' NAIMUDDIN, J.--This appeal, by leave is from the judgment of the Lahore High Court dated 12-10- 1983 whereby it rejected the appeal of the appellant.
2. Leave was granted to consider the contention of the learned counsel for the appellant that the order extending the time for payment of court-fee was one falling within the discretionary powers of the trial Court under section 148, C.P.C. A and once the time was extended, no issue was framed in the suit and the proceedings had resulted in a decree, the plaint was not liable to be rejected under Order VII rule 11, C.P.C.
3. It may be stated that the contention which had prevailed with the Additional District Judge and the High Court was that the appellant was guilty of contumacious_ disregard of the first order of the trial Court whereby he was initially permitted to pay the court-fee by a particular date.
4. The facts relevant for consideration of the above noted contention are that the appellant pre- empted the land measuring 122 kanals entered in khata No,24/40 situated in Chak No, 21/T.DA., tehsil and district Bhukkur mutated at No,106 on 16-11-1973, by filing a suit in the Court of the Civil Judge, Bhukkur. The plaint was presented on 15-11-1974, i.e,, one day before the expiry of the period of limitation with a court-fee stamp of Rs, 5 thereon. The Court extended the time for making up the deficiency in the court-fee till 8-1-1975, but before the expiry of time given, the appellant on 6-1- 1975 made an application under sections 148, 149 and 151 CPC for further extension of time on the ground that in spite of best efforts he had not been able to obtain revenue papers obviously to fix the valuation of the suit for the purpose of court-fee because the Patwari had been busy in connection with the distribution of fertilizer and there was no negligence on his part. The learned Civil Judge granted the application and extended the time within which the appellant made good the deficiency. Thereafter the suit was tried on merits and decreed.
5. However. Before the trial Court no issue was raised regarding the nonpayment of proper court- fee in time or questioning the grant of time. However, at the time of hearing the arguments, the learned counsel for the respondents submitted that an issue regarding making up the deficiency in the court-fee which was necessary had not been framed. Dealing with this objection, the trial Court observed as follows:- ".. At this stage I am not inclined to agree with the learned counsel for the defendants with regard to framing an issue. The issues were framed on 14-2-1975 and it was not objected on behalf of the defendants upto this time that an issue regarding the making up of the deficiency of court-fee within time had not been framed. It will imply that the learned counsel for the defendants has waived preliminary objection No,3 because he did not stress upon it either when the issue was framed or upto the time when the case was fixed for final arguments."
' And after discussing all the issues raised, decreed the suit by the judgment and decree dated 30- 7-1977.
6. Aggrieved by the judgment and decree of the trial Court passed on merits, the respondents preferred an appeal with the Additional District Judge, Mianwali, who while upholding the judgment and decree of the Civil Judge on merits, allowed the appeal by the judgment dated 2-12-1981 and rejected the plaint under Order VII rule 11, C.P.C. Holding that the order granting time for making good the deficiency in court-fee was not justified and it was a fit case where the plaint should have been rejected under Order VII rule 11 CPC. The main reasons which weighed with the Additional District Judge were as follows:-- ' When a person puts ridiculously low court-fee he is guilty of contumacy and does not deserve indulgence. A Court is not justified to allow time for validating his plaint and destroy the plea of limitation which may have been perfected in favour of the defendant in the meantime. This shows his mala fides and contumacy."
7. Aggrieved by the order of the Additional District Judge, the appellant filed regular second appeal in the High Court which was dismissed by the judgment dated 12-10-1983 impugned in this appeal.
In dismissing the appeal the reasons which weighed with the High Court were as follows:-- "The plaintiff filed the suit on the last date of limitation and took no steps over a period of one year to obtain the statement of annual net profit. The record does not show when the appellant/plaintiff approached the Patwari concerned in this regard. Furthermore, the appellant/plaintiff filed the plaint with a ridiculously low court-fee of Rs,5 against the court-fee of Rs, 3,075. This could never be treated a bona fide act. The appellant was grossly careless of his duty in affixing proper court-fee.
In these circumstances, the trial Court was not justified to allow time and destroy the plea of limitation."
' The High Court relied on a judgment of this Court in the case of Mst. Walayat Khatun v. Khalil Khan and another (PLD 1979 Supreme Court 821).
8. We have heard the learned counsel for the appellant. The respondents are ex parte. It is well settled that the Court is bound to ascertain the deficiency in the court-fee affixed on the plaint and then give time to the plaintiff to make up the deficiency and if the plaintiff complies with the order within the time, the defect in the plaint is deemed to have been removed from the date it had been originally filed in Court, Sultan v. Azhar Ali Shah and others (1985 SCM R 592). Reference may also be made to Siddique Khan and 2 others v. Abdul Shakur Khan and another (PLD 1984 Supreme Court 289) wherein at page 319 it was observed as follows:-- "It is further interesting to note what has often been ignored regarding the Full Bench decision of the Lahore High Court in the case of Jagat Ram (1938), namely, that the reference made on these questions through an elaborate order of reference was in reality not answered in the circumstances of that case. And only section 149, C.P.C. Was interpreted by the Full Bench in the manner already indicated namely that the exercise of discretion thereunder is not controlled by or dependent upon the considerations which are relevant under the Limitation Act. This Full Bench case in this behalf, as noticed earlier was, approved by this Court in both the cases of Muhammad Nawaz Khan (1970) and Shah Nawaz (1972).
' The following weighty findings and observations in the case of Muhammad Nawaz Khan are to be clearly understood and reiterated:--
(a) It would indeed be anomalous if limitation is not saved in cases in which law requires the Court to allow the plaintiff to correct the valuation of the relief claimed in the suit which must necessarily entail making up deficiency in the stamp paper affixed on the plaint; therefore;
(b) Time should automatically be enlarged in cases in which the Court has the discretion to grant time to pay the whole or part of the court-fee prescribed; and
(c) Consequently where the plaintiff is required to correct the valuation of the relief claimed in the suit, "he shall further be required to supply the requisite stamp paper and on compliance it shall have the same force and effect as if such fee had been paid in the first instance."
' Moreover, section 28 of the Court Fee Act also fully supports the proposition, which reads:-- "28. 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 relative thereto shall be as valid as if it had been properly stamped in the first instance."
9. In the present case, it is admitted fact that the appellant had filed the suit within time and he was allowed time upto 8-1-1975 to pay the deficit court-fee and before the expiry of this period, he applied u/s 148, 149 and 151 CPC for further extension of time. The learned Civil Judge was satisfied with the reasons given by the appellant and he, therefore, in exercise of his discretion under section 149 CPC extended the time and the deficit court-fee was paid within the extended time. It does not matter whether the deficit court-fee was more or less. In the case of Shah Nawaz and 6 others v.
Muhammad Yousuf and 3 others (1972 SCM R 179), this Court had upheld the order of the trial Court allowing time for paying the deficit court-fee. It was observed therein that "it is thus evident that unless the plaintiff is guilty of contumacy or positive mala fides in putting in deficient court-fees along with his plaint, the Court could in its discretion allow time to the plaintiff to put in the deficient court-fee".
10. In the case of Mst. Walayat Khatun (supra) relied upon by the High Court, this Court at page 825 of the report, observed as follows;-- "Similarly where a plaintiff puts ridiculously low court-fee, or where the plaint appears to have been filed not for any bona fide object of its serious pursuit, but to tease or harass another or others concerned, then a Court will not br justified to allow time for validating such a plaint and destroy the plea of limitation which may have been perfected in favour of a defendant in the meantime sheerly due to non-seriousness of the plaintiff or causes of similar nature. A plaintiff who is guilty of contumacy, positive mala fides, or lack of bona fides will not be entitled for any indulgence. In this respect similarly poverty or ignorance will also be no excuse."
'Therefore, the question for consideration is whether there was any contumacious disregard of the order of the Court or was there any positive mala fides on the part of the appellant in complying with the first order of the trial Court whereby time upto 8-1-1975 was allowed to the appellant to make good the deficiency in the court-fee. The ordinary meaning of 'contumacious' as given in Chambers 20th Century Dictionary are as follows:-- "Opposing lawful authority with contempt, obstinate, stubborn."
' This word came up 'for consideration before a Division Bench of the Lahore High Court in the case of Malik Jan Muhammad v. Shukaruddin and 6 others (1980 CLC 186) and it was observed as follows:-- "Putting in plaint with deficient court-fees would not fall in the category of contumaciousness. As regards positive mala fides, it may be noticed that generally in this part of the country on pre- emption suits tentative court-fees is paid to be made good on obtaining mesne profits from the Revenue officials generally through the Court because getting of statement of net profits prepared from the Revenue Record, all know, is not only too difficult but too expensive as well."
' Same is the position in the present case. The appellant had applied for further extension of time for payment of deficit court-fee as he was unable to obtain the revenue papers obviously concerning mesne profits in order to fix the proper valuation and court-fee accordingly because the Revenue Officer had gone in connection with distribution of fertilization and the Court had accepted this reason and extended the time, therefore, there was no mala fides on the part of the appellant nor had he disregarded the order of the Court at any stage. Indeed, before the expiry of the time allowed by the Court, for the first time he had made the application for extension of time and when the time was extended he made good the deficiency within the extended time.
11. In these circumstances, it cannot be said that the trial Court had exercised the discretion in an illegal, arbitrary or capricious manner and in the absence of such exercise, the first appellate Court or the High Court could not properly interfere with the exercise of discretion by the trial Court. Since the findings of the trial Court on merits were affirmed by the first appellate Court, we would, therefore, set aside the judgment of the High Court and the order of the first appellate Court with regard to the payment of deficit court-fee and the order of rejection of the plaint and restore the judgment and decree of the trial Court.
12. However, in the circumstances of the case, we leave the parties to bear their own costs.