1. ' SHAFIUR RAHMAN, J.-- Leave to appeal was granted to the five appellants whose land was acquired under the Land Acquisition Act to examine whether the rejection of their application under section 149, C.P.C. And the dismissal of their Regular First Appeal on account of deficiency in court-fee, by the Lahore High Court by its decision, dated 13-6-1981, was not in conformity with the decision of this Court delivered in Siddique Khan and 2 others v. Abdul Shakur Khan and another (PLD 1984 SC 289).
2. ' Land measuring 225 kanals 9 marlas equal. To 28.18 acres situate in village Khanpur-Nabipur, Tehsil Ferozewala, District Sheikhupura, belonging to the appellants was acquired by the Land Acquisition Collector, Punjab Highways Department, for a public purpose namely, construction of a new carriage-way between Lahore and Sheikhupura. The Land Acquisition Collector gave an Award, dated 18th of March, 1976 and allowed Rs,30,000 per acre for culturable land, Rs,15,000 per acre for non-culturable and a sum of Rs,83,000 for Dera and Rs,2,000 per acre for the standing crops. The usual 15% compulsory acquisition charges were also levied. The award of the Collector held in abeyance the compensation for the standing trees. The total Award of compensation made by the Collector amounted to Rs,10,62,250.93. The compensation so awarded by the Collector was not accepted by appellants/the land owners. They claimed a Reference under section 18 of the Land Acquisition Act seeking compensation at the rate of Rs,6,000 per marla. The Reference under section 18 of the Land Acquisition Act was disposed of by the Senior Civil Judge, Sheikhupura as the District Court. As many as fourteen issues were framed. It is not necessary to either reproduce or to deal with them in these proceedings. The Collector, however, after considering the Report of the Local Commission enhanced the compensation to Rs,40,000 for culturable land, 24,000 per acre for non-culturable land and Rs,1,25,000 for Dera.
3. ' The appellants did not feel satisfied and preferred a Regular First Appeal in the High Court. They claimed compensation in appeal at the rate of Rs,750 per marla as recommended by the Local Commission appointed by the District Court. The order appealed against was passed on 24i h of March, 1977, the copy was applied for on 26th of March, 1977, the copy was completed on 6-4-1977 and the Regular First Appeal was filed on the 12th of July, 1977. The Memorandum of Appeal bore a court-fee stamp of Rs,15 only. At the stage of the hearing of the arguments on 25th of May, 1981, it was noticed that proper court-fee had not been paid and the following order was recorded by the Court on that date.
4. "Ch. Muhammad Arif, Advocate Mr. S.M. Abdul Wahab, Advocate.
5. ' During arguments it has transpired that R.F.A. No,63/77 is made on payment of Rs,15 whereas the difference claimed by the appellants apparently exceeds Rs,22,00,000. Learned counsel for the appellants wants to tile an application under section 149 for extension of time for making up the deficiency. To come up tomorrow."
6. ' An Application under section 149 of the Code of Civil Procedure was filed by the applicants the very next day and the following explanation was provided:-- "That during the course of arguments in R.F.As. Nos.63 and 157 of 1977 today the 25th May, 1981, the learned Division Bench, hearing the appeals (R.F.As. Nos.63 of 1977 and 157 of 1977), was pleased to point out that the Memo. Of Appeal in R.F.A. No,63/77 was insufficiently stamped. On the petitioners/appellants making an oral request for permission to supply insufficient court-fee, they (the petitioners) were asked to file an application under section 149, C.P.C., to he dealt with in accordance with law and the hearing adjourned to tomorrow, the 26th May, 1981. The instant application is, therefore, being filed by the petitioners/appellants under section 149 read with sections 8 and 28 of the Court Fees Act 1870 and section 151 C.P.C."
7. ' They further stated:- "That as the reference had been made to the learned Senior Civil Judge Sheikhupura under section 18 of the Land Acquisition Act, 1894 for final determination of the amount of compensation to which the petitioners are entitled, the petitioners/appellants were advised to pay court-fee of Rs,15,000 but the petitioner/appellant No,1 mistook the figure indicated to him as Rs,15.00 (Fifteen only) instead of 15,000 (Fifteen thousand only) and buying the Court Fee Stamp of the denomination of Rs,15 filed the Memo. Of Appeal inadvertently on insufficiently stamped paper on 12-4-1977 as submitted above, much before the expiry of the period of limitation."
8. ' And finally requested:-- "That as explained in the above, the Memo. Of Appeal was inadvertently and bona fide stamped with a court-fee of Rs,15 much before the expiry of the period of limitation and, therefore, this Hon'ble Court's gracious jurisdiction under section 149/151, C.P.C. As also under sections 8 and 28 of the Court Fees Act, 1870 is eminently attracted and the petitioners/appellants deserve indulgence of this Hon'ble Court, it is submitted with respect, to be permitted to make good the deficiency of court-fee."
9. ' This application was seriously contested by the Collector and finally disposed of by the High Court after hearing the arguments observing as hereunder:-- "Each case has different features and facts and discretion as provided by section 149, C.P.C. Has in all cases to be applied carefully. Ordinarily a bona fide mistake is a good excuse and instead of rejecting the plaint or appeal for want of proper court-fee, the litigant is allowed indulgence if he has acted diligently and in good faith. Undoubtedly the appeal was accepted by the Office without an objection although there was a glaring omission in the payment of the proper fee, but, it is doubted that the appellants were mistaken at all and that too inadvertently. It appears from the record that the memorandum of appeal did not purposely show how much value was being claimed by them and how much was the valuation of the appeal fixed for purposes of court-fee. As indicated in the column of the court-fee paid, a sum of Rs,15 was written in the first instance, and subsequently the same was by overwriting changed to Rs,15,000 but court-fee was not made up.
10. This prima facie gives an impression that the appellants were conscious enough from the very beginning that the appeal carried deficient court-fee, but at the same time no attempt was made to correct the error. It was the duty of the appellants to have corrected the mistake of which they were apparently aware and to have made up the deficiency within a reasonable time, but the same, for reasons known to them, was not done. Inadvertence referred to, appears to be that of the counsel, namely Mr Muhammad Arif, Munawar Hussain and Muhammad Salem Sahgal, Advocates who had filed the appeal, but none of them came forward with an explanation how the mistake had taken place. The affidavit of one of the appellants who had not drafted the appeal could not furnish a proper explanation and was thus not sufficient. In the circumstances "good cause" was not made out and the appellants were not entitled to extension of time. The application under section 149, C.P.C. Is thus rejected and the appeal being not stamped is dismissed as an invalid document with no order as to costs."
11. ' Mr. A.R. Shaikh, Senior Advocate, the learned counsel for the appellants has contended that the appellants had a substantial cause which merited fuller examination in Regular First Appeal. They were not at fault. They had been rather the victim of the failure of their own counsel to correctly inform them of the liability with regard to court-fee and also of the failure on the part of the statutory functionaries of the High Court itself, the officers of the Court who in spite of a direction to check the Memorandum of Appeal and the documents filed with it, failed to point out any deficiency or shortcoming. The appeal had been filed well within time and if the statutory duty had been discharged by the Court-functionaries, there was yet reasonable time available within limitation for making up the deficiency and it could have been done. The documents on record of the High Court themselves show that it was a case of omission on the part of persons other than the appellants and that the appellants could not, in such a cause, be made to suffer for their fault.
12. ' Mr. Muhammad Nawaz Abbasi, learned Assistant Advocate-General, on the other hand contended that there was a deliberate default, and inordinate delay in realising the omission and in making the application under section 149, C.P.C. And by that time the appeal had become hopelessly time-barred. According to the learned Assistant Advocate-General, the discretion enjoyed by the High Court in dealing with an application under section 149, C.P.C. Has been correctly exercised and does not require any interference at this stage.
13. ' The record of this Regular First Appeal shows that the Memorandum of Appeal was signed by three learned counsel, all of them fairly senior in standing. Additionally, the document containing Rs,15 court-fee stamp is also signed by all the three learned counsel. There is a note made by the Office on this Memorandum bearing court-fee of Rs,15 in the following words:- {{TABLE}} I/O 24-3-77 Decree -do- C.Fee Rs,15 P.A. Filed For report. Sd/- 26/4 R.F.A./S.B." {{TABLE}} ' Then follows the following note:-- {{TABLE}} "P.F. Added.
14. Fix 14-9-77 (Farzi) vide Order dt: 8-6-77.
15. S.Civil Sd/- 18-6-77." {{TABLE}} ' In view of these documents and reports it is clear that in their application under section 149, C.P.C.
16. And the Affidavit, the appellants have owned a fault which did not belong to them and this has been done evidently to preserve and protect the special relationship that exists between the counsel and the client.
17. ' Section 5 of the Court Fees Act provides as hereunder:-- "5. Procedure in case of difference as to necessity or amount of fee.- -When any difference arises between the officer whose duty it is to see that any fee is paid under this Chapter and any suitor or attorney, as to the necessity of paying a fee or the amount thereof, the question shall, when the difference arises in any of the High Courts, be referred to the taxing-officer, whose decision thereon shall be final, except when the question is, in his opinion, one of general importance, in which case he shall refer it to the final decision of the Chief Justice of such High Court, or of such Judge of the High Court as the Chief Justice shall appoint either generally or specially in this behalf.
18. ' The Chief Justice shall declare who shall be taxing-officer within the meaning of the first paragraph of this section."
19. It shows that there is an officer whose duty it is to see that the proper fee payable !B under the Court Fees Act has been paid.
20. Rules 11 to 13 of the High Court Rules and Orders, Chapter I, Part A of Volume V, provide as follows:-- "11. Court-fees.- -No petition, memorandum of appeal or other document, which ought to bear a stamp under the Court Fees Act, 1870, shall be received in the Court until it is properly stamped.
12. Taxing Officer. --The Chief Justice has been pleased to declare that the Registrar of the High Court shall be the Taxing Officer within the meaning of section 5 of the Court Fees Act.
13. Improperly stamped document remains invalid unless filed through mistake and time extended for making up deficiency. --Attention is drawn to the provisions of sections 4 and 28 of the Court Fees Act, and it must be understood in connection with section 5 of the Limitation Act that an improperly stamped document even though received, filed or used in the Court remains invalid, unless it is proved to the satisfaction of the Court that it was so filed or used through mistake or inadvertence, and time is extended for making up the deficiency in the court-fee."
21. ' There was indeed a duty, notwithstanding the clear prescription that the document remains invalid, of the functionaries of the Court to have scrutinized the document with a view to ascertain that it was properly stamped.
22. ' The law laid down in the cases of Mst. Walayat Khatun v. Khalil Khan and another PLD 1979 SC 821, Allah Yar v. Muhammad Riaz anc others PLD 1981 SC 489 and Noor Muhammad and others v. Mst.
23. Nizam Bibi 1982 CLC 2208, has been reconsidered and a more authoritative pronouncement given in Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289 and Fida Muhammad v. Pir Muhammad Khan (deceased) through Legal Heirs and others PLD 1985 SC 341.
24. Finding the signatures of the three learned counsel on the Memorandum of Appeal as well as the document bearing court-fee stamp of Rs,15 and the explanation given in the Application made under section 149, C.P.C. We find that the appellants had been more a victim of the circumstances and there has been no wilful default on their part to merit the dismissal of their application under section 149 of the Code of Civil Procedure. Inherent contradiction in these documents bearing the signatures of the three learned counsel and in paras. 7, 10 and 11 of the Application made under section 149, C.P.C. Has not been noticed by the Court while dealing with the matter. Hence we allow the appeal, set aside the judgment of the High Court, accept the application under section 149, C.P.C., allow fifteen days time from today to the appellants to file the deficient court-fee in the High Court. Keeping in view the fact that the matter is fairly old one, we hope that the appeal shall be given priority in the matter of disposal for which the record received from the High Court shall be sent back immediately. No order as to costs.