' This judgment will dispose of the two civil revisions petitions (C.R. 18/81and C.R. 19/81) as the questions of fact and law arising in these revisions are one and the same.
2. The fact relevant for the disposal of the revision petitions are that Barkat Ali and Altaf Ullah filed two suits to pre-empt the land measuring 163 Kanals 8 Marlas purchased by Khan Muhammad defendant-petitioner from Mst. Nishat Afza and Mst. Shifat Ara though decree of Civil Court, Wazirabad, dated 4th December, 1973. Barkat Ali filed the suit on 3rd December, 1974 by affixing court-fee of the value of Rs, 1,600 only with the assertion that Rs, 20,600 being 15 times of Annual Net Profits was the value for the purposes of court-fee and jurisdiction. Altaf Ullah filed the suit on 18th January, 1975 by affixing court-fee of Rs, 375 only on the plaint asserting that Rs, 4,920 was the value for the purposes of court-fee and jurisdiction. In the suit of Barkat Ali, Ahlmad of the Court reported that the court-fee fixed appears to be prima facie deficient. In the suit of Altaf Ullah, the report made was that the court-fee was correctly fixed and paid. The trial Court directed Barkat Ali plaintiff-respondent vide order, dated 4th December, 1974 to make good the deficiency of Rs, 237 in the court-fee by 18th January, 1975. In the other suit the trial Court directed Altaf Ullah plaintiff- respondent to make good the deficiency of Rs, 1,455 in the court-fee by 8th March, 1975. The respondents-plaintiffs in both the suits made good the deficiency in compliance with the aforesaid orders before the date fixed by the trial Court. It is pertinent to note that these orders were passed while directing issuance of summons to Khan Muhammad defendant-petitioner. He, in the written statements filed by him raised the objection regarding insufficiency of the court-fee paid. Both the suits were consolidated and besides issues on merits, one issue relating to the court-fee was framed in the fallowing terms : {{URDU TEXT}} ' The parties produced evidence and the arguments were also heard and the suits were fixed for judgment for 26th April, 1980. The arguments were again heard on 30th April, 1980 and the suits were fixed for 5th May, 1980 for judgment but were adjourned to 6th May, 1980 as the judgment had not been written by then. On the adjourned date, the trial Court passed the order as under : {{URDU TEXT}} ' On the next date of hearing i,e, 21st May, 1980 Khan Muhammad petitioner filed an application under Order VII, rule 11, C.P.C. For rejecting the plaint and the suits were then fixed for filing reply to the application for 28th May, 1980. It appears that the plaintiff-respondents also submitted application accompanied by the statement of Annual Net Profits saying that as per the statement filed, the annual net Profits of the land in dispute is Rs, 4,050 and the deficiency in the court-fee be allowed to be made good accordingly. This application was also ordered to be heard alongwith the application filed by the petitioner under Order VII, rule 11, C.P.C. The arguments could not be heard for quite some time as the matter was adjourned on the request of either both or one of the parties. Ultimately these two applications were disposed of vide impugned order, dated 21st December, 1980 by rejecting the application of the petitioner under Order VII, rule 11, C.P.C. And accepting the application of the respondents-plaintiffs. The learned trial Court directed the respondents to make good the deficiency in the court-fee by affixing an additional court-fee of Rs, 2,820.50 on each of the plaints.
3. The order, dated 21st December, 1980 has been assailed by the defendant-petitioner in these revision petitions on the ground that the learned trial Court acted illegally and arbitrarily in allowing the plaintiffs-respondents after about six years of the institution of the suits to make _good the deficiency in the court-fee. It was argued that the conduct of the petitioner was negligent as well as contumacious as they obstinately insisted for all these years that court-fee paid by them was proper despite raising of the objection in the written statement. According to the learned counsel, in the circumstances, power and discretion vesting in the Court under section 149, C.P.C. Could not legally be exercised in favour of such a litigant and that the defence of limitation which had become available to the petitioner in the meantime cannot be allowed to be destroyed. He further submitted that 1 Kanal and 9 Marlas out of the land in dispute was ghair mumkin land but this fact was neither disclosed nor any court-fee on the market value of this land was paid. He pointed out that this fact was even not disclosed in the application for permission to make good the deficiency as the request made was that the court-fee be allowed to be paid according to the value shown in the jhar padawar which statement did not depict the said ghair mumkin'land.
4. Learned counsel for the respondents in reply argued that the conduct of the respondents was not contumacious as they paid the court-fee as was earlier ordered by the learned trial Court and that they also offered to pay court-fee according to the statement of Annual Net Profits as soon as the Court ordered the production of the said statement. Reliance was placed on Mst. Parveen v.
Mst. Jamsheda Begum and another (1). It was further argued that the revisional jurisdiction cannot be invoked and exercised in the instant case as the impugned order does not suffer from any jurisdictional defect.
5. The main argument of the learned counsel for the respondents was that in view of the provisions contained in Order VII, rule 11 (c), C.P.C. The Court is bound to give time to the plaintiff to make up the deficiency in the court-fee whatever the conduct may be, as without giving time, the plaint cannot be rejected. He further argued that the conduct of the plaintiff at this stage is not relevant as according to him, conduct i,e, bona fide mistake or recklessness, negligence or contumacy,
(I) PLD 1983 SC 227 ' becomes relevant only when there is failure to comply with the direction to supply the requisite stamp paper. According to the learned counsel, section 149, C.P.C. Applies only to a case where on the date by which the Court directs under Order VII, rule 11, C.P.C. To make good the deficiency in the court-fee, the plaintiff fails to do so. He submitted that in such a case, if the Court finds-that there are sufficient grounds for condonation of delay, the period of deposit is to be extended. He asserted that the above argument flows from the judgment of the Supreme Court in the case of Mst. Perveen.
6. I have gone through the precedent cited and have also given serious consideration to the submissions made by the lean d counsel for the parties. At the very outset, it may be stated that the precise question raised in this case neither arose in the case of Mst. Parveen nor was decided in the said judgment. The ratio decided of the judgment relied upon is contained in the following observations : "Section 3 of the Limitation Act, whereunder a suit can be dismissed, applies only if it is instituted after the period of limitation. It is not the case of the appellant that as visualized by the explanation to section 3 of the Limitation Act, the plaint was presented, not to the proper officer, or after the expiry of limitation. And if it was presented properly before a proper officer prior to the expiry of period of limitation then the relevant provisions for consideration would be Order VII, rule 11, section 149, C.P.C. And in some cases section 148, C.P.C. As also section 10(ii) of the Court Fees Act where under the suit can be dismissed for non-compliance with the order of the Court for supply of the requisite fee and not on the ground that for the same reasons it had become time-barred. The two conditions would be totally different."
' The other important observations recorded are : "It may also be observed that the learned trial Judge could not have rejected the plaint under Order VII, rule 11, C.P.C. On the mere discovery that the claim was under-valued, unless under clause
(b) of rule 11, the plaintiffs having been required by the Court to correct the valuation within a time specified by the Court, had failed to do so. Similarly, regarding insufficiency of court-fee, the plaint could be rejected under clause (c) of rule 11, if the plaintiffs, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, failed to do so. In both these eventualities the plaint could have been rejected under Order VII, rule 11, C.P.C. And it would not have been proper, without recourse to this provision, to dismiss the suit as time-barred. It could not be said that if the suit was within time on the day the plaint was duly presented, it became time-barred simply because the plaint could be rejected under clause (b) or (c) or for that matter clause (a) or (d) of rule 11 (after the period of limitation) for the reason mentioned in the said clauses ; the suit could not be dismissed on the ground of limitation merely because the plaint when originally otherwise duly presented in a Court, was not correctly stamped."
' From these observations, the argument that section 149, C. P. C. Applies only when the time was allowed to make good the deficiency in the court-fee by the date fixed and such an order was not complied with does not follow as the principle that was enunciated is that if a plaint was presented properly before a proper officer prior to the period of limitation, then the relevant provisions for consideration would be Order VII, rule 11, section 149 and in some cases section 148, C.P.C. As also section 10 (ii) of the Court Fees Act. Moreover, the scope and application of section 149, C.P.C.
Cannot be limited in view of the very provisions of section 149, the Scheme of the Civil Procedure Code and section 28 of the Court Fees Act. Section 28, Court Fees Act and section 149, C.P.C. Are reproduced Weed for ready reference; " Section 28, Court Fees Act. 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.
' 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 thereto, shall be as valid as if it had been properly stamped in the first instance.
" Section 149, C. P. C. Power to make up deficiency of court-fee.- 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."
It follows from these provisions that the institution of a suit or other proceeding or presentation of document will not be a legal institution or A presentation if the fee chargeable under the law is not paid at the time ofi such institution or presentation. It is also well-settled that the provisions of Court Fees Act are not intended to arm a litigant with a weapon of technicality against opponent and these sections enact an exception to the B above-stated rule. There is nothing in sections 149, C.P.C. To support the plea that these provisions apply only when an order directing payment of requisite court-fee has been passed and that direction has remained uncompleted with. To my mind, the power and the discretion to order payment of requisite court-fee is conferred on the Court by these sections and this power is exercisable at any stage. The exercise of this power which is though discretionary cannot be limited by reference to rule 11 of Order VII, C.P.C. This order is contained in the First Schedule of the c C.P.C. And as per section 121, C.P.C. The rules contained in the First Schedule shall have effect as if enacted in the body of the Code until altered or annulled in accordance with the provisions of Part X of the Code. The rules though have statutory force yet cannot be interpreted to be limiting or restricting the meaning or operation of the provisions contained in the body of the Code. The arrangement of the Code into "the body of the Code" and "Rules" is for the purpose of giving the match needed elasticity to judicial procedure and to enable minor defects to be remedied as they arise, without resort to the Legislature. The Legislature by enacting rules has supplied the details of procedure so as to achieve the Scheme contained in the body of the Code. Now coming to rule 11 of Order VII, C.P.C. It is to be noted that the words used are "on being required", so the question arises under what power and under which provision the Court may require the plaintiff to supply the requisite' stamp paper. The power inviolable under rule 11(c) of Order VII is provided by section 149, C.P.C. Section 28 and section 10(ii), Court Fees Act. E The power vesting in a Court under these sections is discretionary and, as such, the considerations such as bona fide mistake, inadvertence, lack of due care, negligence and contumacious conduct become relevant. It is also to be kept in view that though law favours adjudication of causes on merit yet it is the primary duty of a litigant to pay proper court-fee at P the time of institution of a suit. It is equally true that the provision relating to court-fee contained in the Statute are not intended to augment the revenues of the State but at the same time so long as these provisions exist on the Statute Book, it cannot be held that the deliberate effort to avoid payment of proper court-fee or payment of deficient court-fee acting recklessly without due care and caution is to he ignored especially when it will have the effect of defeating the rights which have come to vest in the meanwhile in the opposite-party. For all these reasons, I have no hesitation in repelling the arguments of the learned counsel for the respondents.
7. The relevant provisions for consideration would be Order VII, rule 11(c), C.P.C. Section 149, C.P.C.
And in some cases section 148, C.P.C. As also section 10 (ii) and section 28, Court Fees Act. It is further held that the Court is not bound in every case to require the plaintiff to make good the deficiency in the court-fee regardless of the conduct or the cause for non-supply of the requisite court-fee at the time of instituting the suit. The discretion to require the plaintiff to supply the requisite stamp paper is to be exercised as a matter of course where the cause of action still subsists or no right or defence of limitation has yet accrued to the opponent. But in those cases where the effect of the order would be to destroy accrued right or plea of limitation by validating the plaint which was otherwise invalid in law, the discretion is to be exercised keeping in mind the well settled principles. In such a situation, mistake, inadvertence, good faith, lack of due care and caution, negligence, indolent conduct are some of the relevant considerations for the exercise of discretion by the Court. If on the basis of relevant considerations the Court comes to the conclusion that a plaintiff is not entitled to the exercise of discretion then the plaint will be an invalid document and the suit being incompetent in law and the plaint being no plaint in law cannot be proceeded with. If in a case a plaintiff is found entitled to the exercise of discretion in his favour then the Court is bound to require him to supply the requisite stamp paper by allowing time and the plaint cannot be rejected without grant of time in this behalf. Further extension of time can also be granted on showing good and sufficient cause. Without adopting this course it would not be proper to dismiss the suit as , time-barred. Commenting with regard to such a situation it was observed by the learned Judges of the Supreme Court that it could not be said that if the suit was within time on the day the plaint was duly presented it became time-barred 'simply because the plaint could be rejected under clause (b) or (c) or for that matter clause (a) or (d) of rule 11 after the period of limitation for the reasons mentioned in the said clauses ; the suit could not be dismissed on the ground of limitation merely because the plaint when originally otherwise duly presented in a Court was not correctly stamped.
8. Even on facts, the Supreme Court case of Mst. Parveen is distinguishable. It is pertinent to note that in this precedent the order passed respecting the question of valuation and court-fee by the trial Court was not challenged in the appeal filed and also there was no finding that the act in fixing the value at Rs, 25,000 was contumacious. It will be noticed that the conduct of the plaintiff was accepted as not contumacious by the learned Judges of the Supreme Court and only after noting the above-stated two facts, it was observed that the mere fact that the value was enhanced by the learned trial Judge after due inquiry will not render the act contumacious and that the fact that entries in the registered deed of the sale price was one of the considerations for enhancing the value will not make any difference in this behalf. As against this in the case in hand the learned trial Court on institution of the plaint considered the question whether the court-fee paid was proper or not and then in the absence of the petitioner-defendant allowed the plaintiff to make good the deficiency in the court-fee. This order was admittedly complied with and the court-fee as ordered was affixed. This order has to be taken to have been passed under Order VII, rule 11, C.P.C. It is another thing that this order was passed at random without asking the plaintiffs in the two suits to file a copy of the statement of annual net profits. This order having been passed at the back of the petitioner was not binding on him and he had every right to raise the issue of deficiency in the court-fee which he did raise by taking the objection in the written statements filed by him. In this context the conduct of the respondents-plaintiffs becomes relevant. The plaintiffs admittedly did not obtain a copy of the statements of annual net profits from the Revenue Authorities and, as such, did not file any such statement alongwith the plaint. They fixed the value of the suit for purposes of court-fee on the basis of their own estimation, and if the value so fixed by them without due care and caution is ultimately found to be incorrect then none else but they themselves must be held responsible for the consequences. Moreover, they insisted on their stand despite the objection raised and contested the suit for almost 6 years. The onus of the issue was also initially to be discharged by them. The respondents-plaintiffs also did not pay court-fee on the market value of the ghair mumkin land measuring 1 Kanal 9 Marlas. This was neither disclosed in the application submitted under section 151, C.P.C. Nor did they offer to pay the court-fee on the market value of the said ghair mumkin land. The conduct as such was not only obstinate but was also negligent and actuated by mala fide. The trial Court had passed an order allowing time to the respondents to affix additional court-fee but admittedly the court-fee paid including the additional court-fee is deficient. The respondents cannot set up those orders of the trial Court by saying that the Court failed to assess the correct valuation and to order payment of correct court-fee as the said orders were obtained at the back of the petitioner and was passed on the basis of the representation then made by the respondents themselves. Moreover, the respondents in the application submitted by them failed to furnish any sufficient reason for not affixing the proper and full court-fee at the time of the institution of the suits. The only plea taken by them was that they had supplied the court-fee as ordered and if the permission to make good the deficiency is not granted they will suffer irreparable loss. This hardly explains reason for not paying the proper court-fee at the time of institution of the suit or within the period of limitation. It is also well-settled that a party cannot be allowed to suffer from an act of the Court and in the circumstances of this case the respondents cannot be absolved of their initial responsibility to pay proper and full court- fee at the proper time. The power and discretion was thus exercised by the learned trial Court with material irregularity. The revisional jurisdiction for the purpose of correcting the arbitrary exercise of jurisdiction is fully attracted in the circumstances of this case.
9. In the facts and circumstances of this case, the respondents could not be required to make good the deficiency in exercise of the discretionary powers and resultantly the plaints as filed being deficiently stamped were incompetent. The suits thus filed were not competently constituted and were liable to be dismissed as such.
10. The result of the above discussion is that accepting the revision petitions, the impugned orders are set aside with the effect that the suits filed by the respondents stand dismissed as incompetently constituted. The additional court-fee of Rs, 2,820.50 deposited by each of the plaintiffs-respondents shall be refunded to them. There is, however, no order as to costs.