schedule only whereas under the Ordinance like the one issued by the Frontier Government court-fee payable under the Court Fees Act as well as under any other law can be abolished or done away with. By promulgating Ordinance the complicated question whether the word `suit' includes 'appeal' can be avoided as otherwise the debate as to legality and validity of the notification issued in terms of section 35 of the Court Fees Act and as to the true interpretation of the words used will continue. The superior Courts, keeping in view the text of the law therein under discussion have held in some cases that `suit' which ordinarily means civil proceedings instituted by the presentation of a plaint includes an appeal (See PLD 1962 Dacca 600) but in other cases while interpreting other laws have held that the word `suit' does not include an appeal, See Majlish Khan v. Narmdhar Khan (1) and Mir Baluch Khan and others v. Mst. Lal Bibi and others (2). There is no doubt that an appeal in continuation of the proceedings in the suit but plaint and memo--randum of appeal are two different documents. Therefore, in order to avoid these complications and also to allow the same benefit to the litigants in Punjab as has been allowed by the Governments of North-West Frontier and Sind Provinces, the Government will be well advised to promulgate an Ordinance, in the matter of court-fee.
10. The upshot of the above discussion is that both the regular second appeals stand accepted with the result that the appeals filed by the respondents vendees shall be decided afresh by the learned lower appellate Court in the light of the observations made above. There shall be no order as to costs. - (1) PLD 1967 Dacca 689 (2) PLD 1972 SC 84