1. ' The petitioners through this writ petition have sought a declara tion to the effect that an order passed by respondent No. 1 on 26-9-1981 rejecting the plaint of the petitioners under Order VII, rule 11, C.P.C. in the exercise of his revisional jurisdiction, is without lawful authority and of no legal effect.
2. The facts briefly are that the petitioners instituted a suit on 10-3-1979 against respondents Nos. 2 to 6 in the Civil Court at Burewala for the specific performance of an agreement entered into by respondent No. 6 as general attorney of respondents Nos. 2 to 4 with the petitioners to sell the land measuring 9 acres and 3 Kanals situated in Chak No. 283/EB tehsil Burewala district Vehari in consideration of Rs.40,000. As alleged a sum of Rs.6,000 was passed as an earnest money and the possession was delivered to the petitioners. Since the petitioners filed the suit in a hurry the petitioners did not pay the requisite court-fee i.e. Ra.3,000. An application accompanying the plaint was made under section 148/149, C.P.C. for the extension in time. The learned Civil Judge on 10-3- 1979 allowed the extension requiring the petitioners to affix the requisite court-fee before the 11th April, 1979. The direction was not complied with. Another application was made on 12-5-1979 to seek further extension in time and on the same day the learned Civil Judge passed an order to the effect, "without prejudice the petitioners are allowed to make up the deficiency in the court-fee till 3-6-1979". The petitioners deposited the amount in the treasury on 2-6-1979 but as the stamp papers of Rs.3,000 were not available in the treasury, the same could not be supplied to the Court.
3. However, a bank challan showing the deposit of court-fee amount and bearing the verification by the treasurer about the non-availability of the stamp papers was submitted to the learned Civil Judge.
4. The respondents Nos. 2 to 4 and 6, moved an application on 29-11-1979 under Order VII, rule 11, C.P.C. for the rejection of the plaint. The learned Civil Judge observed that the petitioners were ordered to make up the deficiency in the court-fee upto 11-4-1979 but they made an application for the extension in time on 12-5-1979 on the ground that due to an inadvertent mistake the petitioners were under the impression that the date for making up the deficiency was upto 11-5-1979 and as 11th May was Friday they came to know on 12-5-1979 that the actual date was 11th April. The learned Civil Judge considering that, extended the time upto 3-8-1979. The petitioners had deposited the amount for the purchase of the stamp papers on 2-6-1979 and as the stamp papers were not available so the treasurer had verified the same fact on the challan. The learned Civil Judge was of the opinion that according to the well-settled principle the plaint could be rejected had the petitioners committed an act of contumacy. The petitioners had deposited the amount. The availability of the stamp papers was not within the reach of the petitioners. However, the non- compliance of the earlier directions could be analysed but according to him even in that regard rejection of the plaint was not due in the interest of justice. He relied upon Muhammad Sherif Khan v. Ghulam Farid and 4 others 1980 CLC 545 in which it was held, "there is ample case-law on the point that unless the plaintiff is guilty of contumacy or positive male fides the discretion in regard to the extension of time for making up the deficiency in the court-fee is to be exercised in his favour". The learned Civil Judge resultantly dismissed the application for rejection of the plaint vide his order, dated 17-4-1980.
5. The defendants/respondents filed a revision petition from the above-said order of the learned Civil Judge which came to be decided by the learned Additional District Judge, Vehari. The learned Additional District Judge while relying upon sections 25, 28 and 30 of the Court Fee Act observed that in the case the plaint was not properly stamped. That was not enough for the plaintiffs (petitioners) to deposit the money in the treasury. That was the bounden duty of the plaintiffs to pay the court-fee through stamps, so accordingly he held that the plaint did not bear the stamps as prescribed by law. He further opined that under Order VII, rule 11, C.P.C. the plaint was to be rejected where a plaint was written on a paper insufficiently stamped and the plaintiffs (petitioners) on being required by the Court to supply the requisite stamp papers failed to do so within the time as fixed by the Court. In the case the plaintiffs were liable to pay the court-fee on the entire amount 'of the sale price mentioned by them and they had failed to supply the required stamp papers till that date. He expressed that the learned Civil Judge exercised his discretion improperly while rejecting the application moved for rejection of the plaint. Consequently he rejected the plaint vide his order, dated 29-6-1981.
6. The learned counsel for the petitioners has in suppbrt of the writ petition contended that the order allowing the extension in time for making up the deficiency in the court-fee and the rejection of the application of the respondents was not a 'case decided' within the meaning of section 115, C.P.C. as such a revision petition was not competent. The discretion exercised by the learned Civil Judge could not be interfered with in revision. The learned Civil Judge had allowed to make up the deficiency in the court-fee before 3-6-1979, the limitation by that time in the main suit had not expired as the performance according to the agreement was to take place on 26-12-1976. A reference has been made to Article 113 of the Limitation Act. The application for rejection of the plaint was made after six months from the date the time was extended. Towards the making up of the deficiency the petitioners had done that which was in their power. The non-placing of the stamp papers due to non-availability could not be made as a ground for rejection of the plaint.
7. The learned counsel has relied upon Fazal Muhammad v. Muhammad Usman PLD 1970 Lah. 560, in this case the learned Judge also relied upon the ratio in S. Qasim Shah v. Mst. Beebian PLD 1962 Pesh. 156 wherein it was held that a decision on the question of court-fee given by the Court in favour of the plaintiff was not a 'case decided' within meaning of section 115, C.P.C. and therefore such a decision was not revisable unless the said decision had resulted in the subordinate Court exercising jurisdiction not vested in it or in failure to exercise jurisdiction vested in it; Sanaullah v.
8. Muhammad Akhtar and 11 others 1979 CLC 578, in this case the learned Judge while considering other aspects of the case expressed himself that he agreed that if the matter pertained only to court-fee that might not be worthwhile to allow the same to be challenged in a revision petition; Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139 in this case it has been held that section 115, C.P.C. is meant primarily for correcting errors made by the subordinate Courts in the exercise of their jurisdiction and not those which are made in their discretion, unless the discretion is found to have been exercised fancifully or arbitrarily; Malik Hidayat Ullah v. Murad Ali Khan PLD 1972 SC 69, in this case it was held that before the High Court could interfere under section 115, C.P.C. that had to be satisfied that the Court below had acted with jurisdictional defects; Mst. Fazal Begum v. Bahadur Khan and another PLD 1983 Lah. 365, it has been held in this case that it is necessary that the exercise of jurisdiction in revision be kept within the permissible limits as otherwise a right of appeal and the power to do justice in appeal is likely to suffer. The exercise of revisional power therefore by the District Court calls for greater caution especially, in those cases where the appeal against the final judgment to be rendered is also to come before the District Court; and Siddiq Khan and 2 others v. Abdul Shakoor Khan and another PLD 1984 SC 289, in this decision it had been held that it is not lawful to reject a plaint under Order VII, rule 11, C.P.C. without first granting time to the plaintiff to supply the deficient court-fee. Order VII, rule 11 is in a way a penal provision and shall be construed strictly so as not to be resorted to unless conditions for exercise of such drastic power are satisfied. In the clause relevant here namely (c), it is provided that the plaint shall be rejected thereunder only when after the grant of requisite time the plaintiff has failed to supply the required/specified court-fee. Thus, it is mandatory and obligatory for the Court to grant time under clause (c). The question of discretion does not arise.
9. And it is so whether the occasion arises at the very institution of the plaint or at a later stage When the time is granted as an obligation under Order VII, rule 11(c) it is granted nevertheless for the supply of deficient court-fee which being the main object of section 149, C.P.C., the advantage thereunder will be available to the beneficiary of the exercise of the obligation also. The further question as to why then the word 'discretion' has been used in section 149, C.P.C. cannot detain any longer. There are other occasions for the supply of court-fee stamps under the Civil Procedure Code. For example under sections 20 to 27 of the Court Fees Act read with the relevant provisions of C.P.C. require the deposit of requisite stamps for issuance of the processes. The Court might have to exercise discretion in those and other matters for allowing time in this behalf and the considerations of obligation as under Order VII, rule 11(c) would not be attracted thereto It is true that the 'documents' mentioned in various sections including sections 4 and 6 (of the Court Fees Act) cannot be filed/received unless "proper fee" is paid, therefore, section 28 is a general consequential and remedial but residuary provision in that behalf; but "proper" stamp is the subject thereof The law laid down by this Court in cases of Muhammad Nawaz Khan and Shah Nawaz would continue to hold the field and contain the law declared, notwithstanding the judgment in the case of Mst. Walayat Khatun.
6. The learned counsel for the respondents has supported the decision of the learned Additional District Judge and against the points raised by the learned counsel for the petitioners he has relied upon Bashir Ahmad Khan v. Qaiser Ali Khan and 2 others (PLD 1973 SC 507) in which it has been held that section 115, C.P.C. would be attracted if a Court subordinate to the High Court has given a decision in respect of any state of facts after judicially considering the same. The decision need not necessarily dispose of the whole matter or suit pending before the subordinate Court; Barkat Ali and 4 others v. Mst. Zainab and others (PLD 1981 B.J. 58), in this case it was held that where no reasonable ground was made out nor any sufficient cause was shown the appellant could not be held to be entitled to an indulgence provided by section 149, C.P.C.; Hidayat Ullah and another v.
10. Muhammad Ibrahim and another 1981 SCMR 381, in this case the view of the High Court that in cases where the act of not paying the proper amount of court-fee was contumacious or actuated by positive mala fides the Court would not grant the indulgence to the plaintiff of permitting him to make good the deficiency in the court-fee after the expiry of the period of limitation, was approved; Malik Sikandar Khan v. Shah Muhammad and 3 others 1983 CLC 1256, in this case a revision petition was filed from an order of the Civil Judge directing the making up of the deficiency in the court-fee, it was observed that the suit filed by the petitioner was without court-fee and therefore, there was no plaint presented in the eye of law within the time provided. The case was therefore, hit by section 3 of the Limitation Act. The case was also covered by the case of Mst.
11. Walayat Khatun. Even a revision petition was filed in the wrong Court though the valuation fixed by the trial Court should have been acted upon. The time fixed by the trial Court therefore, lapsed and the suit became barred by time on 13-2-1980, even if that order was valid. Consequently it was held that the suit of the petitioner was barred by time as he paid no court-fee at all either before the prescribed or extended time. The suit was dismissed. In addition thereto, the learned counsel for the contesting respondents has relied upon sections 25, 26, 28 and 30 of the Court Fees Act.
12. This case can be decided without attending to the other points raised by the learned counsel for the parties on the point precisely having been dealt with by the learned Additional District Judge.
13. No doubt section 25 of the Court Fees Act provides that all fees referred to in section 3 or chargeable under the Act shall be collected by stamps and under section 26 which shall be impressed or adhesive or partly impressed and partly adhesive and section 28 days that no document which is to bear stamp under the Act be of any validity unless and until that is properly stamped and section 30 emphasises that no document requiring a stamp under the Act shall be filed or acted upon in any proceedings or in Court or office until the stamp has been cancelled.
14. According to the provision that stamps are the manifestation of the court-fee as having been paid.
15. The provision pre supposes that the stamps so required are available with the State and there exists a necessary arrangement to provide the same. Whatever was within the power of the petitioners they did that by depositing the amount for purchasing the stamps with the treasury and getting an endorsement on the challan to the effect that the stamps were not available. The main purpose of the Court-fees Act is a fiscal one i.e. to secure the revenue to the State. In this case the money was in the pocket of the State. The main purpose had been in a way satisfied. Only the deficiency was as to the manifestation of the same through stamps for which manifestation the petitioners were not at fault. The petitioners could not be charged with the non-compliance of the law in that behalf. In these circumstances it was not justified on the part of the learned Additional District Judge to observe that the deposit by the petitioners in the treasury was not enough and that was their bounden duty to pay the court-fee through stamps. It is not clear that when the State had not made available the stamps how the petitioners could be forced to provide the stamps, where even had the petitioners willed would have been helpless. The failure to supply the requisite stamps within the time fixed by the Court cannot be placed upon the petitioners. It is in fact the failure of the State. In view of the facts the learned trial Court has rightly rejected the application of the respondents for rejection of the plaint.
9. This Court is all the time reluctant to exercise the Constitutional jurisdiction in civil matters which are well provided by the Civil Procedure Code but this happens to be a hard case where the plaint has been rejected in revisional jurisdiction and that too without any warrant of law thus leaving the petitioners with no remedy at all and as the rejection of the plaint by the learned Additional District Judge is out and out uncalled for, on the reason that the petitioners were expected by him in the circumstances of the case to do that which was impossible for them. The law on the facts of the case with all the stretch of imagination cannot penalise a person for a failure regarding which he is not responsible, therefore, the judgment of the learned Additional District Judge is without lawful authority and is declared as such so without any legal effect. In the circumstances there is no order as to costs.