1. ' Petition in revision at the instance of the plaintiff, is against order, dated 5-1-1985 of learned District Judge, Leiah, passed in civil appeal No, 357/13, dated 29-9-1984 whereby he dismissed the appeal on the ground that it was deficiently stamped.
2. ' Matter arose thus : Land in dispute measuring 254 Kanals 16 Marlas was owned by Sharif Ahmad and others who vide Deed of Sale registered on 29-3-1981 sold it to Riaz Ahmad and Mukhtar Ahmad for an ostensible sale price of Rs, 28,000. Bahadur Sher in assertion of prior right of purchase brought a suit for pre-emption against the aforenoted two vendees in the civil Court at Leiah on 29-3-1982. In paragraph 8 of the plaint, claim for pre-emption, both for the purposes of court-fee and jurisdiction was assessed at Rs, 15 and a court-fee of Re. 1 was paid. However, it was alleged that after necessary revenue documents were available, deficit court-fee will be made up.
3. Vendees contested the suit and apart from several other objections which are neither relevant nor material for the present purpose, also objected to the sufficiency of court-fee on the plaint. Parties pleadings gave rise to the following issues :-
(1) Whether the plaintiff has got superior right of pre-emption qua the vendee-defendants 0. P. P.
(2) Whether Rs, 28,000 was fixed in good faith or actually paid as the price of the suit land ? 0. P. D.
(3) If issue No, 2 is not proved, what was the market value of the suit land when sold ? 0. P. P.
(4) Whether the suit has not been correctly valued ? 0. P. P.
(5) Whether the plaintiff has waived his right of pre-emption ?
4. O. P. D.
(6) Whether suit is bad for non-joinder of necessary parties ? 0. P. 1).
(7) Whether the defendants made expenditure on execution of sale-deed and improvement of the suit land ? If so, to what extent and effect.
0. P. D.
5. After the issues were framed, trial Court adjourned the proceedings for evidence. On 21-6-1983, learned counsel for the plaintiff produced copy of the sale-deed Exh. P. 1, copy of Khasra Girdawari Exh. P. 2, a copy of Register ficidaran Zamin Exh P. 3 and closed the plaintiff's evidence and reserved right to lead evidence in rebuttal alongwith the statement of the plaintiff to be recorded both in affirmative and in rebuttal. The suit was then adjourned for the defendants evidence. On 12-4-1984, counsel for the defendants produced sale-deed Exh. D. 1 and closed his defence. Suit then was adjourned for the plaintiff's evidence in rebuttal. On 28-6-1984, the Court invoked Order XVII, rule 3, C. P. C. Against the plaintiff, closed his evidence and dismissed his suit for want of evidence; Separate findings on issues were not recorded by the learned trial Court. Plaintiff contested the soundness of the trial Court's decision in appeal before the learned District Judge, Leiah. Appeal was instituted on 29-9-1984. On 16-12-1984, learned District Judge, Leiah directed the plaintiff- appellant to file deficit court-fee of Rs, 2,407 by 23-12-1984. On the date by which the plaintiff- appellant was directed to pay deficit court-fee, an application for extension in time was moved. It was alleged that necessary amount to purchase court-fee stamps had already been deposited in the Treasury on 23-12-1984, but the court-fee stamps were not available and the extension in time to produce court-fee stamps was prayed. This petition was resisted by the other side.
6. Consequently, vide impugned order, dated 5-1-1985 the learned District Judge, Leiah while refusing extension in time dismissed the appeal being deficiently stamped. It is in this background that the unsuccessful plaintiff has invoked revisional jurisdiction of this Court to have the impugned order set aside. Petition in revision was admitted on 7-4-1985 and has been heard today on merits in presence of the learned counsel for the parties.
7. ' Petitioners were represented by Mr. Ahmad Nawaz Qaisarani, Advocate. Malik Noor Muhammad Khan, Advocate, appeared on behalf of the respondents. It was contended for the petitioner that a sum of Rs, 2,410 to purchase court-fee stamps was deposited in Government Treasury on 23-12- 1984, the date fixed to pay deficit court-fee. Stamps were not supplied by the Treasury officials to the petitioner on the aforesaid date i. e. 23-12-1984. Petitioner, therefore, was not in fault in not bringing the court-fee stamps on the file of the Court on the date fixed. He contended that with the deposit of Rs, 2,410 the plaintiff had performed his duty and paid the amount for court-fee to the State. Petitioner cannot be made to suffer for the neglect of the Treasury officials to provide necessary court-fee stamps to him within the time fixed by the Court. In the submission of the counsel, substantial compliance with the order of the Court of appeal had been made and secondly if there was any delay in providing the court-fee stamps, it was a proper and a fit case for exercise of discretion under section 149 read with section 148 of the Code of Civil Procedure.
8. Learned counsel argued that learned District Judge had by taking too narrow and technical view of the matter, dismissed the appeal without seriously adverting to the question of exercise of discretion in favour of the appellant. In support, reliance was placed on Khawar lqbal and another v. Gnulam Rasool and 2 others (1). Shahna Khan v. Aulia Khan and others (2).
9. ' Malik Noor Muhammad, Advocate, in reply, urged that a specific direction was given to the appellant to pay deficit court-fee by 23-12-1984. There was enough time given to the appellant to move the Treasury for purchasing necessary court-fee stamps. Appellant deliberately delayed the matter till the last moment and deposited the amount on 23-12-1984. Lack of due diligence and proper vigilance on the part of the appellant pre-emptor, was rightly noticed by the District Judge in refusing extension which was a matter primarily of his discretion. Exercise of discretion regulated by proper considerations was not open to interference in revisional jurisdiction.
10. ' Having heard the counsel and examined the record, I find that the impugned order was untenable and was the result of materially irregular exercise of jurisdiction. It was not disputed that the amount was not deposited on 23-12-1984, and it was also not denied that the stamps could only be had from the Treasury.
11. ' Short point falling for consideration and decision in the case on hand is whether the Court of appeal in the circumstances narrated above could legitimately have dismissed the appeal on the ground that the deficit court-fee had not been paid by the time fixed. Facts are not in dispute.
(1) 1982 CLC 1787 (2) PLD 1984 SC 157 ' The point can be examined with reference to certain provisions of the Court Fees Act. Provisions of law that have bearing on the question are found in sections 6, 25, 26 and 27 of the Court Fees Act.
12. Section 6 says that no document of the kind specified as chargeable in first or second Schedule to the Court Fees Act should be filed, exhibited or recorded in any Court of Justice or shall be received or furnished by any public officer unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said schedules as proper for such document.
13. In terms of section 25, all fee chargeable under this Act are to be collected by stamps. Nature of stamps to be used to denote payment of court-fee chargeable under the Act can either be impressed or adhesive or partly impressed or partly adhesive as the appropriate Government in the official Gazette may from time to time point out. Government has been given power to frame rules under section 27 of the Court-Fees Act. Purpose for which the Rules can be framed are given in clauses (a) to (d) of section 27 of the afore noted Act. It was agreed that the court-fee stamps required in the case were to be provided by the Treasury alone. It seems that the stamps are the manifestation of the court-fee payable under the Act. Provisions of the Court Fees Act presupposed that the stamps required for the payment of court-fee are to be provided by the State and that sufficient arrangements exist to make the same available to litigants after the necessary amount had been paid4 by them. When the matter is looked at from this angle, it becomes evident that the appellant had done all what was in his powers to purchase the stamps. If the court-fee stamps could not be made available to him on the date he deposited the amount, it was not bis fault and he cannot be allowed to suffer on account of an act or omission of an agency over which he had no control. The main purpose of the Court Fees Act as has been pointed out several times, is to secure the revenue to the State. In this case, the purpose stand served when the money was paid to the State on 23-12-1984. Learned District Judge expected the appellant to perform miracles or at least an impossible act which was not within his control. He had performed his part of duty by depositing the amount in time. Beyond that he was not expected to do anything. It was the duty of the C Treasury officials to provide him stamps. Failure to supply the requisite fee stamps within the time fixed by the Court cannot be made the responsibility of the appellant. The conduct of the appellant was neither negligent nor contumacious. The Court, therefore, was not justified to dismiss the appeal on this ground and refuse adjudication on merits of the controversy. The view taken by me finds sufficient strength from decisions, relied upon by the petitioner i. e. 1982 CLC 1787, PLD 1984 SC 157. Their Lordships of the Supreme Court on an analogous situation arising before them, observed :- "The challan for the purchase of the court-fee stamps submitted with the application was for the proper court-fee and accordingly the amount was deposited. Unless the technical approach of the learned trial Court and with respect of the learned Single Judge in the High Court regarding the question of limitation, which as already observed was not strictly in accordance with the law, is followed, it was an amply fit case for allowing the request of the plaintiff made (amongst other provisions) under section 149, C. P. C. Failure to exercise discretion in his favour in this case was on account of misunderstanding of the legal question regarding limitation. It was liable to be corrected by the High Court. The same not having been done we allow this appeal; set aside the impugned judgments and decree and allow the plaintiff's application dated 4-4-1979 regarding supply of the court-fees with the necessary consequence that the suit as instituted on 8-3-1979 would in law be deemed to have been filed with proper fee ; with the result that the case and records thereof shall now be remitted to the learned trial Court for determination on merits."
14. In an almost identical case, this Court has also taken the same view in Writ Petition No, 637 of.
15. 1981. Facts and circumstances of the case gleaned from the record to indicate that the Court of appeal seriously erred in dismissing the appeal without allowing the appellant time to D provide necessary court-fee stamps, amount whereof had already been deposited in the Treasury on 23- 12-1984, the date fixed by the District Judge, Leiah.
16. ' Learned counsel for the respondents also raised objection to the sufficiency of court-fee payable on the civil revision in this Court. He referred to Article 12 of Schedule 1 of the Court Fees Act to contend that since the revision is against an appellate decree, it shall be liable to the same amount of court-fee as on a memorandum of appeal. Mr. Ahmad Nawaz Qaisarani, Advocate, conceded tnat in terms of the aforenoted Article, petition in revision was certainly deficiently stamped. He, however, prayed for time to pay the deficit fee. Accordingly, the petitioner is directed to pay the deficit court-fee of Rs 2407 till 10-7-1985. In case the deficiency of court-fee on civil revision is not made good by the date fixed, civil revision shall be deemed to have been rejected.
17. In the result of the foregoing discussion, petition in revision is allowed impugned order, dated 5-1- 1985 is set aside and the case is remitted to the learned District Judge, Leiah to re-admit the appeal, allow the appellant before him to provide necessary court-fee stamps till E 15-7-1985. In case, the deficit court-fee is paid within the time fixed, he shall then proceed to decide the appeal on merits. In the peculiar circumstances of this case, parties have been asked to bear their own costs. -case remanded. ....m,