1. ABDUL SHAKOOR, J.--- Through instant constitutional petition, the petitioners seek an appropriate writ against the respondents with the following prayer:--- "this Hon'ble court may graciously be pleased to declare that the impugned judgments/orders (1) dated 21.4.2017 have been passed by the respondent No.3 in flagrant violation of the relevant law/rules, the same are set aside and the respondent No.2 is directed to issue local Commission (under Sections 9 and 10 of the Court Fees Act, 1870) for ascertaining net profit or market value of the suit property and if found liable to court-fee then the suit shall be dismissed on the ground of limitation with costs throughout."
2. 2.Brief facts of the case are that plaintiffs/ respondents Gulbat Khan etc filed a civil suit for possession through exercise of right of preemption. The petitioners/ defendants were put on notice, who appeared and filed an application before the trial court for rejection of plaint undei Order VII, Rule 11, C.P.C., on the ground that the plaintiffs have not deposited the requisite court fee.
3. The learned trial court after hearing the parties, dismissed the application vide order dated 14.02.2014. Feeling aggrieved by the order of learned trial court, the petitioners preferred a civil appeal before the learned District Judge, which was also dismissed vide judgment dated 21.4.2017.
4. Thereafter, the petitioners moved a Review Petition before the learned District Judge, on the ground that the findings of the learned appellate court are patently against the law and facts on the subject matter. The learned District Judge, Bannu after hearing both the parties, dismissed the same vide order dated 04.10.2017, hence the instant writ petition.
5. 3.Arguments heard and record perused.
6. 4.The matter, relating to valuation for determination of any fee chargeable, section 12 of the Court Fees Act envisages as follows:-- "12. Decision of question as to valuation.--- (i) Every question relating to valuation for the purpose of determining the amount of any fee chargeable under this Chapter on a plaint or memorandum of appeal shall be decided by the Court in which such plaint or memorandum, as the case may be, is filed and such decision shall be final as between the parties to the suit.
(ii) But whenever any such suit comes before a Court of appeal, reference or revision, if such Court considers that the said question has been wrongly decided to the detriment of the revenue, it shall require the party by whom such fee has been paid to pay so much additional fee as would have been payable had the question been rightly decided, and the provisions of section 10, paragraph (ii), shall apply.
7. 5.In addition section 28 of Court Fees Act provides as follows:-- "28. Stamping documents inadvertently received:--- No document which ought to bear a stamp under this Act shall be of any validity, unless and until it is properly stamped.
8. 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 proceeding relative thereto shall be as valid as if it had been properly stamped in the first instance. [Emphasis added] 6.Another statute that can provide useful guidelines in answering the above question in the Code or Civil Procedure, 1908 (hereinafter referred as the C.P.C.). Section 149 of the C.P.C. confers on a Court. the discretion to allow payment of court-fee which was payable and was not paid. It is significant to note that such power can be exercised at any stage of the case. Likewise Order VII, rule, 11 C.P.C. empowers a Court to reject the plaint where "the plaint is written on paper insufficiently stamped and on being required by the Court to supply the requisite stamp paper within the time to be fixed by the Court, fails to do so". [Emphasis added] 7.The policy of law, in matters relating to payments required to be made by a litigant by way of fee, fine or other deposits appears to point towards flexibility rather than rigidity. Substance rather than form is the underlying principle. This is an area of the law where the litigant is, in most instances, given leeway and shown flexibility to enable him to meet technical requirements, which have inadvertently, in ignorance or because of misconception or misinterpretation of the relevant provision or the law remained unattended.
9. 8.It was held in "Akbar All and 4 others v. Province of Punjab (1989 SCM R 1040) that "it is for the functionaries of the Court to scrutinize the memorandum to ascertain whether it is properly stamped and also for the counsel to inform the appellant of the same. As a consequence when a plaint deficiently stamped is presented within limitation, it cannot be dismissed on the ground that it is deficiently stamped. Reliance can also be placed on "Siddiq Khan and 2 others v. Abdul Shakar Khan and others" (PLD 1984 SC 289), "Shahena Khan v. Aulia Khan and others" (PLD 1984 SC 157).
10. 9.A combined reading of various statutes dealing with payment of court-fees etc. including sections 12 and 28 of the Court Fees Act, 1870 and section 11 of the Suits Valuation Act, 1887 points to the conclusion that deficiency in court-Fee can be ordered to be made good subsequently.
11. Likewise, the provisions of order VII Rule 11 and section 149, C.P.C. read together lead to the conclusion that where court-fee affixed is found to be deficient, the Court cannot dismiss the suit or appeal without specifying the deficiency and fixing a date for payment. On compliance it has the same force and effect as if the fee had been paid in the first instance. "Mst. Parveen v. Mst.
12. Jamsheda Begum" (PLD 1983 SC 227).
13. 10.It has been held that on discovery of deficiency or on it being pointed out the Court is bound to ascertain the deficiency in court-fee and then give time to make up such deficiency. Sardar Muhammad Karm Ziaudin Durrani and others v. Sardar Muhammad Asim Fakhruddin Durrani and others 2001 SCM R 148, Ch. Nazir Ahmad v. Abdul Karim and another PLD 1990 SC 42. The policy of law is not to penalize a litigant on account of deficiency of fees. Siddique Khan and 2 others v.
14. Abdul Shakir Khan and another PLD 1984 SC 289. Court Fees Act is not meant to arm a litigant with a weapon of technicality against his opponent, but to secure revenue for the State. Messer Muhammad Siddiq Muhammad Umar v. Australasia Bank PLD 1966 SC 684. Rejection of plaint can take place only if after the Court allows time for supplying the requisite court-fee, the plaintiff fails to do so. A plaint can be rejected after the Court has determined the exact amount payable and has given an opportunity to the plaintiff to make good the deficiency and he fails to do so within the time fixed by the Court. Deficiency can also be made good under section 151, C.P.C. Faqir Muhammad and 8 others v. Noor Muhammad 1970 SCMR 188. When the plaint is presented within limitation, it cannot be said to be barred by law merely on account of its being deficiently stamped for in such case provisions of Order VII, rule 11, section 149 and section 148, C.P.C. and those of section 10 of the Court Fees Act are attracted and the suit cannot be said not to have been validly instituted. Mst. Parveen v. Mst. Jamsheda Begum PLD 1983 SC 227, Siddique Khan and 2 others v.
15. Abdul Shakir Khan and others PLD 1984 SC 289.
11. For what has been discussed above, the instant petition being I B devoid of merit is hereby dismissed in limine.