' The respondent filed a suit for recovery of Rs,24,900 on the allegation that on 10th February, 1960 the appellant agreed to supply on 11th February,1960, 400 maunds of leather scrap at Rs,105 per maund for a total sum of Rs,42,000. On the same day the respondent paid the appellant Rs,23,000 in cash and the appellant executed a receipt. It was alleged in the plaint that after receiving the said deposit of Rs,23,000 the appellant pressed for the payment of full amount in advance and ultimately the respondent issued as security a .Cheque for Rs,20,000 as the respondent had no cash at that time. It was agreed that the appellant would return the said cheque after cash payment was made by the respondent after the disposal of the leather scrap. On 11th February,1960 the respondent demanded 400 maunds of leather scrap but the appellant asked him to come after two or three days. The appellant avoided delivery for a week and insisted on the payment of balance of Rs,20,000. The respondent on the other hand demanded refund of Rs,23,000 but the appellant avoided to repay it. He, therefore, served a legal notice dated 4th February,1963 and finally suit was filed on 11th February,1963.
2. The appellant filed written statement denying the claim. It pleaded that the suit as presented is not maintainable being barred by limitation. On merits it pleaded that the deal between the parties was oral and it was agreed that the delivery would be taken on 11th February,1960 against cash payment. In token of confirmation of the deal the respondent had given a Cheque No,395733, dated 10th February,1962 for Rs,20,000 on the understanding that after the delivery of the goods against cash payment the cheque would be returned to him. The respondent did not turn to take delivery on 11th February,1960 and the deal ended. The appellant did not encash the cheque. It was denied that the respondent had paid Rs,23,000 in cash. It was also denied that any receipt was executed by the appellant and the receipt filed with plaint was forged. It was averred that after about a week the respondent approached the appellant stating that he had not been able to arrange payment and requested for part delivery on credit against security of the cheque, but it was not accepted by the appellant. The learned trial Court decreed the suit. This first appeal has been filed against that judgment.
3. Mr.Nizam Ahmed the learned counsel for the appellant has stated that the plaint was presented on 11th February,1963 with a court-fee of Rs,100 only and the deficit was paid after the expiry of the period of limitation. On the basis of these facts the learned counsel for the appellant contended that the plaint was not properly presented and the court-fee stamps were not paid even when first extension was given by the Ministerial Officer, and therefore, the suit is barred by time.
4. Mr. Wajihuddin the learned counsel for the respondent has contended that the provision of Order VII, r. 11, C.P.C. Makes it obligatory on the Court to allow some time to pay the court-fee before rejecting the plaint. Relying on PLD 1970 SC 37 the learned counsel contended that Order VII, r. 11 and section 149, C.P.C. Are to be read together. He further contended that in view of PLD 1975 Kar.509 if extension is granted under section 149, C.P.C. It will relate back to the date of institution of the suit. There is no cavil with the principles enunciated by the learned counsel for the respondent, but question is whether by applying these principles the respondent's suit could be saved from the bar of limitation. The plaint was presented on the last day of limitation i,e, 11th February,1963 with a court-fee stamps of Rs,100. On 13th February,1963 the Chief Ministerial Officer raised objection requiring the respondent to pay the deficit court-fee within 15 days. On 5th March,1963 the plaint was returned and was presented with court-fee stamps of Rs,652. Objection was again raised requiring to pay the deficit court-fee within 7 days. The plaint was returned on 16th March,1963 and was represented on 18th March,1963 with proper court-fee. The plaint was admitted by the learned Civil Judge on subject to all just legal objection. This clearly indicates that the plaint was admitted but questions relating to delayed payment of court-fee and consequences arising from it were to be considered at the time of hearing and such objections were available to the appellant.
5. The exercise of discretion by the Court should be on judicial principles based on certain facts which should be pleaded or at least brought on record. In Mst.Wilayat Khatoon v. Khalil Khan PLD 1979 SC 821 which has been fairly referred by Mr.Wajihuddin it was held that: ' The Court has therefore to strike a balance between these two, and whereas at one place if should not be harsh on the plaintiffs, equally and at the same time it should not be harsh on defendants to easily take away a 'valuable defence of limitation from them. The Court must therefore in all cases apply its independent mind carefully and attend to their detailed facts and circumstances judicially and fairly. If in a case the plaintiff has been thoroughly negligent, contumacious and careless of his duty in affixing a proper court-fee he would not be entitled to any indulgence for grant of time, which was the effect of causing prejudice to a defendant or to his rights and title to a property which may have become perfect by expiry of the relevant period of limitation in the meantime."
' The discretion exercise by the learned trial Court does not seem to be based on the rule laid down by the Supreme Court. The contention that under Order VII, rule, 11 the Court is bound to grant some time for payment of deficit court-fee before taking any step on the insufficiently stamped plaint was raised and repelled in Wilayat Khatoon's case in the following manner:- "The next point to be seen is whether in all cases a Court is first bound to grant time to a plaintiff to makeup the deficiency in the court-fee under Order VII, rule 11 (c), C.P.C. Before proceeding to take any further action on an insufficiently stamped plaint. My answer is in the negative. And for this purpose I will divided suits or plaints into two categories. One category is where the plaint is filed well in time, and there is still some period of limitation left in favour of the plaintiff. In such a suit the Court is obliged and bound to grant time under Order VII, rule 11(c), C.P.C. And time granted itself should also be within the meaning period of limitation. This is a stage when the matter is solely between a subject and the State. However, if despite grant of such an opportunity the needful is not done the Court shall reject the plaint. The second category is that where on the date of grant of time the suit has already become time-barred, or where though the time was granted on a date when suit was within limitation but it was granted or extended upto a date by which the suit will become time-barred. However the matter is not confined solely between a subject and the state because in such a situation a third person namely defendant has also in the meantime due to running out of the period of limitation in his favour acquired vested right. These cases are distinguishable from the first category and are a class by themselves. These are to be regulated by sections 148 and 149 of the C.P.C. Which as is obvious authorise the Court to destroy the defence of limitation which may have become available to a defendant in the meantime. It is this category of cases in which a Court is not bound or obliged to grant time and nor is it to be granted just in routine or mechanically but by keeping in view the considerations above-mentioned."
6. It thus seems very clear that the-learned trial Court has erred in exercise of discretion and the judgment is not based on the sound legal principles governing the exercise of discretion. The respondent did note file any application giving facts and reasons necessary for condoning the delay. The entire conduct of the respondent in presenting the plaint with deficit court-fee and failing to state any valid reason justifying the delay leads to the conclusion that no extension could have been granted by the learned trial Court and the suit was barred by time.
7. Mr.Wajihuddin the learned counsel for the respondent contended that as the appellant had failed to give delivery and avoided it for quite some time the period of limitation cannot be computed from 11th February,1960. In the plaint the respondent has clearly stated that delivery was to be effected on 11th February,1960 which the appellant failed to do. Merely because the appellant had been avoiding the delivery, it does not mean that the period of limitation did not start running from the date when according to agreement the delivery was to be effected. The objection relating to limitation was raised in the written statement and an issue was framed, but the learned trial Court merely observed that the deficit court-fee was paid within the time allowed by the office, therefore, the presentation of the plaint was proper and court-fee should be deemed to have been paid on 11th February,1963. The learned trial Court discussed this issue summarily. The view taken by the learned trial Court is not correct. The Chief Ministerial Officer could not have extended the time for payment of deficit court-fee beyond the period of limitation. Reference can be made to PLD 1970 Kar.628.
8. Mr.Nizam Ahmed has relied on H.H.S. Feldman v. Government of East Pakistan PLD 1970 Kar. 295 where the following observation was made:-"It is provided under sections 4 and 6 of the Court Fees Act,1870 that no document chargeable with court-fee under that Act shall be filed, or recorded in any Court of justice, unless the court-fee payable in respect thereof is paid. The institution of a suit or appeal or the presentation of a document would not be a legal institution or presentation if the fee chargeable under the law is not paid at the time of such institution or presentation. Section 149, C.P.C. Enacts an exception to that rule by conferring a discretion on the Court to allow the party to make good the deficit court-fee at any stage of the proceedings, but the payment of fee under this section cannot be claimed 'by a party as a matter of right. It is the discretion of the Court to allow or not to allow such payment. Needless to add, that this discretion is not to be exercised arbitrarily or capriciously but judicially and with the utmost care. The reason for this caution is obvious. When an appeal is not filed in time with a proper court-fee the appeal becomes barred and the respondent gets a valuable right. The Court should not, therefore, exercise the discretion under this section to his prejudice except where sufficient grounds exist for the nonpayment of the full court- fee in the first instance.
9. Mr. Wajihuddin the learned counsel for the respondent has contended that as the trial Court has approved all the extensions granted by the office it will amount to exercise of discretion in favour of the respondent, and therefore, no exception can be taken about it. The learned trial Court has condoned the delay without taking all the relevant facts into consideration, nor it has exercised its discretion judiciously.
10. Coming to the merits of the case Mr.Nizam Ahmed the learned counsel for the appellant has contended that the respondent has failed to establish that the receipt (Exh.6) was executed by the appellant or that the appellant had paid Rs,23,000 in cash. It has been contended that the respondent had no source to pay Rs,23,000. The admitted position is that the respondent did not have this money in his bank account or with him. He has admitted that he had borrowed Rs,13,000 from Yousuf Ahmed and Rs,10,000 from his mother. He further stated that as Yousuf has died he paid the debt to his son but he has not given any receipt. Even Sultan the son of Yousuf has not been examined. Much has been debated on Exh.6 which has been denied by the appellant. The unfortunate situation in the case is that at the instance of the respondent it was referred to handwriting expert who had submitted his report stating that the disputed signature does not seem to have been made by the appellant. Thereafter in spite of the order of the Court he was not summoned. Instead, the respondent made an application under section 73 of the Evidence Act to ignore the handwriting expert's report and compare it with the admitted signature. The learned trial Court seems to have adopted this dangerous procedure for determining the genuineness of the signature of the appellant. The learned trial Court after exmaining the signature came to the conclusion that it seems to have been made by the appellant. The comparison of signature with naked eye is a risky, uncertain and dangerous mode, which should be adopted only in rare cases with great caution. If the parties had not summoned the handwriting expert there were other materials and evidence on record to give a finding. In the face of contradictory statement I would refrain from comparing the disputed signature with admitted signatures. However, a close scrutiny of the evidence shows that firstly the respondent has stated that the transaction was finalised at his shop in the presence of Abdul Majeed and Abdul Ghafoor in whose presence the receipt was executed by the appellant. Abdul Majeed has supported this statement of the respondent that he and Ghafoor were sitting on respondent's shop when the appellant came and settled the matter and executed the receipt. Abdul Ghafoor has completely denied his presence and showed complete ignorance about the transaction and execution of the receipt. Abdul Ghafoor was examined by the respondent and when he made this statement in his examination-in-Chief he was not declared hostile. His statement therefore completely contradicts the statement of the respondent and Abdul Majeed and in these circumstances it is not safe to rely on their statement.
The receipt according to the respondent was prepared by the appellant who had brought it to his shop and had executed it. A glance at the receipt shows that it contained the number of the cheque for Rs,20,000 which was issued by the respondent. If the transaction had been settled and made on 10th February,1960 and there being no evidence that the parties had some prior negotiation, then it means that everything happened on 10th February, 1963 at the respondent's shop. If the appellant had prepared the receipt before-hand and brought it with him, then how could he mention the number of the cheque which was delivered to him by the respondent at the time of the execution of the receipt. This supports the contention of the appellant that the respondent had delivered the cheque as a security for purchasing the goods which would have been delivered the next day against cash payment. The fact that the respondent did not have sufficient money in his bank account or with him in business and further that the source of money which the respondent has tried to establish is doubtful it seems logical that the cheque for Rs,20,000 was delivered to the respondent as security for the transaction and payment was to be made at the time of delivery and that no receipt was executed by the appellant. The respondent has stated that Rs,23,000 and cheque of Rs,20,000 which were delivered to the appellant were towards the full price of goods which he had purchased. According to the contract the price of 400 maunds of scrap leather Rs,105 per maund would come to Rs,42,000 and it is not known why a cheque of Rs,20,000 was given when only Rs,19,000 would have been sufficient to make-up the price of the entire goods. No explanation has been given by the respondent in this regard. Even if the cheque was given as security for payment why it was in excess of Rs,19,000. These facts clearly demonstrate that the respondent has not been able to establish that receipt was executed by the appellant and Rs,23,000 was paid to the appellant in cash.
' The appeal is therefore allowed with no order as to cost.