1. ' BASHARAT AHMAD SHAIKH, J.--Respondent Muhammad Nawaz Khan and Co., a firm, filed a money suit to recover an amount which is claimed was due from the Public Works Department. The suit was decreed by the learned District Judge on 31st of August 1992. The Public Works Department and others, including the Azad Government of the State of Jammu and Kashmir, filed appeal before the High Court but no court-fee was affixed on the memorandum of appeal. Subsequently an application was moved by the appellants before the High Court seeking permission to pay the court-fee. This application has been rejected and consequently the appeal itself has been dismissed. Executive Engineer and other defendants have filed this appeal as of right under section 42 (11) of the Interim Constitution Act.
2. ' The operative part of the judgment of the High Court is contained in para. 14 which May be reproduced below:-- "14. In the present case as discussed earlier, no court-fee at all has been paid by the appellants.
3. This fact was pointed out by the office of this Court in its report dated 8th November, 1992 when the appeal was presented in the office. At that time, the period of limitation had not yet elapsed. No steps were taken by the appellants. Even in the present application, no explanation has been furnished by the appellants that despite formal notice of the objections, why the court-fees was not paid in time. In these circumstances, the appellants have failed to make out a case for exercise of discretion in their favour which would deprive the plaintiff-respondent firm of a valuable right which has accrued to it by lapse of time."
4. ' Sardar Rafique Mahmood Khan, the learned counsel for the appellants, vehemently contended that the grounds on which the operative part of the judgment is based are not legally sustainable.
5. He submitted that it was mandatory for the High Court under section 149 read with Order VII, Rule 11 of the C.P.C. To give at least one opportunity to the appellants to pay the court-fee. He relied on Sheo Shankar and others v. Mt. Ram Dei and others (AIR 1935 Oudh 231), Hussain Ali Khan v, Ambika Prasad (AIR 1937 Oudh 414), Bachan Singh v. Dasrath Singh (AIR 1935 All. 985), Muhammad Boota v.
6. Farzand All (1980 CLC 1124) (a judgment of this Court) and Siddique Khan v. Abdul Shakur Khan (PLD 1984 SC 289). He strongly relied on the last-mentioned case adding that it is an exhaustive judgment of four Judges of the Supreme Court who authoritatively laid down the law on the subject and it was pleaded by him that the principles of law laid down therein may be adapted by this Court.
7. ' The learned counsel for the respondent, Mr. Abdul Ghafoor Qureshi, defended the action of the High Court in refusing to grant permission as prayed for. He contended- that under section 149 of the Code of Civil Procedure a discretion can be favourably exercised if a bona fide mistake of one kind or another has occurred, but in the present case no tenable reasons were advanced by the Government functionaries in their application. According to him, mere assertion that the court-fee was not paid due to inadvertence does not make out a case for grant of discretionary relief which has to be done in light of the settled legal principles. It was vehemently contended that the period of limitation expired on Ist of January, 1993 while the application under reference was moved on 11th of May after the expiry of many months of the limitation prescribed for filing an appeal. He relied on State Life Insurance of Pakistan v. Mst. Zainab Khatoon (PLD 1987 SC (AJ&K) 5) and Lal Shah v.
8. Muhammad Ishaq (PLD 1977 Lah. 1058).
9. ' First we advert to the contention of Sardar Rafique Mahmood Khan that the High Court was under a legal obligation to give at least one opportunity to the appellants to supply the requisite court- fee, he contended that his interpretation was based on section 149 and Order VII, Rule 11, clauses (b) and (c) of the Code of Civil Procedure which have to be read together. For the sake of facility the two provisions may be reproduced below:-- "149. Power to make up deficiency of court-fees.--Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court-fee has not been paid the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such court-fee; and upon such payment the document, in respect of which such fee is payable shall have the same force and effect as if such fee had been paid in the first instance."
10. ' Order VII, Rule 11, clauses (b) and (c):-- "11. Rejection of plaint.--The plaint shall be rejected in the following cases:--
(a) Where the relief claimed is under-valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(b) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court fails to do so;
(c) ............ ........................ ........."
11. ' It may be firstly noted that section 149 applies to a case in which whole of the court-fee is unpaid, apart from a case in which a part only of the fee is unpaid. So far as this section is concerned it confers, in view of its phraseology, a discretionary power which is exercisable at any stage. If section 149 is read in isolation the argument that a Court is bound to give at least one opportunity to a defaulting party cannot be sustained. However, clauses (b) and (c) do require that a plaint cannot be rejected unless at least one opportunity is given to the defaulting party, by fixing a time for compliance of the order. This aspect of the matter should not engage our attention because by now the law has become settled that these two provisions, section 149 and Order VII, Rule 11, have to be read together and must be given effect to accordingly. It follows that these two provisions cannot be considered to be mutually destructive. The question, therefore, is how the apparent difference that section 149 is discretionary while clauses (b) and (c) of Rule 11 are mandatory in nature may be reconciled. A close look at the two provisions A would show that this difference is only apparent and is not real. Section 149 is a general provision which deals with all categories of cases but clauses (b) and (c) only deal with two given situations. Clause (b) deals with a situation where the relief claimed is undervalued, while clause (c) caters to a situation where the relief claimed is properly valued but the plaint is written upon insufficient stamp paper. The plain interpretation, therefore, is that in situation falling in clauses (b) and (c) the requirement of giving one opportunity is mandatory and if a case does not fall in any of the two categories the power would be discretionary.
12. ' So far as the present case is concerned, with the memorandum of appeal neither any court-fee is affixed nor does it contain valuation,. Thus it cannot be said that the relief claimed was undervalued or that the plaint was written on insufficient stamp paper. It follows, therefore, that the case is not covered by the special provisions of clauses (b) and (c) of Rule 11. Therefore, the general provision contained in section 149 is attracted.
13. ' Turning to the grounds on which the application moved by the appellants was rejected, they may be divided in the following heads:--
(1) No court-fee at all has been paid and no steps were taken to pay the fee within the period of limitation;
(ii) no reason has been shown which may justify exercising of discretion in appellants' favour which would deprive the contractor of a valuable right which had accrued to him by lapse of time; and
(iii) in spite of "formal notice" of the objection relating to the failure to pay the court-fee, the appellants did not pay the court-fee.
14. ' There are two Adie's on the question whether limitation for filing a suit or appeal has any nexus with making up of court-fee. The view of the Supreme Court of Pakistan is that bar of limitation is not a factor in context of the failure of a party to supply proper court-fee under the Court Fees Act and section 149 and Order VII, Rule 11 of the Code of Civil Procedure. That august Court in Muhammad Siddique's case, cited by Sardar Rafique Khan, observed that:-- "One more conclusion that can be drawn from the foregoing discussion is that the failure to supply proper court-fee in the context of the Court Fees Act and section 149 and Order VII, Rule 11 (c) can at best be equated with non-prosecution and not with non-institution or presentation of the matter/document nor with the bar of limitation. Accordingly, considerations in that behalf for exercise of discretion under sections 148 and 149 and the relevant provisions of Court Fees Act should be different from those under section 5 of the Limitation Act, which in any case does not apply to the suits. To apply the latter to the former cannot be justified on any rule of interpretation.
15. This is what was thought as the proper approach by the Lahore Full Bench in the case of Jagat Ram (1938) when discovering the meaning of bona fides from the General Clauses Act rather than applying the Limitation Act. In the light of these additional reasons on this subject the rule laid by this Court in the cases of Mst. Perveen (1983) and Shahna (1983) is reaffirmed. For all these reasons it is accordingly held that when considering the options for exercise of discretion for grant of time for supply of deficiency in the court-fee, considerations relevant to bar of limitation shall not be taken into account."
16. We respectfully agree with the view. The time allowed under the Limitation Act is relatable to the presentation or institution and has nothing to do with question of payment of court-fee which is dealt with in the Court Fees Act and the two provisions of the Code of Civil Procedure under reference. Under section 149 the Court has been specifically empowered to receive the whole or part of the court-fee at any stage. The words 'at any stage' clearly indicate that limitation has nothing to do with the exercise of discretion vested by that section. The words 'at any stage' are used in Order VI, Rule 17 of the Code of Civil Procedure which deals with power of the Court to allow amendment of pleadings. Under Order VI, Rule 17 the discretion of allowing or disallowing amendments is exercisable in light of the principles which have been laid down on that subject but limitation is not a ground to be brought under consideration. We may in this connection refer a judgment of this Court reported as Muhammad Iqbal v. Mirza Begum (1992 MLD 1257). Similarly under section 149 the discretion may be exercised in light of the principles connected therewith at any stage, limitation not being a factor. It is plainly deducible from the provision contained in section 149 that when payment is made in consequence of the permission granted by the Court the document shall have the same force and effect as if such fee had been paid in the first instance. We may point out that in section 149 there is no reference to extension of time for payment of court-fee and there is mention of permission to pay the fee.'
17. ' We may observe that we are conscious of the fact that a Bench of this Court has taken a different view on the question of limitation in State Life Insurance of Pakistan v. Mst. Zainab Bibi (PLD 1987 SC (AJ&K) 5), already referred to. We regret to note that the parties which appeared in that appeal, which was heard by the two learned Judges, did not refer to the judgment in Siddique Khan's case (PLD 1984 SC 289).
18. The observation of the High Court that the exercise of discretion in favour of the appellants would have the effect of depriving the respondent of a valuable right which had accrued to him by lapse of time also does not appear to be well founded. There is weight of authority that no right accrues to the opposite-party due to the non-payment of court-fee. On this point we again rely on the following observation from Siddique Khan's case:-- "It is also appropriate here to state the well-accepted rule about Court's attitude towards the collection of court-fee as agent of State. It is to the effect that the Court Fees Act like the other fiscal statutes is to be construed strictly and in favour of the subject; and that it was passed with the object of securing revenue for the benefit of the State and not to arm a litigant with a weapon of technicality to harass his opponent--See Rachappa Subrao v. Shidappa Venkatrao (AIR 1918 PC 188), Muhammad Sharif v. Mst. Natho (PLD 1965 Lah. 686)."
19. ' In fact the learned Judges in para. 13 of the judgment under appeal made a similar observation in the following words:-- ".... The matter of court-fees is basically between the party claiming relief from a Court and the State regarding the recovery of the State revenue. It is also accepted proposition of law that the court-fees is recovered not for any benefit of the opposite-party but for the State."
20. ' The most significant observation made by the learned Judge in the High Court is that in spite of a "formal notice" the appellants did not deposit the court-fee. A perusal of the record shows that this observation is not borne out from the record. The appeal was filed in the High Court on 8th of November, 1992. It is provided in the High Court (Procedure) Rules that appeal etc. Shall be presented before the Deputy Registrar but the file does not show that it was presented before any Judge or the Deputy Registrar of the Court. On the file is a note written by the `Serishta' that the appeal had been presented by the Additional Advocate-General and that it was in order in all respects, but it is pointed out that no court-fee had been paid. This observation is not followed by any note that it was a deficiency to be made up or a defect to be cured. There is nothing on the record to show that the learned Additional Advocate-General was made aware of this observation.
21. The mere fact that the note begins with the observation that the appeal had been presented by the learned Additional Advocate-General does not show that the note was written in his presence.
22. Be that as it may, "formal notice" has to be given by the Court in terms of section 149 and Order VII, Rule 11 of the Code of Civil Procedure. The appeal was put up before a learned Judge of the High Court and he recorded his preliminary order on 10th of November, 1992 in which he issued notice to the respondents and issued a stay order. The aspect touching the question of court-fee does not find any mention in the order of the learned Judge. Thus it is clear that the learned Judge did not notice that no court-fee had been paid. There is no question that the learned Judge ever gave any notice. The matter rested there till the filing of the application on 11th of May, wherein it was prayed that the appellants may be allowed to pay the court-fee.
23. We thus find that the grounds recorded by the High Court for disallowing the application and consequently dismissing the appeal did not in fact exist. The wrong assumption on matters of law and fact led to the passing of the impugned order which, in our opinion as recorded above, is not sustainable.
24. ' An important aspect of the case is whether the present case falls under Order VII, Rule 11, clauses
(b) and (c) of the Code of Civil Procedure or not. As we have seen the situations contemplated in clauses (b) and (c) of Rule 11 of Order VII are not present in the instant case. It, therefore, falls under the general provision of section 149. That being so, High Court had to pass a discretionary order under that section.
25. ' The weight of the authority is that in a case falling under suction 149, unless the plaintiff or appellant is guilty of contumacy or positive mala fide, he should be allowed to pay the court-fee. In this respect we may first refer to the Full Bench decision of Jagat Ram v. Misar Kharati Ram and another (AIR 1938 Lah. 361), which was case falling under section 149 of the Code of Civil Procedure as is the present case. It was observed as follows:-- ..... It seems to me that the discretion conferred on the Court by section 149, Civil Procedure Code, is normally expressed to be exercised in favour of the litigant except in cases of contumacy or positive mala fides or reasons of a similar kind. The question of bona fides in this connection should be construed in the sense that the word is used in the General Clauses Act and not as used in the Limitation Act. A thing should be presumed to be done bona fide, if it is done honestly whether it is done negligently or not for the purposes of judging whether discretion under section 149, should or should not be exercised in favour of the litigant."
26. ' We may then refer to Shah Nawaz v. Muhammad Yousaf (1972 SCMR 179) in which the above- quoted passage was cited with approval by the Supreme Court of Pakistan. Shah Nawaz's case was in turn reiterated in Siddique Khan's case (PLD 1984 SC 289), to which reference has already been made more than once. Also instructive is the following passage from a judgment of this Court in Muhammad Boota v. Farzand Ali (1980 CLC 1124) in which Ch. Rahim Dad Khan, C.J. Speaking for the Court observed:-- "On the basis of above discussion we are of the opinion that the discretion vested in the Courts to reject a suit or a memorandum of appeal for failure to make up deficiency in court-fees should be exercised not arbitrarily or in a fanciful manner but in a judicious manner keeping in view all the circumstances of a case so as to advance the ends of justice and if necessary, period originally granted for making up deficiency, may be extended in the interests of justice,. All the rules of procedure, after all, are meant for dispensation of justice and not for its impediment or depriving a rightful person of his right on technical grounds. The learned Single Judge, was not justified, in the present case, to dismiss the appeal when the respondent offered to make up the deficiency on that very day."
27. ' There is no adverse factor in the present case. In fact the court-fee was offered to be paid in spite of the fact that the opposite-party had not raised any objection and the inadvertence was realised by the learned Advocate-General, who was subsequently engaged to argue the case, that the court-fee had to be paid.
28. In this view of the matter we are persuaded to hold that the High Court should have given an opportunity to pay the court-fee. Therefore, accepting the appeal and setting aside the order of the High Court, we order the acceptance of the application moved by the learned Advocate- General, Mr. Sardar Khan, on 11th of May, 1993. The appellants are allowed to pay the court-fee before the 12th of June. The case is remanded to the High Court for deciding the appeal on merits if the court-fee is paid before the stipulated date. The parties are directed to appear before the High Court at Mirpur on 12th of June. To take further orders,