' The sole Arbitration appointed in Suit No, 1239 of 1980 has filed the Award under section 14 (2) of the Arbitration Act. Notices of filing of the Award were issued to the parties but only defendant has filed objections to the award.
' Mr. S. Sarwar Ali, the learned counsel for defendant has raised twofold contentions before me. It is firstly contended that the court-fee stamps paid on the plaint initially were insufficient and this deficiency in the court-fee was made up by the plaintiff after the Award, and as such on the date, proper court-fee was paid by the plaintiff the suit had already become time-barred. It is accordingly contended that the arbitrator could not decree a time-barred claim. In the second place it is contended by the learned counsel, that the findings of the learned Arbitrator that the defendant is liable to render account is based on no evidence and in any case is against the evidence on record as the plaintiff in cross-examination admitted that he is the accounting party.
In reply to the above objections of defendant the learned counsel for the plaintiff contended that the plaintiff originally filed a pauper application in which the valuation of suit was shown as Rs, 1,00,000. However, before the pauper application was heard and decided the plaintiff corrected the valuation of Suit as Rs, 51,00,000 and paid court-fee thereon and thereupon the pauper application was treated as a Suit and registered as such. It is also contended that the plaintiff for the first time came to know that the court-fee paid by him was insufficient when he was cross-examined by the defendant's counsel and immediately on coming to know this fact he applied before the Arbitrator for extension of time under section 149, C. P. C. And paid the court-fee within the time allowed by the Arbitrator. It is also contended by the learned counsel for the plaintiff that there was ample evidence before the arbitrator to show that defendant was liable to account for the income of partnership.
2. From the proceedings it is quite clear that the plaintiff originally filed application in forma pauperis in which the valuation of the suit was disclosed as Rs, 1,00,000. However, on 14th February, 1980 he corrected the valuation of suit in the application as Rs, 51,00,000 and on the same day affixed court-fee stamps of Rs, 1,302. Upon payment of the court-fee the application was converted into suit and was registered as such and summons were issued to the defendant. No objections as to the valuation of the suit or insufficiency of court-fee on the plaint were raised in the written statement. However, when the plaintiff was examined before the Arbitrator he was asked several questions with regard to payment of court-fees and he admitted that the court-fees paid on the suit was insufficient. It appears that at that stage the counsel for the plaintiff realised that the court-fees of Rs, 1,302 paid on the plaint was not sufficient and consequently be filed an application before the Arbitrator for permission to pay the deficit court-fees under section 149, C. P. C. The explanation given by the plaintiff before the Arbitrator was, that when he affixed the court-fees of Rs, 1,302 on the plaint the office raised no objection regarding unsufficiency of court-fee and he was under a bona fide impression that court-fee paid by him is proper. The learned Arbitrator upon consideration of these allegations permitted the plaintiff to pay the court-fee which has been paid within the time allowed by the Arbitrator. The learned counsel for the defendant contends that the court-fee was deliberately paid less and, therefore, the plaintiff is not entitled to extension of time for payment of court-fee. The learned counsel relied on the case of Abdul Sattar v. Muhammad Bux
(1) to contend that if a party is guilty of contumacy or positive mala fide, he is not entitled to the benefits of section 149, C. P. C. However, the case cited by the learned counsel is.Not applicable in the circumstances of the present case. In that case, it was found by the Court that the appellant had deliberately mentioned a wrong valuation in order to avoid payment of the court-fee. In the case before me, the valuation is correctly shown in the plaint but the court-fee paid was insufficient. The explanation offered by the plaintiff before the Arbitrator was that he bona fidely believed that the court-fee paid by him was sufficient, which was rightly accepted by the Arbitrator in the circumstances of the case, as it is an admitted position that upon payment of court-fee of Rs, 1,302 the plaint was registered by the office as a regular suit without raising any objection as to the insufficiency of the court-fee. Apart from it, the defendant also raised no such objection in his written statement. It was only when the plaintiff was cross-examined before the Arbitrator that he was asked questions with regard to payment of court-fee on the plaint and then it transpired that the court-fee paid on the plaint was insufficient. The plaintiff immediately applied to the Arbitrator for payment of court-fee
(1) 1979 SCM R 243 ' which was allowed and he paid deficit fee. From the above-noted conduct of the plaintiff no contumacy or mala fide can be alleged against him so as to disentitle him to the extension of time under section 145, C. P. C. It is not disputed that the Court has sufficient power to extend the time for payment of court-fee even in case where the limitation has expired. In the case before me I find that the jurisdiction exercised by the Arbitrator in allowing the plaintiff to pay the deficit court-fee is based on sound principle. I accordingly overrule the first objection.
3. On merits the only contention of the learned counsel for the defendant is that the plaintiff having admitted in his cross-examination that he is the accounting party, the Arbitrator could not hold contrary in the award and direct for taking of account from the defendant. In order to fully appreciate the contention of the learned counsel I will reproduce here the relevant question and the answer thereof by the plaintiff which are as follows :- "Q. I put it to you that on account of your duties in the Partnership Deed Exh. 6 and on account of your admission that you alone operated the Account No, 4387, you are the Accounting Party.
A. I am the Accounting Partner again says that I did not follow the question. The fact of the matter is that as per terms of the Partnership Deed Exh. 6 it was the duty of the defendant to maintain Account."
4. The learned counsel relied on the above admission of the plaintiff in his cross-examination and contended that the award is contrary to the evidence on record. I may mentioned here that as many as 12 issues were framed before the Arbitrator and on all the issues the learned Arbitrator has given his findings. Issues Nos. 5 and 9 were dealt together while discussing these issues the learned Arbitrator reached the conclusion that the defendant is liable to render account to the plaintiff. In arriving, at this conclusion the Arbitrator relied upon the admission of the defendant in his cross-examination that be received several cheques from Pak Navy and he deposited the same in his personal account. The Arbitrator was fully entitled to appraise the evidence in the case and this Court while hearing objection to the Court can only interfere with such appraisal of evidence by the Arbitrator, if it is found that it was based on a perverse approach. The fact that another view of the evidence is possible is no ground for interfering with the finding of facts arrived at by the Arbitrator. After going through the evidence on record I find that there was ample evidence before the Arbitrator to show that the defendant was liable to render account. At the time the defendant entered into the agreement of partnership with the plaintiff he was operating several accounts. It is admitted by the defendant that during the period, the partnership subsisted, he received payment in respect of several transactions but he did not deposit these cheques in the partnership account and instead he credited it in his own account. The learned counsel for the defendant attempted the argue that the payments received by defendant during the continuance of the partnership did not relate to partnership, business. The learned Arbitrator has considered all these aspects and after considering the same reached the conclusion that the defendant is liable to render account to the plaintiff. The findings of the learned Arbitrator on issues Nos. 5 and 9 are neither perverse nor can be described as one based on no evidence at all.
' I am, therefore, of the view that no case of interference has been made out. The objections under section 30 of the Arbitration Act are dismissed. The Award is made rule of the Court. Decree to follow accordingly.