' This judgment will dispose of F. A. O. Nos. 307 and 308 of 1980 as both the appeals raise common questions of law and arise out of the same set of facts. - Briefly the facts giving rise to both the appeals may be stated.
F. A. O. No, 307 of 1980
1. In this case the facts are that the agricultural land measuring 78 Kanals 10 Marlas situated in Mauza Luck Badhar, Tehsil and District Jhang, originally, belonged to one Ghous Muhammad and was purchased by Malik Fazal-ui-Haq and Malik Shamsul Haq, appellants in this appeal, for a total consideration of Rs, 1,03,300 on 4th March, 1976. On 2nd March, 1977 when two days were left in the expiry of the limitation fo filing of the suit Hassan Muhammad filed a suit for pre-emption on a court-fee of Rs, 10 only. According to the appellant the statement o nett profits did not accompany the plaint. On 4th March, 1977 the respondent was required by the Court to file Naqsha Pedawar. On 14t April, 1977, the respondent applied for obtaining a copy of Naqsh Pedawar which was prepared on 16th May, .1977 and produced in Court on 31st May, 1977. On 2nd June, 1977 the respondent was directed to make up the deficiency in the court-fee upto 27th July, 1977. Consequently the respondent made up the deficiency on 20th July, 1977. The appelant contested the suit and raised objection regarding the valuation of the suit. An application was also filed on 7th July, 1979 for the rejection of the plaint on the ground that the deficiency in the court-fee has been made up after the expiry of the period of limitation and the, conduct of the respondent/plaintiff in filing the suit on a ridiculously low court-fee of. Rs, 10 without obtaining the statement of nett profits was contumacious. The deficiency made up was also challenged on the ground that the statement of net profits was for a wrong period and did not relate to the year preceding the filing of the suit. The learned trial Court accepted the contention of the appellant and rejected the plaint vide its order dated 3rd February, 1980. The respondents filed an appeal which was accepted on 30th September, 1980 which forms the subject-matter of this appeal being No, 307 of 1980. The grounds on which the plaint was rejected by the learned trial Court were to the following effect :- "The suit property measures 78 Kanals 10 Marlas of land. The plaintiff has admitted Rs, 60,000 as sale consideration for the suit land. The plaintiff was directed for the first time in this case on 4th March, 1977 to get prepared a statement of nett profits and to put it in Court till 31st May, 1977. He got prepared a statement of nett profits on 16th May, 1977, and put it in the Court on 31st May, 1977.
He did not care to make good the deficiency in court-fee till 20th July, 1977. The deficiency in court- fee of the value of Rs, 2,090 was put in on 20th July, 1977. The plaintiff has got prepared a statement of nett profits with regard to the crops of Kharif 1975 and Rabi 1976. This suit has been filed on 2nd May, 1977. The plaintiff was obliged to put in statement of nett profits for the preceding year from the institution of this suit and this period comes from 2nd March, 1976 to 2nd March, 1977. The relevant harvests are Rabi and Kharif 1976 and not Kharif 1975 to Rabi 1976. He has got prepared a statement of nett profits for a. Wrong period. He has filed the plaint with a notional court-fee of Rs, 10 and has arbitrarily assessed Rs, 100 at 15 times of the nett profits of the year preceding this suit.
The suit is a suit for pre-emption. The plaintiff is not entitled to any indulgence or leniency. The suit was filed at the fag end of limitation and only two days when limitation was to expire."
' It was further observed :- "the plaintiff put in Naqsha Daal as back as on 31st May, 1977 though he got this statement of nett profits prepared for a wrong period as stated above. He did not care to make good the deficiency in court-fee even till 20th July, 1977 when the period of limitation had already expired on 4th March, 1977. The plaintiff remained inactive towards making good the deficiency in court-fee for about 4 months. The authority as contained in 1979 SC 821, and relied upon by the vendees-defendants applies to the facts of the case on all fours. Under the circumstances given above I hold that conduct of the plaintiff remained contumacious towards making up the deficiency in court-fee."
F . A.
0. No, 308 of 1980
2. The facts of this case are that agricultural land measuring 26 Kanals and 4 Marlas situate in village Luck Badhar, Tehsil and District Jhang as described in the plaint belonged to one Muhammad Siddiq from whom the appellant purchased the said land for a consideration of Rs, 45,000. Hassan Muhammad respondent also filed a suit for pre-empting the said land on 19th January, 1977 when only one day was left in the ,expiry of the limitation. This suit, as has been seen in the case of the other suit pertaining to F. A.
0. No, 307 of 1980, was filed on a nominal court-fee of Rs, 10 and the second suit was also not accompanied by any statement of nett profits. On 29th January, 1977, the respondent was required to file Naqsha Pedawar. The respondent of his own accord applied for obtaining of the Naqsha Pedawar which was prepared on 27th February, 1977 and filed in the Court on 15th March, 1977. On 2nd June, 1977 the trial Court directed the respondent to make up the deficiency in the court-fee upto 24th July, 1977. The respondent made up the deficiency by depositing the court-fee of Rs, 1,043. In this case also on the objection of the appellants, the plaint was rejected on 3rd February, 1980. The respondent filed an appeal which was accepted on 30th September, 1980 and this order is the subject-matter of this appeal bearing No, 308 of 1980.
3. The ground on which the plaint was rejected by the learned trial Court was to the following effect :- "The suit property measures 26 Kanals 4 Marlas of land. The plaintiff himself has admitted Rs, 25,000 as sale consideration for the suit land. The plaintiff was directed for the first time in this case on 19th January, 1977 (correct date is 29th January, 1977) to get prepared a statement of nett profits and to put it in Court till 15th March, 1977; He got prepared a statement of nett profits on 27th February, 1977 and did not put it in the Court till 15th March, 1977. He did not care to make good the deficiency in court-fee till 20th July, 1977. The deficiency in court-fee of the value of Rs, 1,043 was put in on 20th July, 1977. The plaintiff has got prepared a statement of nett profits with regard to the crops of Kharif 1975 and Rabi 1976. The suit has been filed on 19th January, 1977. The plaintiff was obliged to put in statement of nett profits for preceding year from institution of this suit and this period comes from 19th January, 1976 to 19th January, 1977. The relevant harvests are Rabi and Kharif 1976 and not Kharif 1975 to Rabi 1976. He has got prepared a statement of nett profits for a wrong period. He has filed the plaint with a notional court-fee of Rs, 10 and has arbitrarily assessed Rs, 100 at 15 times of the nett profits of the year preceding this suit. The suit is a suit for pre-emption.
The plaintiff is not entitled to any indulgence or leniency. The suit was filed at the fag end of limitation and only a. Day before the limitation was to expire".
' It was further observed :- "The plaintiff put in Naqsha Daal as back as on 27th February, 1977 though he got this statement of nett profits prepared for a wrong period as stated above. He did not care to make good the deficiency in court-fee even till 20th July, 1977 when the period of limitation, had already expired on 29th January, 1977. The plaintiff remained inactive towards making good the deficiency in court-fee for about five months. The authority as contained in 1979 SC 821 and relied upon by the vendees defendants applies to the facts of the case on all fours. Under the circumstances given above I hold that conduct of the plaintiff remained contumacious towards making up the deficiency in court-fee."
4. The reasons as to why the plaint was rejected by the learned trial Court had already been given above but the learned District Judge, Jhang accepted both the appeals on similar grounds and observations. According to the learned District Judge although no indulgence could be shown to a persistently contumacious litigant but the penal provisions of Order VII, rule 11, C. P. C. Should not have been invoked, particularly when the matter in controversy had been covered under issues Nos. 1 and 2. The relevant observations relating to both the suits in the words of the learned District Judge are quoted below :- "After perusing the aforementioned rulings on the point it becomes clearly evident that although no indulgence should be shown to a persistently contumacious litigant but at the same time a Court should be slow to apply the penal provisions to non-suit the litigants. The facts of the instant case would show that the deficiency in court-fee was made up within the time prescribed by the Court although beyond the limitation period. In such a situation it cannot be said that the appellant/pre- emptor was contumacious or obdurate to withhold the proper court-fee. In such a case the learned trial Court should have refrained from applying the penal provisions of Order VII, rule 11, C. P.
C. Particularly when the matter in controversy had already been reduced into the form of issues Nos. I and 2 alongwith the other issues framed on merits. The best course for the Court should have been to proceed in the trial instead of applying closure in between. 1, therefore, accepted the appeal, set aside the impugned order and restore the suit of the appellant/ pre-emptor to the same stage at which the plaint was rejected. The case is accordingly remanded for further trial in accordance with law. The parties are directed to appear before the learned trial Court for further proceedings on 7th October, 1980. Costs will follow the event."
' The above observations of the learned District Judge would show that he had set aside only the order of rejection of the plaint and issues Nos. 1 and 2 relating to the court-fee are yet to be decided by trial Court.
5. The controversy that would now arise for determination in the present appeals may be formulated as under :-
(i) Whether in view of the discretion having been exercised by the trial Court under section 149, C. P.
C. To grant extension of time to the respondents the same could be reviewed by the trial Court.
(ii) Whether the trial Court could reject the plaint on the basis of the orders already passed in the case before decision was given on issues relating to proper valuation of the suit as covered under issues Nos. 1 and 2.
(iii) Whether this Court sitting in appeal can .Decide the question as to whether the trial Court could properly exercise its discretion in the passing of orders of rejection of the plaint.
6. Sections 4 and 6 of the Court Fees Act, 1870 provide that no documnent chargeable with court- fee shall be filed or recorded in any Court unless proper court-fee has been affixed thereon.
Consequently, the institution of any proceedings cannot be valid if proper court-fee has not been affixed at the time of institution. Section 149 provides one exception to this rule and is to the effect that the deficiency in court-fee can be ordered to be made good subsequently. Accordingly where a document has been presented to the Court within the period of limitation, but it is deficiently stamped or not stamped at all, the Court can allow the deficiency in court-fee to be paid, even though the limitation for the presentation of such document has expired. Provisions of Order VII, rule 11 and section 149 have to be read together, and when the plaintiff is required to correct the valuation or relief claimed, he shall further be required to supply the requisite stamp paper and on compliance, it shall have the same force and effect as if the fee had been paid in the first instance.
The combined effect of these provisions is that the payment of court-fee gives the retrospective effect from the date when the document was first presented to the Court. Section 149 deals with the initial allowing of time for the payment of court-fee whilst section 148 deals with the enlargement of time previously fixed for the payment of court-fee.
7. Order VII, rule 11, C. P. C. For the sake of convenience may be reproduced below :- "11. Rejection of plaint.-The plaint shall be rejected in the following cases
(a) where it does not disclose a cause of action ;
(b) where the relief claimed is undervalued, and the plaintiff, on be in required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so ;
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so ;
(d) where the suit appears from the statement in the plaint to be barred by any law. Under clause
(b) the Court can only order the plaintiff to correct the valuation again by itself affixing valuation in place of plaintiff's valuation and for the purposes of determining the correct valuation under this clause Court can only look at the plant and it is where the question of rejection of the plaint would arise without framing an issue regarding the correct calculation of the court-fee. The rejection of a plaint under clause (c) can only take place after the Court allows time for supplying the requisite court-fee and the plaintiff fails to do so. Where the deficiency is made up the suit shall be deemed to have been instituted on the day when the plaint was presented. The rejection would become mandatory when having called upon the plaintiff to comply with the provisions 01 clauses (b) and
(c) the plaintiff has failed to do so.
8. The contention of the learned counsel for the appellant is that section 149 is enabling section while Order VII, rule 11 is disabling provision and the power to give time flows from section 149 and not from Order VII, rule 11. It is further contended that it has been consistently held that section 149.
C. P. C. Was the governing section. According to the learned counsel for the appellant in pre- emption cases where the court-fee prescribed on nett profits preceding the year there is no question of ascertaining or any inquiry and if the court-fee is not paid on the plaint the time cannot be extended under sectio n 149 in order to give validity to the plaint and in such a case to grant time under section 149 the conduct of the plaintiff would be a relevant fact.
9. In support of his contention the learned counsel for the appellant has relied on a judgment of this Court reported as Jagat Ram v. Misar Kharaiti Ram and another. In this case in the order of reference by a Division Bench of Full Bench it was held that it was not incumbent upon the Court of justice to allow the plaintiff an opportunity to make good the deficiency under Order VII, rule 11. It was further observed that Order VII, rulel 1 was not an enabling provision and had nothing to do with the power of the Court to have the deficiency made up. Provisions of Order VII, rule 11 were, on the other hand, termed as disabling provision enjoining the Court to reject a plaint if the deficiency was not made good as ordered by the Court. It was further held that the authority to issue the order lay in section 149 and not the penalty of default under rule 11, Order VII. As regards section 149 it was observed that discretion conferred on the Court by section 149 was normally expected to be exercised in favour of litigant's interest in the absence of contumac y.
10. The learned counsel for the appellants also relied on a judgment of this Court reported as Saeed Ahmad, etc. v. Karim Bakhsh. The facts of this case were that the respondent had filed a suit for possession of land through pre-emption. They were directed by the trial Court to make up the deficiency in court-fee till 3rd December, 1968. Later on the time in this behalf was extended and the deficiency was not made up. The deficiency was, however, made up after the expiry of the period fixed by the Court. This fact was brought to the notice of the Court. The plaint was, therefore, rejected. The Additional District Judge on appeal accepted the same mainly on the ground that since the making up of the deficiency in court-fee was accepted, therefore, the deficiency, if any, was, made up and the time in this behalf should be deemed to have been extended impliedly. This judgment was challenged in the High Court and the appeal was accepted. It was a case where the order had not been complied with and the court-fee was entertained by the Court without applying its mind to the extension of time and the question of court-fee involved. In this case, the judgment reported as Karim Bakhsh v. Qadir Bakhsh was distinguished. This case reported as Saeed Ahmad etc. v. Karim Bakhsh was also relied in another judgment of this Court reported as Mahmood v. Muhammad Siddique. This was also a pre-emption case and only a court-fee stamp worth Rs, 1.12 was affixed on the plaint but in the plaint it was asserted that the deficiency in court- fee, if any, will be made good on the receipt of revenue papers. The trial Court passed the order that the deficiency of the court-fee be made good by the certain date meanwhile the Court was established on some other plat and in that Court the question regarding the compliance of the order of court-fee was raised on which the counsel made a statement that the stamp papers had been left with the Reader of the Court. They were subsequently traced out and placed on record., The objection regarding the court-fee was overruled. However, on appeal the Additional District Judge rejected the plaint after examining the conduct of the plaintiff in not complying with the orders of the Court in making up the deficiency in court-fee. This order was upheld in the High Court holding that the conduct of the plaintiff in compliance of the order of the Court was contumacious.
11. The learned counsel for the appellants also relied on a judgment redorted as Mst. Walayat Khatoon v. Khalil Khan, in support of his contention that the Court was not bound in all cases, in the first instance, to grant time to the 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 insufficiently stamped plaint. I would have examined this judgment in detail as well as other judgments relied upon by the learned counsel for the appellants but it appears that all the points raised in the present appeal stand concluded in a D. B. Judgment of this Court reported as Muhammad Siddiq v. Master Muhammad Ibrahim. The questions noted above for decision in this case were precisely the same which had been formulated in this case at page 103. This judgment was delivered in a Regular First Appeal where both suits instituted by the two sets of appellants on the last date of limitation were dismissed. On the same day, both sets of appellants in their respective suits made applications1 2 3 4 5 6 under section 149, C. P. C. For extension of time to pay the balance court-fees. In these applications they stated that copies of statements of the nett profits, etc., had not been obtained by them and therefore, extension of time be granted to them to make good the deficiency in the court-fees after such copies were received from the Revenue Authorities. None of the appellants in the two cases had applied for the copies of the statements of the nett profits, etc. But they did so later. The contention raised by the vendees was that this amounted to misrepresentation. Both these applications were allowed by the trial Court and time was granted to both sets of appellants to make up the deficiency of the court-fee before the specified dates. The appellants deposited the deficient court-fee at the very first hearing after the institution of the suit as directed by the trial Court. The three questions that were formulated are reproduced below :-
(i) whether the alleged "wrong statements" made by the appellants in their applications for extension of time filed under section 149, C. P. C. Were fatal to their suits and that therefore, both the suits, could be rejected on the ground of mala fides or gross negligence ;
(ii) whether in view of the discretion having been exercised by the trial Judge under section 149, C.
P. C. To grant extention of time to the appellants the same could be reviewed later by the trial Judge by framing issues Nos. 3 and 6 and giving a finding against the appellants in respect thereof ; and
(iii) whether, assuming that the trial Judge could not review his earlier orders dated 15th November, 1975 extending time in favour of the appellants, this Court sitting in appeal can look into the question as to whether the trial Judge did properly exercise his discretion in the matter when passing his orders dated 15th November, 1975 and 5th January, 1976.
' After discussing the entire case law on the point the provisions of section 28 of the Court Fees Act, section 149 and Order VII, rule 11, C. P. C. Were examined together. It was observed that the rejection of the plaint does not preclude the plaintiff from filing a fresh suit and these provisions read together, therefore, show 'that the plaintiff who would be hit by the disabling provisions of the Court Fees Act, which is a fiscal statute, due to minor or major delinquencies, or of Order VII, rule 11 of the Civil Procedure Code, 1908 for contumacy, is otherwise saved. There is no element of limitation incorporated in these provisions and no such element can, therefore, be directly imported into these provisions so as to unduly deflect the discretion of the Court into any guided channels when deciding applications for grant of permission to make up deficiency of court-fee. Section 28 of the Court Fees Act, 1870 and section 149 of the Civil Procedure Code, 1908, are liberally worded as to save plaints not properly stamped from the charge of expiry of-limitation, after deficiency is made up, provided the initial defect was not deliberate (mala fide) or due to gross negligence or due to some similar reason, which the Court considers as one gravely prejudicing the plaintiff to secure such a concession. When exercising the discretion in granting time to make up deficiency of court- fee, the matter is basically one between a party and the State regarding the recovery of State revenue and the penalty provided is not for the benefit of the opposite-party, but for the State. The discretion, though indirectly meant for fiscal recovery, is provided to meet those bona .Fide cases where a person by inadvertence or mistake has paid less court-fee or where a person for want of relevant documents or material necessary to determine and calculate the proper court-fee payable, has not been able to do so and has affixed tentative court-fee on his document, or where a person, who notwithstanding diligence and fair efforts made, has not been able to secure the proper court-fee stamps in time. It is only in extreme cases which show that a party has deliberately avoided payment of full court-fee which he knew of and could have paid or having bona fide paid less court-fee and having been given fair time to make good the deficiency has not exercised due diligence in paying the same or has shown contumacious disregard to the orders of the Court, that discretion should be withheld. The view of this Court in Jagat Ram v. Maar Kharaiti Ram and another Karim Bakhsh v. Qadir Bakhsh and Muhammad Sharif Khan v..Ghulam Farid and7 of the Supreme Court in Shah Nawaz v. Muhammad Yusuf, that discretion should normally be exercised in favour of the litigant" except in cases of contumacy or positive mala fide, or reasons of a similar kind" correctly reflects the proper principle applicable in such cases". As regards the question whether the appellants had acted mala fide in securing the orders extending time for the payment of deficit court-fee on wrong facts it was observed that generally in this part of the country pre-emption suits are instituted on tentative court-fees and balance court-fees are later paid on obtaining statements of mesne profits from the revenue officials generally through Courts, because securing of such statements from the revenue officials directly is not only difficult but highly expensive. Reliance in this behalf was placed on another D. B. Judgment of this Court reported as Malik Jan Muhammad v. Shukaruddin and 6 others.
12. As regards the question whether the trial Court after allowing the extension of time to both the sets of the appellants to make good the deficiency in court-fee by a certain date could have reviewed his orders by framing issues and deciding the same against the appellants it was held that the same could not have been done. In this con nection it was observed as under :- "Once the power was exercised under section 28 of the Court Fees Act, 1870, or under section 149 of the Code of Civil Procedure, 1908 and deficient court-fees were made good, the plaints became valid and properly stamped documents as if they had been so properly stamped in the first instance. Once the plaints acquired the said status, unless the Court reviewed its twin orders dated 15th November, 1975 and 5th January, 1976 passed in both the suits on proper applications of the opposite party made to that effect, the orders must survive any threat of rehearsal which may be made through any findings given by the Court on issues framed in a general way. If any authority is required for this view, Dharma Nath Sharma v. Madhu Chandra Mahata (AIR 1939 Cal. 722) and Karim Bakhsh v. Qadir Bakhsh (PLD 1979 Lah. 228) may be cited. In the instant suits, the two orders dated 15th November, 1975 granting time to the two sets of appellants to pay the balance court- fees by 5th January, 1976, were unconditional and not passed subject to any objections that could be taken by the respondents later. Had the two orders dated 15th November, 1975 been so conditional, perhaps we could have said that it was within the jurisdiction of the trial Judge to revise, them, whether on affidavits or after framing an issue and receiving evidence thereon. But this not being the case, any objection thereto could only have been taken by the' respondents by way of a review or revision petition formally filed in that behalf."
' The Division Bench also relied on the case of Shah Nawaz v. Muhammad Yusuf, for the proposition that the discretion was exercised by the trial Court in favour of the plaintiffs granting them time to pay the deficit court-fee. Relying on this judgment the findings on issues Nos. 3 and 6 were reversed.
13. The relevant observations of the learned District Judge have already been quoted above. The learned District Judge had observed that although no indulgence should be shown to a persistently contumacious litigant but where the deficiency in the court-fee was made up within the time prescribed by the Court it could not be said that the conduct of the t plaintiff was contumacious. In the present case the issues regarding th valuation of the suit had already been struck and the learned Judge was perfectly justified in observing that in these circumstances th D penal provisions of Order VII, rule 11, C. P. C. Should not have been invoked in the present case. These observations are strictly in conformity with the observations in the judgment of the Court reported as Muhammad Siddiq v. Master Muhammad Ibrahim.
14. In the light of the above discussion these appeals have no force and are hereby dismissed.
However, keeping in view the nature of. The questions involved there will be no order as to costs.
AIR 1938 Lab. 361 PLD 1976 Lab. 6868 9 1 2 PLD 1954 Lab. 228 1979 CLC 539 PLD 1979 SC 821 PLD 1981 Lab. 97 AIR 1938 Lah. 361 1972 SCM R 179 1980 CLC 186