' GHAZANFAR Au GONDAL, J.-The facts of the case are that Muhammad Aslam etc. Sold 54 kanals of suit land situate in village Badar Din, Tehsil Hasilpur District Bahawalpur by registered sale-deed dated 11-4-1979 for an ostensible sale price of Rs, 70,000 in favour of the respondent defendant Inayatullah. Muhammad Saleem minor son of Muhammad Aslam, one of the vendors acting through his maternal uncle, also named Muhammad Aslam, filed, on 10-4-1980, a suit for possession through pre-emption of this land. In para. 10 of the plaint he alleged that the net profits which accrued from the said land in the previous year was a sum of Rs, 1401.66 and value of the suit for the purpose of court-fee at 15 times of the said sum of net profits comes to Rs, 21,024.69 and (the said sum being less than the sum of Rs, 25,000) no court-fee was leviable on this suit. Along with the suit was filed schedule of net profits dated 10-4-1980 which appeared to have been prepared by some Munshi. There are alterations and interpolations in this schedule. It appears from it that originally after deducting expenses of manure amounting to Rs, 1,916.00 and expenses of seeds amounting to Rs, 1,320.52, the total of expenses was shown to be Rs, 3,236.52 and after deducting the said sum from total profits of the land in question, total net profits of land in question was shown to be Rs, 5205.00 but later on expenses of seeds were increased to Rs, 2,320.52 and the total of expenses was increased to Rs, 4,236.52 and the sum of total net profits was reduced to Rs, 4,205.00 by overwriting new figures on the original figures. Similarly the rate of chai was changed from 2/5th to 1/3rd by overwriting and against this entry figure of share of profits of the landlord was also changed from a bigger amount to a sum of Rs, 1401.00 by overwriting and 15 times of this sum was shown to be Rs, 21,024.69. A note was also given at the foot of the said schedule to the effect that 15 times of the net profits as calculated fell short of the sum of Rs, 25,000 and therefore no court-fee was leviable. Written statement was filed by the respondent-defendant on 15-11-1980 raising a specific plea that the suit had intentionally been undervalued and the schedule of net profits attached to the plaint had intentionally and advisedly been got wrongly prepared and no court-fees had been paid on the suit although value of suit far exceeded the sum of Rs, 25,000 and it was necessary for the plaintiff to pay court-fees on the plaint. It was further alleged in the written statement that now the limitation for making good the deficiency in the court-fees had already expired and the suit had become barred by time and plaint of the suit was liable to be rejected under Order VII, rule 11, C. P. C. In proof of the said objection, the respondent filed a schedule of net profits got prepared by him from the. Office Qanungo Tehsil Hasilpur on an application filed by him before the Tehsildar on 5-9-1980. This schedule was prepared on 6-11-1980 and the total net income calculated was Rs, 9901.64 and in it the share of the landlord was found to be a sum of Rs, 49,50.82 and its 15 times was shown to be a sum of Rs, 74,262.30. In his interlocutory order dated 24-1-1981, the Civil Judge took note of the circumstance that no court fee had been paid on this suit and both the parties had submitted their schedules of the net profits and in the schedule of net profits filed by the appellant-plaintiff the share of the owner was shown to be 1/3rd while the stand of the respondent was that the share of the owner was 1/2 and 15 times of the same far exceeded the sum of Rs, 25,000. As a result of these contradictory positions he fixed the case for arguments.
Subsequently after having earlier heard arguments, the Civil Judge by his interlocutory order dated 25-2-1981, said that the schedule of net profits filed (by the appellant-plaintiff) in the court is not legally correct and directed that for the correct decision of the case, statement of net profits prepared by Office Lanugo should be filed before 12-3-1981 and case be put up on that date for orders. It appears that on said next date of hearing, the appellant plaintiff filed two schedules. This is shown by list dated 11-3-1981 in respect of documents produced by appellant plaintiff on 12-3- 1981. On the back of this list, there is an endorsement of official of the court of the said documents having been received on 12-3-1981. One schedule mentioned in the said list is dated 9-3-1981 and is shown to have been prepared by Haji Allah Wasaya, a petition writer of Hasilpur, which evinces the total income to be Rs, 8397.12, tenant's share to be Rs, 4,198.56 and share of owner to be Rs, 4198.56 and after deduction of a sum of Rs,200 as expenses of Biaie and Abiana of two crops, the net profits to be Rs, 3,998.56 and 15 times of the same to be Rs, 59,978.40. This schedule contains a court-fee stamp of Rs, 1.00 dated 12-3-1981 in the name of Muhammad Saleem appellant-plaintiff affixed thereon. The other schedule submitted by appellant-plaintiff was one got prepared by him from the Office Qanungo on 12-3-1981 in accordance with order dated 25-2-1981 of the court. According to that schedule, the total income of land was determined to be Rs, 9,460.37 and share of owner was shown to be Rs, 4,730.18 and 15 times of which was shown to be Rs, 70,952.70. On the said schedule also, adhesive court-fee stamp of Rs, 1.00 dated 12-3-1981 in the name of Muhammad Saleem appellant-plaintiff stands affixed.
' It appears that on 25-2-1981 appellant-plaintiff had filed an application that schedule of net profits submitted by him for determination of court-fees had been got prepared by him bona fide and in good faith and schedule got prepared by respondent-defendant was also full of mistakes (enumerated in the application) and that he (appellant-plaintiff) had under misconception considered sugarcane crop to be chahi while actually it was nehri and if there is any error in the preparation of the schedule, it was inadvertent and that a new schedule be got prepared from Office Qanungo under the order of the court and if any court-fee is found to be deficient in accordance with the said new schedule, the deficiency be got made good from him as he was prepared to pay additional court-fee. The learned Civil Judge by his order dated 25-2-1981 passed on the said application had directed that a reply to the said applicaion be submitted by respondent-defendant on the next date of hearing namely 12-3-1981. The said reply was however filed by the respondent on 25-6-1981 controverting the pleas taken in this application and resisting the prayer for getting a new statement of net profits prepared under the order of the court. On the said date namely 26-5-1981, an application was filed by respondent under Order VII, rule 11, C. P. C.
For rejection of the plaint on the ground that the appellant-plaintiff had mala fide either on account of positive negligence or cunningly under assessed the value of the suit for purpose of court-fee and the said valuation in no circumstance fell short of the sum of Rs, 74,262.30 on which substantial court-fee was necessary while the appellant-plaintiff had paid absolutely no court-fee on the suit within the limitation period of one year and no permission in the circumstances could be granted to him to make up the deficiency in the court-fees and the suit having become barred by time, the plaint was liable to be rejected under said Order VII, rule 11; C. P. C. A reply to this application was filed by the appellant-plaintiff on 29-6-1981 on the ground that he was prepared to pay the deficient court-fee but no order determining the court-fee nor any order for paying the same had yet been passed by the court.
3. On 27-9-1981, when appellant-plaintiff's application for getting a schedule of net profits prepared under the order of the court and application of respondent-defendant under Order VII, rule 11, C. P.
C. For rejection of the plaint came up for hearing before the Civil Judge, the counsel for respondent defendant made a statement that without prejudice to rights of respondent-defendant, he had no objection to the preparation of a new schedule of net profits under the order of the court and his application under Order VII, rule 11, C. P. C. May not be decided till the receipt of the said new schedule of net profits. Accordingly on the same day, the learned Civil Judge recorded an interlocutory order saying that in 'accordance with statement of the counsel for the defendant' it was not proper to decide the application under Order VII, rule 11, C. P. C. At this stage and that it would be decided after the determination of net profits. By the same order he appointed Office Qanungo Tehsil Hasilpur as Local Commissioner and directed him to prepare a schedule of net profits which accrued from said land during Kharif 1979 and Rabi, 1980.
' This schedule was prepared on 18-11-1981 and was filed in the court on 19-11-1981. According to this statement of net profits, the total income was determined by the Office Qanungo to be Rs, 9460.37, tenant's half share was shown to be Rs, 4,730.18 and owner's half share was shown to be Rs, 4,730.18 and 15 times of which was calculated to be Rs, 70952.50. By the interlocutory order dated 19-11-1981, objections were invited from parties to the suit on this report of Office Qanungo Tehsil Hasilpur. On 12-12-1981, the counsel for the respondent-defendant made a statement that he had no objection to make against the report of the Local Commissioner. The appellant-plaintiff, filed objections to the said report of the Local Commissioner on. 20-12-1981 and the learned Civil Judge adjourned the case for hearing arguments on the said objections.
4. It is necessary to point out here that on 25-2.1981, an application under section 149, C. P. C. Had also been filed by appellant-plaintiff stating that inadvertently he had not been able to fix correct valuation of his suit and now he had realized his mistake and praying that permission be now granted to him to fix correct valuation of the suit and to make up the deficiency in the court-fee.
However, later on, on 13-3-1982, the learned counsel for the appellant-plaintiff had made a statement withdrawing the said application and praying that the same be dismissed as withdrawn. Accordingly the learned Civil Judge had, by his order dated 13-3-1982, dismissed the said application as withdrawn. Therefore, when the learned Civil Judge heard arguments on 13-3- 1982, the only matters before him were the application of respondent-defendant under Order VII, rule 11, C. P. C. And the application dated 25-2-1981 of appellant-plaintiff for permission to make up the deficiency in court-fee in accordance with statement of net profits prepared by the Local Commissioner under the order of the court and the correctness or otherwise of the statement of net profits prepared by local Commissioner in the context of objections raised thereon by appellant-plaintiff. The learned Civil Judge, heard arguments on all these matters on 13-3-1982 and by his judgment dated 16-3-1982, overruled the objection of the appellant-plaintiff to the report- cumstatement of net profts dated 18-11-1981 of Office Qanungo Hasilpur and held that sale sought to be pre-empted had been made by father of the appellant-plaintiff but he had not got schedule of net profits prepared within the limitation period of one year and had on the last day of limitation got a schedule of net profits prepared from a Munshi .Or petition writer and had not explained in the plaint as to why he had not got the schedule prepared from relevant office within limitation and came to conclusion that appellant had mala fide in order to conceal his intention for filing a pre-emption suit did not get the schedule prepared from relevant office. He further found that in the schedule of net profits filed by him alongwith the plaint at first expenses of manure etc. Shown was Rs, 3,236.52 and rate of batai to be 2/5 anti on that whatever amount of net profits were found on that basis, on that court-fee was leviable but then expenses of manure was increased to Rs, 4,236.62 and rate of batai was decreased to 1/3rd so that 15 times of net profits shall fall below the sum of Rs, 25,000 and that this conscious effort on the part of appellant-plaintiff to show lesser amount of net profits established bad faith and cunningness of appellant-plaintiff and furthermore, filing of application under section 149, C. P. C. By appellant-plaintiff on the objection raised by respondent-defendant in the written statement regarding nonpayment by appellant- plaintiff of any court-fees on the suit and schedule of net profits filed by respondent-defendant also negated good faith on the part of appellant-plaintiff. He thus came to a definite finding of fact that appellant plaintiff had in a mala fide manner got a wrong statement of net profits prepared at the time of institution of the suit in order that valuation of the suit may fall below the sum of Rs, 25,000 and had thus cunningly undervalued the suit and paid no court-fees thereon. He further held that now that limitation for the suit had expired, the appellant-plaintiff could not be granted opportunity to complete the deficiency in the court-fees, as, that would amount to putting premium on bad faith and cunningness and would also destroy the rights of respondent defendant in the land in question which had got perfected due to expiry of limitation. For coming to said finding he relied upon case of Mst. Walayat Khatoon v. Khalil Khan (1). He rejected the further plea of appellant-plaintiff that after having proceeded under section 9 of Court Fees Act, court was bound under section 10 of the same Act to grant time to the plaintiff to pay additional court-fee on the ground that in this case no court-fee at all had been paid and, therefore, obligation of giving time to pay additional court-fee laid in section 10 of the Court Fees Act was not applicable.
Accordingly by his order dated 16-3-1982, he rejected the plaint of appellant-plaintiff. This is a first appeal against said judgment and decree of the Civil Judge.
5. Neither in the memorandum of appeal nor at the hearing of the appeal, the learned counsel for the appellant has challenged that part of the judgment of the Civil Judge whereby he had rejected the objections raised by the appellant to the report-cum-statement of net profits prepared by the Office Qanungo as Local Commissioner appointed by the court. In the absence of the same, the said statement stands accepted as correct. It, therefore, stands established that the net profits of the suit land which accrued during the year previous to the date of filing the suit were Rs, 4,730.34 and their fifteen times being Rs, 70,955.14 the value of the suit for the purpose of court-fee was Rs, 70,955.10 and as held by the Civil Judge, court-fee of Rs, 5,325 was leviable thereon.
6. The learned counsel for the appellant has challenged the finding of fact of the Civil Judge that appellant had mala fide and cunningly got a wrong statement of net profits prepared at the time of institution of the suit and had intentionally undervalued the suit so that he may not have to pay any court-fee. The only argument advanced in support of this plea is that appellant-plaintiff had deposited in the court the sum of Rs, 14,0J0 as I/5th of ostensible sale price and hence there was no occasion for appellant to get prepared a wrong schedule of net profits for avoiding payment of court-fee. We are afraid we are unable to accept this argument which is wholly extraneous to the point in question. The mere fact that appellant-plaintiff subsequently deposited a sum of Rs, 14,000 as 1/5th of pre-emption price is no proof of the fact that schedule of net profits got prepared by him for assessing court-fee payable on the suit was got done bona fide. The matter has to be seen in the context of the schedule itself and the circumstances surrounding the same. The learned Civil Judge had come to a finding of positive bad faith on the part of appellant plaintiff originally on the basis of those con siderations. The learned counsel for the appellant-plaintiff, has not challenged the correctness of the- reasons advanced by the learned Civil Judge relating to those considerations which therefore remain unrebutted. We are in full agreement with those reasons.
One of the vendors of the suit land was father of appellant-plaintiff himself and land was of his own village and therefore appellant must be deemed to have knowledge of the said sale through his next friend. Sale took place on 11-4-1979. Appellant-plaintiff knew the crops sown and harvested in Kharif 1979 and by the end of March, 1980 {{FOOT NOTE}}
(1) PLD 1979 SC 821 {{FOOT NOTE}} ' position regarding the crops sown and grown in Rabi 1980 had also become clear. Girdawari had been prepared by then and there was no reason for appellant-plaintiff for not having approached the concerned official of Tebsil Hasilpur for getting schedule of net profits prepared in the end of March, 1980 or at least in the 1st week of April, 1980. Furthermore bare perusal of the schedule of net profits dated 10-4-1980 attached to the plaint shows that figures originally written, were changed so as to reduce the net profits to a figure, 15 times of which should fall below the sum of Rs, 25,000 so that the appellant-plaintiff may not have to pay any court-fee on suit. The original figures are visible under the overwritten figures. As shown earlier originally total net profits were shown to be Rs, 5,205 and rate of batal was shown to be 2/5th and therefore landlord's share was 2082 and its fifteen times could be calculated as Rs, 31230. This sum exceeded the limit of Rs, 25,000 on which under the exemption notification no court-fees was payable and therefore court-fee was leviable on it. But after increasing the expenses by a sum of Rs, 1,000 total net profits were reduced to Rs, 4,205 and rate of batal was reduced to 1/3rd and net profits falling to the share of landlord were shown to be Rs, 1,402. This was clearly a conscious effort on the part of appellant-plaintiff to show less sum of net profits and the learned Civil Judge C rightly held that this established positive mala fides on the part of the appellant-plaintiff. Besides these reasons rightly given by the Civil Judge, we think that this assessm ent of the net profits was mala fide on another ground. Suit land was 54 kanals which was all irrigated. It was mentioned in the sale-deed that sale of land was being made alongwith its means of irrigation. Girdawari, also showed that it was all irrigated. Even a man of ordinary prudence would not think that that much of irrigated land would fetch as its income, a paltry sum of Rs, 1,401 only for the whole year. The appellant-plaintiff could have visualized and should have realized that the sum of net profits being given by him was wholly inadequate and extremely unfair. In the circumstances we think that this assessment of net profits was on the face of it unreasonable and arbitrary and appellant-plaintiff inentionally undervalued the suit in question with the mala fide purpose of paying no court-fee thereon. The finding of the Civil Judge regarding positive mala fides on the part of appellant.Plaintiff is therefore unexceptionable.
7. This does not end here. Even the subsequent conduct of appellant-plaintiff on the question of payment of court-fee has appeared to us to be wholly mcda fide. As shown earlier on 12-3-1951, the appellant-plaintiff himself submitted two new schedules of net profits. One dated 9-3-1981 prepared by Haji Allah Wasaya petition-writer and another dated 12-3-1981 prepared by Office Qanungo Tehsil Hasilpur at the instance of the appellant, plaintiff himself. The first one showed the assessm ent of 15 times the net profits of the said land to be Rs, 59,987.60, and the second one showed it to be Rs, 709,52.70. These schedules clearly showed that court-fee was payable on this suit. But in spite of having filed these schedules, appellant-plaintiff neither sought permission to tender court-fee on their basis nor even showed his readiness to pay court-fee on the basis of either of the two schedules although these had been submitted in the court by appellant-plaintiff himself. He was on the other hand pressing his application dated 25-2-1981 for preparation of a fresh Goshwara under the order of the court on the sole ground that schedule dated 6-11-1980 filed by respondent defendant was also wrong wholly ignoring, that the two schedules submitted by him also showed that court-fee was payable on this suit and he had not shown his readiness to pay court-fee even on their basis. Even in his application under section 149, C. P. C. Which he later withdrew, appellant-plaintiff had not stated that he was prepared to pay court-fee on the basis of any one of the said two schedules submitted by him in the court. This clearly showed bad faith on his part. In the circumstances of the case, there was no reasonable ground for the Civil Judge to have acceded to his request for getting a new schedule prepared under his own order but then the Civil Judge went to the extreme and gave him that concession too and called for a new schedule from the Office Qanungo. However, appellant-plaintiff filed objections to that also. His failure to challenge that part of the judgment of Civil Judge which proceeds to reject those objections shows that those objections were not valid and were mere strategems or artifices to evade payment of any court-fee and had been raised with a mala fide motive to the effect that he may not have to pay any court-fee on the suit. It is therefore clear that case of appellant-plaintiff on the question of payment of court-fees suffers from mala fides even subsequent to the institution of the suit and disentitles him to any indulgence in the matter.
8. The learned Civil Judge rejected the plaint of appellant-plaintiff under Order VII, rule 11, C. P. C. On the ground that his case suffered from positive mala fides and, therefore, he could not be granted time to make good the deficiency in court-fee and his suit having become barred by law of limitation, plaint of the suit was fit to be rejected under Order VII, rule 11, C. P. C. As already stated he relied upon the case of Mst. Walayat Khatoon v. Khalil Khan (1). We think the learned Civil Judge was right in rejecting the plaint in the circumstances of this case. As observed in the order of reference made by a Division Bench of this court in case of Jagat Ram v. Misar Kharaiti Ram and another (2), the authority to grant permission to make up the deficiency in court-fee so as to validate the plaint with retrospective effect lies in section 149, C. P. C. And penalty on failure to comply with the order within the time granted lies in Order VII, rule 11, C. P. C. Appellant-plaintiff had however withdrawn the application under section 149, C. P. C. Filed by him and there being no prayer now in that behalf, there was no occasion for Civil Judge to exercise his discretionary power under section 149, C. P. C. To grant permission to appellant-plaintiff to make up the dificiency in court-fee There was no application by him under section 28 of the Court Fees Act also. Even otherwise, in the context of section 149, C. P. C. Which obviously has a greater scope than section 28 of the Court Fees Act, this court had in case of Jagat Rain v. Misar Kharaiti Ram and another by implication held that discretion under it should not be exercised in favour of litigant in cases of positive mala fides and contumacy and later their Lordships of the Supreme Court have in case of Abdul Sattar Khan and another v. Hafiz Muhammad Bakhsh and another (3), expressly laid down authoritatively that the principle of giving an opportunity for making good the deficiency in court- fee is applicable to a case of bona fide mistake or where for good reason, proper court-fee had not been paid and that the said principle cannot be extended to case of a party guilty of contumacy or positive mala fides. The findin in the present case being that appellant-plaintiff deliberately undervalued the suit to evade payment of court-fee and was guilty of positive mala fides, his case is hit by the above dictum of law too. The Civil Judge had rightl declined to give permission to appellant-plaintiff to make good the deficient in court-fee and had rightly rejected his plaint under Order VII, rule 11(d), C. P. C. As one barred by law of limitation. . {{FOOT NOTE}}
(1) PLD 1979 SC 821 (2) AIR 1938 Lah. 301
(3) 1979 SCMR 243 {{FOOT NOTE}}
9. Faced with this situation, the learned counsel for the appellant-plaintiff has next contended that in his application dated 25-2-1981 for getting schedule of net profits prepared under its own order, the learned Civil Judge had acted under section 9 of Court Fees Act and appointed Office Qanungo as Local Commissioner to ascertain the net profits of the suit land and having done so he was bound under later part of subsection (1) of section 10 of Court Fees Act to grant time to appellant-plaintiff to pay the court-fee on the basis of report submitted by Local Commissioner and had no other alternative and, therefore, the order of rejection of the plaint under Order VII, rule 11, C. P. C. Is illegal.
10. For proper understanding of this point, it is necessary to quote full text of sections 9 and 10 of Court Fees Act. The same are given below:- "9. Power to ascertain net profits or market value.-If the court sees reason to think that the annual net profits or the market value of any such land, house or garden as is mentioned in section 7, paragraphs 5 and 6, have or has been wrongly estimated, the court may, for the purpose of computing the fee payable in any suit therein mentioned, issue a commission to any proper person directing him to make such local or other invesiigation as may be necessary, and to report thereon to the court.
10. Procedure where net profits or market value wrongly estimated.-(i) If in the result of any such investigation the court finds that the net profits or market-value have or has been wrongly estimated, the court, if the estimation has been excessive, may in its discretion refund the excess paid as such fee but, if the estimation has been insufficient, the court shall require the plaintiff to pay so much additional fee as would have been payable had the said market-value or net profits been rightly estimated.
(ii) In such case the suit shall he stayed until the additional fee is paid. If the additional fee is not paid within such time as the court shall fix, the suit shall be dismissed."
11. The aforementioned plea, however, in or opinion, is based on misapprehension of scope and true import of the said sections. The said two sections 10 and 11 are meant for the protection of fiscal interests of the State and not for protection of a litigant against ill effects of his having paid in court-fees on a suit without a sufficient cause. The plain meaning of sections 9 and 10 read together is that if a court suspects that assessment of net profits is wrong it may appoint a local commissioner to make a report on the matter and if report shows that net profits were under- assessed, the court shall compel the plaintiff to rectify the incorrect valuation and make up the deficiency in court-fee. In these sections, no right appears to have been bestowed upon a plaintiff to get an opportunity to pay court fee on an unstamped plaint or make up the deficiency in court- fee after the expiry of limitation. The word 'require' used in later part of section 10(1) has been used in the sense of duty of the court to ensue collection of revenue of the State and to keep guard over its evasion. Th words 'the court' shall require the plaintiff to pay so much additional fee a would have been payable, had the said net profits been rightly estimated do not by themselves mean that court has been given a power to give opportunity to defaulting plaintiff necessarily to pay court-fee or complete the deficiency in court-fee even though limitation has passed, for, the matter then does not remain confined to a question between court and a party, as, by then, another person namely defendant whose rights had got perfected due to expiry of period of limitation has now come in the field. The question as to when court will require (and thus give an opportunity to) the defaulting plaintiff to pay court-fees on an unstamped plaint or make up the deficiency in court-fees on insufficiently stamped plaint so as to validate the said plaint with effect from date of its presentation shall have to be decided in the light of provisions of law which are relevant in this context. For that situation there are two provisions made in the entirety of statutory law. One is second paragraph of section 28 of Court Fees Act and the other is section 149, C. P. C.
The said two provisions are quoted below in extensor:- Court Fees Act: "28. Stamping documents inadvertently received.-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."
"149, C. P. C. Power to make up deficiency of court-fees.-Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court-fees has not been paid the court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such court-fee and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance."
In or opinion in the event of the case not being fit for exercise of power by the court under either of the said two provisions, the court cannot, merely in exercise of powers under later part of subsection (1) of section '10 of Court Fees Act require the defending plaintiff to pay court-fee on unstamped plaint or make up the deficiency in the court-fee with the consequence of validating the plaint with retrospective effect. It will be seen that section 149, C. P. C. And 2nd paragraph of section 28 of Court Fees Act are similar in their functions and authorize the court t permit a defaulting plaintiff either to make up the deficiency in court-fe or to pay court-fee on wholly unstamped plaint. The exercise of power unde both the provisions is however discretionary and this object has been Ii achieved by the Legislature by using the word may in both the provisions and qualifying the word 'may' with the words 'in its discretion' in section 149, C. P. C. And with the words 'if it thinks fit' in section 28 of Court Fee Act.
12. Now it is settled law that discretion to grant permission to affix court-fee on wholly unstamped plaint or to make deficiency in the court-fees cannot be allowed to a litigant whose conduct in filing such a plaint suffers from positive mala fides. Therefore, on findings of mala fides arrived at by the court, permission could not have been granted to appellant-plaintiff under either of two provisions. As a consequence of the sale the court could not have under later part of subsection (1) of section 10 of Court Fees Act required the appellant-plaintiff to pay the court-fee on the unstamped plaint so as to validate the plaint with effect from date of its presentation.
13. Here, however, it is contended that rule that litigant whose conduct suffered from positive mala fides could not be allowed the discretionary relief of paying Court Fees on unstamped plaint, had been laid down in cases under section 149, C. P. C. But in the present case in which unstamped plaint had been received by the Court through mistake or inadvertence, 2nd para. Of section 28 of Court Fees Act applied as it was made specifically applicable to a plaint which had been entertained by a court by an error or inadvertence. The precise argument is that there was no condition laid in 2nd paragraph of section 28 for exercise of power by Court to permit payment of court-fee except entertainment of a plaint by a Court through inadvertence or mistake and, therefore, the receipt of the paint through inadvertence of the Court, was sufficient for the Court to exercise that power in favour of appellant and hence the Court could under later part of subsection
(1) of section 10 of Court Fees Act require the appellant to pay court-fees on the unstamped plaint with the consequence of validating it with retrospective effect irrespective of its having become barred by time.
14, We are afraid we cannot accept this contention too. In or opinion section 28 does not in terms apply to the case of appellant-plaintiff as it authorizes the court to permit making up of the deficiency in court-fee and not paying the entire court-fee on an unstamped plaint as required in this case. At any rate, even assuming, section 28 of the Court Fees Act applies. In or opinion, mistake or inadvertence on the part of the court in receiving an unstamped plaint does not cover the case of mala fides on the part of plaintiff in filing an unstamped plaint and in succeeding somehow in getting it entertained. Para. 2 of section 28, no doubt says that in case of wron: entertainment by a court of an understamped plaint inadvertently, its powers under said provision can be invoked but does not enumerate the situations in which said power is to be exercised and leaves the matter again to the discretion of court which is to be exercised, only in a fit case. The question, therefore, as to whether discretion is to be exercised by the Court to permit a defaulting plaintiff to put in deficient or full court-fee must of necessity be decided on the merits of the case of that litigant in that regard and, therefore, in that situation too, the question of bona fides or mala fides of the defaulting plaintiff in fixing no court-fee or deficient court-fee will have to be seen. In final analysis, therefore, the question of bona fides of plaintiff in filing an unstamped plaint will have to be taken into consideration under all circumstances and nothing would turn on mere inadvertence of receiving such a document.
15. We are aware of the case of Hari Ram v. Akbar Hussain (1) laying down that once the court has, under inadvertence or mistake, received an insufficiently stamped plaint, the mistake becomes the mistake of the court who is bound under said 2nd para. Of section 28 of Court Fees Act to grant time. With utmost respect to the learned Judges of the said court, we are unable to follow that view of section 28 of Court Fees Act, as, in or opinion, mistake or inadvertence of the court in receiving such a plaint is not mistake or inadvertence of a defaulting plaintiff and cannot cover the default of a plaintiff in intentionally and advisedly filing an insufficiently stamped or wholly unstamped plaint in a court and discretion vesting in 2nd pal a. Of section 28 can obviously not be exercised in favor of such a plaintiffs. Therefore, the mere circumstance of unstamped or under stamped plaint having been entertained by the court under error or inadvertence is not sufficient for such a litigant to get an order automatically from court for making up deficiency in court-fee or paying the entire court-fee. A litigant {{FOOT NOTE}}
(1) 'I L R 29 All. 749 {{FOOT NOTE}} ' whose conduct suffers from positive mala fides cannot be relieved of ill-effects of his mala fides by taking cover under inadvertence of the court in entertaining in an unstamped or under stamped plaint.
16. Seen in this context, the situation when the court will require a defaulting plaintiff under later part of subsection (1) of section 10 of Court Fees Act to pay court-fee on unstamped plaint has to be found out on the principles laid down for permitting a plaintiff to make up the deficiency in court-fee or pay court-fee on unstamped plaint so as to validate the plaint with retrospective effect According to the decision of Full Bench of Lahore High Court and the decisions of Supreme Court of Pakistan cited above, a litigant guilty of positive mala fides and contumacy cannot be allowed under discretionary power of the court, an opportunity to pay court-fee on unstamped plaint or on an insufficiently stamped plaint. Therefore, or construction of later part of subsection (I) of section 10, Court Fees Act is that the obligation of the court to require a litigant to make up the deficiency in court-fee laid down in later part of subsection (1) of section 10 of L Court Fees Act so as to result in validation of the plaint with effect from date of its presentation is subject to condition that the under-estimation of net profits should be bona fide and not vitiated by positive mala fides on the part of defaulting plaintiff. In arriving at this interpretation of section 10 (1) of the Court Fees Act, we have relied upon the rule of interpretation of Statutes that a construction to be placed on a section in a statute should harmonize and be consistent with other provisions of the Act and relevant sections of other statutes which are in pari materia and should not be in conflict with the said other sections. If the word 'require' in later part of section 10 (1) is to be interpreted as an absolute duty cast upon the court isrespective of bona fides of a litigant, then section 28 of Court Fees Act (and even section 149, C. P. C.) would become redundant. That cannot, however, be the intention of the Legislature. Further in giving this interpretation of section 10 (i) of Court Fees Act we have taken note of circumstance that ever. The Chief Court of Punjab which had in case of M Saif All Khan v. Fazal Mehdi Khan and others (1) held that payment of deficiency in court-fee (required to be made good by the court under later part of subsection 10 (1) of Court Fees Act after the receipt of report of local commissioner under section 9 of Court Fees Act validated the plaint with effect from the date of presentation, had come to that conclusion inter alia on the basis of section 28 of Court Fees Act and after an express finding that there was no proof that plaintiff in that case had consciously and deliberately filed his plaint without proper court-fee and that there was no good reason for attributing bad faith to the said plaintiff. We have also taken special notice of the following words which occur in the said judgment in the context of alleged obligation of the court under later part of subsection (1) of section 10 of the Court Fees Act to require the defaulting plaintiff to make up the deficiency in court-fee : - "We have already said that there is no proof that plaintiff wilfully understamped his plaint in order to avoid payment of duty. If the court thought that payment was being evaded in bad faith, it might possibly, in a proper case, refuse to allow further payment of duty but it is difficult to see how it could have done so on the facts of this case."
17. Even in case of Babu Lal v. Asi Kunner and another (2) in which an objection of suit having become barred by time (when additional court-fee was
18. {{FOOT NOTE}}
(1) 123 P R 1907 (2) I L R 27 All. 197 {{FOOT NOTE}} ' paid under the direction of court under subsection (1) of section 10 of Court Fees Act consequent upon report of Local Commissioner appointed under section 9 of Court Fees Act) which was based solely on section 3 of Limitation Act had been rejected irrespective of section 28 of Court Fees Act, the case was expressly found to be one of bona fide mistakes on the part of plaintiff in undervaluing the property in that case. The learned counsel for the appellant has not been able to refer us to . Even one case in which a plaintiff had deliberately underestimated the net profits or advisedly undervalued the suit in which a direction under later part of subsection (1) of section 10 was held to be mandatory irrespective of mala fides of the plaintiff. In this view of section 10 of Court Fees Act, the basic finding being that appellant-plaintiff had deliberately under-estimated the net profits so that he may not have to pay any court-fee and was guilty of positive _mala fides, there is no substance in the plea that the court was under a statutory obligation to require the appellant-plaintiff to make up the deficiency in court-fee so as to validate the plaint, with effect from date of its institution. In or opinion, the court could and had rightly proceeded to see if the suit had become barred by time and had rightly rejected it under Order VII, rule 11, C. P. C. On finding that it had actually become barred by time.
18. There is another circumstance of almost decisive importance du to which the order of court below declining to make an order under later part of subsection (1) of section 10 of Court Fees Act requiring appellant to make up deficiency in court-fee and rejecting the plaint under Order VII, rule 11, C. P. C. Must be held to be good. That circumstance was that apart from schedule of net profits dated 6-11-1980, submitted by respondent-defendant along with his written statement, there were two schedules submitted b appellant-plaintiff himself which clearly showed that the appellant- plaintiff had deliberately got prepared wrong schedule of net profits so as to make the valuation of suit fall below the sum of Rs, 25,000 and he may not have to pay any court-fee. The suit had clearly become barred by time within a day or two of the filing of the plaint. The court could therefore have proceeded to decide the application under Order VII, rule 11, filed by respondent-defendant immediately. The appellant-plaintiff was without an justification pressing for preparation of net profits under the order of court The learned counsel for the respondent-defendant had by his statement dated 27-9-1981 waived his objection against the preparation of fresh schedule N of net profits under the order of the court and against postponement of decision on his said application expressly without prejudice to respondent defendant's rights so far as his application under Order VII, rule 11, I concerned. Obviously therefore the court had deferred the decision of the application under Order VII, rule 11, C. P. C. And had made the appointment of Local Commissioner acting under procedure available to court under section 9 of Court Fees Act subject to rights of respondent- defendant. Therefore, the appointment of Local Commissioner on 27-9-1981 and his report submitted on 19-11-1981 did not affect the subsisting rights of respondent defendant to have his application under Order VII, rule 11 adjudicated irrespective of the report of local commissioner. The mere existence of large amount of difference in assessment of net profits and 15 times thereof between the one made by appellant-plaintiff and other made by local commissioner, therefore did not compel the court to proceed under subsection (I) of section 10 of. Court Fees Act and necessarily make an order for making up deficiency in court-fee. The court could well have proceeded, under Order VII, rule 11, C. P. C.
19. In view of all the above, we find no substance in this first appeal which is hereby dismissed with costs.