1. ORDER OF REFERENCE MUHAMMAD SHARIF, C. J.---The facts giving rise to this revision petition are that Nawab Khan instituted a pre-emption suit against Mst. Resham Jan on 19-6-65. The trial Court passed an order on 18-4-66 Counsel for the plaintiff and defendant No. 1 are present. Shah Muhammad defendant is also present. Amir Akbar Khan defendant is not present. He has been served by substituted service. Ex parte proceedings ordered against him. The defendants present have been given a copy of the plaint. They shall file their written statement on the next date and Zer-i-Panjant shall be deposited. The file to come up on 16-7-66." It so happened that the learned Presiding Officer of the trial Court was not present on 16-7-66. The plaintiff put in an application into the Court that he be allowed to furnish security instead of making a deposit of the one-fifth of the purchase price and he also filed a security bond for one-fifth of the purchase price the same day. The learned Sub--- Judge was not present and the clergy adjourned the case to 2-8-66. On 2-8-66 the learned Sub- Judge accepted the application of the plaintiff for permission to file a security bond instead of making the deposit and accepted and attested the security bond. The surety died and the plaintiff furnished another surety on 19-12-66. Both the surety bonds were drawn up on a paper bearing a non---judicial stamp of rupee one. The defendant raised an objection in the trial Court on 4-4-69 that the surety bond had bee n drawn up on an insufficiently stamped paper and further that this was not due compliance with the order of the Court dated 18-4-66. The case was adjourned to 10- 5-69 for arguments. One day before this date of hearing; i.e. On 9-5-69 the plaintiff made an application in the absence of the defendant to the trial Court for permission to make a deposit of one-fifth of the purchase price amounting to Rs. 1,600 which was allowed. The learned Sub-Judge by order dated 9-6-69 rejected the objections raised by the defendant and held that deposit had been made and that the plaint could not be rejected. The defendant has come up in revision against this order.
2. Learned Counsel for the petitioner argued the following points :-
(I) That the trial Court could not change its order dated 18-4-66 calling upon the plaintiff to make a deposit of the one-fifth of the purchase price into one allowing him to furnish security instead of making a deposit;
(2) The security bond had been drawn up on an insufficiently stamped paper, therefore, it was not a due compliance with the order of the Court dated 18-4-1966;
(3) That the deposit of the one fifth of the purchase price made by the Court and the order of the Court that it was not a due compliance with the order of the Court dated 18-4-66 and further that in any case the trial Court could not change its original order calling upon the plaintiff to make the deposit of the one-fifth of the purchase price.
3. Learned counsel cited PLD 1965 Lah. 394.
4. Learned counsel for the respondent argued that no definite date had been fixed by the learned Sub-Judge in his order dated 18-4-66 for making a deposit of the one-fifth of the purchase price nor had any definite date been fixed by the learned trial Judge for furnishing security or making the deposit. Therefore, the plaint could not be rejected. He cited PLD 1968 Azad J & K 85, a Single Bench Judgment which has been confirmed in appeal by the Division Bench by judgment dated 18-6-69.
5. Learned counsel reading from Mr. Nazir Ahmad's book of Punjab Pre-emption Act argued that the Court can vary its order for deposit of security. He also argued that if the security bond had been drawn on an insufficiently stamped paper and accepted by the Court, this was the fault of the Court and the plaintiff could not be penalised. In the end he argued that there being no definite date fixed for making the deposit or for furnishing security so far and the deposit of the one-fifth of the purchase price having been made by the plaintiff, which had been received by the trial Court, the plaint could not be rejected.
6. There are very important law points involved in this revision petition. There is no remedy by way of appeal against an order passed by a Single Judge in exercise of the High Court's revisional jurisdiction. The question whether the Court can vary its order calling upon the plaintiff to make deposit of the one-fifth of the purchase price and the question as to what articles of the Court Fees Act and the Stamp Act apply to the Security Bond and also the question whether a security bond drawn up on an insufficiently stamped paper can be acted upon or not and entail rejection of the plaint, are very important law points which require a thorough sifting. I, therefore, refer this revision petition in the Full Bench so that an authoritative judgment may be obtained.
7. The revision petition shall come up before the Full Bench on 26-9-1969 for arguments.
8. M. YUSUF SARAF, J.-[Facts omitted]. In the order of reference the following three points have been brought out for decision and the learned counsel for the parties also confined their arguments to them: -
(1) Whether the Court could vary its order calling upon the plaintiff to make deposit of the 1 /5th of purchase money and thereby permit its substitution by surety bond?
(2) What article of the Court Fees Act or the Stamp Act governed such surety bonds?
(3) Whether an insufficiently stamped bond could be acted upon or not or in other words whether the Court could after the date fixed for its presentation, permit the making up of the deficiency?
9. Section 22. (1) of the Pre-emption Act is reproduced below :- Section 21(1).-In every suit for pre-emption the Court shall at or at any time before the settlement of issues require the plaintiff to deposit in Court such sum as does not, in the opinion of the Court exceed 1/5th of the probable value of the land or property or require plaintiff to give security to the satisfaction of the Court for the payment, if required, of a sum not exceeding such probable value within such time as the Court may fix in such order.
10. It is the interpretation of this section that is involved in the case. It has come under discussion in certain authorities. The learned counsel for the petitioner referred to PLD 1965 Lah. 394 while we came across two other rulings reported as AIR 1938 Lah. 492 and AIR 1930 Lah. 597.
11. "(5-B). If any security so furnished for any cause becomes void or insufficient, the Court shall order the plaintiff to furnish fresh security or to increase this security, as the case may be, within a time to be fixed by the Court, and if the plaintiff fails to comply with such order, the suit or appeal shall be dismissed."
12. The ruling, therefore, means that where security has once been demanded instead of demanding case, the Court cannot on its becoming void or insufficient, ask for a cash deposit. The position would be different if the Court has first asked for a cash deposit and then varies it in favour of a bond, because while subsection (5-B) does not forbid such a course, subsection (1) invests the Court with the discretion of demanding either at the pre-issue stage. What is not forbidden should be assumed to have been allowed. If the Legislature intended that a Court should not permit the substitution of a deposit order by that of a security bond, it could have said so expressly as it has done in the case of a security-bond having been demanded in the very first instance. Express provision with regard to the latter shows that the Legislature did not deliberately make such a provision with regard to the former. There are good reasons why it may have done so which will be detailed ahead.
13. The facts in PLD 1965 Lah. 394 are almost identical with those of the present case. In this case the Court directed the plaintiff to furnish a security bond which he did but an objection was taken that it was insufficiently stamped. It was fixed for argu--ments on the next date but at the same time the plaintiff sought permission to deposit cash and the Court granted the same. Ultimately the trial Court dismissed the- suit holding that it could not vary its earlier order demanding security and the bond being insufficiently stamped could not be acted upon. Appeal to the District Judge by the plaintiff succeeded and the case was remanded back to the trial Court. The vendee-- defendant as in the present case, went in appeal to the High Court and the learned Single Judge upheld the decision of the trial Court. Apparently this case is on all fours with the present revision but with all respect to the learned Judge who decided the case he has not in my humble opinion correctly laid down the law. He has relied upon AIR 1939 Lah. 452 and AIR 1938 Lab. 605 as well as AIR 19-17 Lab.
721. AIR 1938 Lab. 606 has no application because it does not deal with the power of the Court to vary its order but only relates to a further extension of time by the Court under subsection (5-B). I have already discussed AIR 1938 Lah. 452 and from that discussion it is clear that the learned Judge who decided that case has done so on account of the wording of subsection (5-B). He has nowhere laid down that a Court cannot substitute security for cash. In fact the question before him was quite the reverse. There is another aspect of this ruling which appears not to have been urged before the learned Judge who decided the subsequent case. It was that in this case AIR 1938 Lah.
14. 452, the Court had first ordered the plaintiff to furnish security and then varied it by calling upon him to pay cash. The subsequent order of demanding cash from him may be said to have placed him at a disadvantage and he could rightly come and say that once the Court exercised its discretion fn his favour by not demanding cash but by demanding a bond, the Court should not have on account of the security having become void or insufficient for no fault of his, passed an unfavourable and inequitable order calling upon him to pay cash. It needs no argument to emphasise that giving of a bond as security in a pre-emption suit entails no hardship and inconvenience as compared to a cash deposit. Besides, by case deposit, the depositor loses immediate control over the money and it remains of no practical utility to him during the interval.
15. These deposits which are sometimes huge remain in the treasury and bring no profit at all to the depositor. If he uses this amount in commerce or trade or simply deposits it in a Saving Account in a Bank, he can still earn good profit because it is in our experience that pre-emption suits take years to finalise through different Courts especially where the vendee is in possession.
16. It was urged at the bar that the defendant has an important interest in such matters because the security or the deposit remains in the Court to meet his demands of costs that may ultimately be awarded to him but then the approach of a Court is different from that of the defendant. While the defendant is a partisan who like the Shakespearean Shylock would insist on the "pound of flesh" to satisfy his bitterness generally engendered by bringing of the suit against him, the Court is not a partisan. This section was enacted by the Legislature not to be used as a vehicle of oppression but only to ensure that only bona fide claimants knocked at the Courts for relief. The power therefore, rests with the Court which has to satisfy itself that the plaintiff will ultimately pay the costs, if any, and this satisfaction can be secured either by a demand to deposit cash or by a demand to furnish a bond. The satisfaction being of the Court itself, I think it has every right to vary its order so as to substitute bond for cash because it does not place the plaintiff at a disadvantage and at the same time, it does not in any way affect the substantive rights of the defendant.
17. There appeals to be a colossal prejudice against pre-emptors. Some have gone to the extent of dubbing them as pirates and the general climate in the Courts about them, it must be frankly admitted, is to put it mildly, one of unplea--santness. It is particularly manifested in the matter of compliance or non-compliance with orders passed under section 22. Pirate means a sea robber who takes away others property not only by force but also without paying any price and sometimes the poor owner is also done to death. The rights a pre-emptor enforces are invested in him by the statute which in its turn has behind it a history of several hundred years in the East. It is, therefore, uncharitable to condemn a right granted by a statute as piracy and then to use it as a peg for denying him the equities normally available in the realm of justice. The pre-emptor not only pays a price, sometimes a fancy one but never less than the one prevailing in the market. He enforces his right not by the force of his arm but through the non-partisan administration of justice which not only adjudicates upon his rights but also fixes the consideration for the exercise of such right. He cannot pick and chose but has to accept the whole bargain as it is. Poor creature: He is still condemned as a pirate.
18. Dynasty is a pivot in our social order in the East and the sentiments that spring from it have their own nobility and is one of the important barriers against the flood of Western materialism.
19. Ours is an agricultural economy. People in the villages who constitute 95 % of population are generally descendants of a common ancestor; then again, both in the villages as well as urban areas the word neighbor has far more importance and depth than in the Western hemisphere. Our women observe purdah which does not necessarily mean burqa. Therefore, also the question as to who lives in the neighborhood is of vital importance to those whose neighborhood property is on sale. But for the right of pre-emption, they may get unwanted neighbors who may be unscrupulous or whose neighborhood may interfere with the normal working of their women.
20. Therefore it seems that the pre-emption is not a pirate and the prejudice that confronts him in the Courts is not altogether just or reasonable.
21. Let us now examine the question of the applicability of Court Fees Act or the Stamp Act. There is difference in the law as it stands in force in Azad Jammu and Kashmir as against the law that is in force in Pakistan. Before 1947 we had the J & K Court Fees Act in force in the State which incorporated some of the provincial amendments from here and there. After the establishment of Azad Kashmir Government, the new Regime enforced the original Central Court Fees Act vide section 58 o f the Azad Jammu and Kashmir Courts and Laws Code of 1949 which reads as under :- "Subject to the provisions of section 48 of this Act the Indian Court Fees Act and Suits Valuation Act shall apply to all the suits, appeals and applications."
22. Section 48 relates to the application of Muslim Personal Law in the matter of inheritance, marriage, divorce etc. And has no application to the question involved in this revision. In January 1959 the Azad Kashmir Government replaced most of its original Acts with those in force in West Pakistan but the Court Fees Act was not included in the list. This was commend--able on the part of the Government because the later amendments in the Act in various provinces especially in the Punjab has greatly increased the burden of court-fees on the litigant public which cannot be termed fair. Dispensation of justice in one of the two principal functions of a State; the other being defense against external aggression. To use this supreme duty of a State for revenue raising, does no credit to the modern State.
23. "Bail bonds or other instrument of obligation given in pursuance of an order made by the Court or Magistrate under any section of Criminal Procedure, 1898 or the Code of Civil Procedure, 1908 and not otherwise provided for by this Act."
24. The bond executed in this case, it was urged at the bar, was not one given in pursuance of an order made by a Court under any section of the Code of Civil Procedure. There is no doubt about the correctness of this argument. The bond in question has been given in pursuance of an order made by the Court under section 22 of the Pre-emption Act. What, however, is important and has escaped attention of the learned counsel appearing for the parties before us is that this article in its present shape was substituted by the Amendment Act XVII of 1914. The original article in force before this amendment is reproduced below :- "Bail bond or other instrument of obligation not otherwise provided for by this Act when given by direction of any Court or executive authority."
25. The only condition precedent to its application is that such an instrument of obligation should not be covered by any other provision of the Court Fees Act. In my humble knowledge a surety bond of the type in question here is not covered by any other provisions nor were the learned counsel for the parties B, able to cite any such provision.
26. Now that it has been held that Article 6 of Schedule II of the Indian Court Fees Act requiring a court- fee of 8 annas only is applicable in the case, let us determine as to whether the bond is also liable under the Stamp Act? Mr. A. R.
27. Sheikh, J. Has held in the above quoted ruling PLD 1965 n Lah. 394 that such a bond is liable both under the Court Fees Act as well as the Stamp Act. The learned Judge, however, has neither given any reasons whatsoever for coming to this conclusion nor stated as to which articles of the respective Acts were applicable.
28. There are two Articles namely 15 and 57 whose application to the bond has to be considered by us.
29. The learned counsel appearing for the parties also confined their arguments to these two Articles.
30. Let us first examine Article 15 which is reproduced below :- "Bond (as defined by section 2 (5) not being a debenture (No. 27) and not being otherwise provided for by this Act or by the Court Fees Act, 1870 . . . . ."
31. This Article gives precedence to the Court Fees Act and where the Court Fees Act is applicable, this Article of the Stamp Act does not apply and has to be ignored. As I have already C held that Article 6, Schedule 2 of the Court Fees Act governs the bond in question, I, therefore, hold that Article 15 of the Stamp Act is not applicable.
32. Now coming to Article 57 it is reproduced below :- "Security bond or mortgage deed executed by way of security for the due execution of an office, or to account for money or other property received by virtue thereof or executed by a surety to secure the due performance of a contract . . .
33. This Article when made applicable to a bond pre-supposes the existence of a contract.
34. This Article has come under discussion before various High Courts and the arguments have centered round the word contract used in this Article. Lahore, Nagpur and Sind have treated certain bonds executed under Order XLI, rule 5, C. P. C. As being covered by Article 57 or in other words as a contract within the meaning of Article 57 but the High Courts of Allahabad, Calcutta and Madras have taken a different view and held that such bonds cannot be covered by Article 57 because they do not come within the definition of contract as given in the Contract Act.
35. I have gone through these authorities and would prefer to follow the lead given by ;the Allahabad Full Bench reported as AIR 1931 All.
189. It says :- "In the first place we are unable to hold that there was any such agreement between the subordinate Judge and the judgment-debtor as could amount to a contract. No agree--ment was expressed. The subordinate Judge merely passed the order that execution be stayed upon security being furnished. The transaction purported to be an order and not an agreement or contract . . . . .
36. An agreement amounting to a contract must be entered into by the parties with the object of creating a contractual relation between themselves. In the present case we think it can safely be held that neither the subordinate Judge nor the judgment debtor contemplated that their negotiations should result in a contract between themselves . . . . .
37. The Court in the exercise of its discretion thought fit to grant the application for stay upon being satisfied that the interests of the decree-holder would be adequately safeguarded by the instrument of security. The parties certainly did not purport to enter into a contract with each other and in our opinion they never contemplated the creation of any con--tractual relation between themselves . . . . .
38. An agreement is not a contract unless it is enforceable by law. We presume that the word contract in Article 57 is used in the sense of a contract as defined in section 2 (h), Contract Act, 1872. We think it is clear that the alleged agreement between the subordinate Judge and the judgment- debtor would not be enforceable by law.
39. Then again it is open to a Court which has passed an order for stay of execution under Order XLI, rule 5 to set aside or modify its order by way of review. This is another indication that the Court is not bound by any contract since a contracting party cannot rescind or modify a contract at his own discretion and without the consent of the other contracting party."
40. This Article also came under discussion before a Full Bench of the Madras High Court reported as AIR 1938 Mad. 262.
41. "In circumstances such as these there is nothing in the nature of a contract with the Court."
42. The same view was taken by Calcutta High Court in I L R 1 Cal. 375.
43. The question that now remains for determination is as to whether an insufficiently stamped bond can be acted upon or not or to put it clearly whether the Court can permit the making up of any such deficiency.
44. The Court Fees Act as well as the Stamp Act are fiscal Acts whose object is to seek revenues for the State. It was, therefore, held by their Lordships of the Privy Council in AIR 1918 PC 188.
45. "The Court Fees Act was passed not to arm a litigant with a weapon of technicality against his opponent but to secure revenue for the benefit of the State. This is evident from the character of the Act and is brought out by section 12 which makes the decisions of the first Court as to value final as between the parties and enables a Court of appeal to correct any error as to this only where the first Court decided to the detriment of the revenue."
46. Section 28 of the Court Fees Act has, therefore, given wide power to Courts to allow the making up of such deficiency if any and when that is done, to treat the document as if it had been properly stamped in the very first instance. I, there fore hold that even if there were a deficiency in the court- fee payable on such a bond, the Court ought to in view of the Privy Council ruling call upon the party producing such a bond to make up the deficiency in the court-fees and when that is done, to treat it as if it had been properly stamped in the very first instance as provided by section 28 of the Court Fees Act.
47. I, therefore, reject the revision petition with costs.
48. RAHIM DAD KHAN, J.-[Facts omitted]. The points that are to be determined, while deciding the revision petition, as amplified by reference order, are:
(1) Whether the Court can vary its order calling upon the plaintiff to make deposit of 1/5th of the purchase price?
(2) What Article of the Court Fees Act and Stamp Act applies to the security bond?
(3) Whether a security bond drawn up on an insufficiently stamped paper can be acted upon or not and entails rejection of the plaint?
49. The learned Sub-Judge did not decide the point whether the Court after having exercised option on 18-4-1966 in favor of deposit of the 1/5th of purchase money was competent to alter that order or not and in case it was open to the Court to vary its order for cash deposit, whether the security bond, submitted in response to the subsequent order dated 2-8-66, was sufficiently stamped or not. But instead relying on PLD 1968 Azad J & K 85 (which is not strictly applicable to this case) came to the conclusion that since 1/5th of the purchase money has been deposited and that no definite date was fixed for the deposit of the cash this deposit (on 9-5-69) would be deemed to be within time but he failed to take note of the fact that order dated 18-4-66 for cash deposit had already been substituted for security vide order dated 2-8-66. He seems to be perhaps under the impression that the subsequent order for alteration was without jurisdiction and the order dated 18-4-66 was still subsisting; but that was not so as it would appear from the discussion to which I would revert after considering the implication of the decision of this Court in Said Muhammad Khan v. Muhammad Saeed.
50. The facts of PLD 1968 Azad J & K 85 on which reliance was placed by the trial Court for passing the impugned order were that the plaintiff pre-emptor was ordered to deposit the 1/5th of the purchase price but no definite date was fixed by which the deposit was to be made. On 28-12-66 the next-friend of the pre-emptor filed a security bond for 1/5th of the sale price, the security was rejected and the case was dismissed. On appeal it was held "the order of the trial Court dated 19- 10-66 reads that `1/5th of the purchase price shall be deposited otherwise proper order shall be made'. But the order does not recite --by or on what date the plaintiff is to make the deposit. I agree with the lower appellate Court in holding that the trial Court, in present case, had not fixed a definite date for making deposit and that the plaintiff-pre-emptor cannot be penalized for not making the deposit". That case is distinguishable from the present case on the ground that the order made by the trial Court on 18-4-1966-not fixing a definite date for cash deposit, was, subsequently, on 2-8-66, altered by the Court into one for furnishing security; and that too at the instance of the plaintiff. The security bond submitted by him along with the application was also accepted on 2-8-66. Thus there can be no question of ambiguity or confusion relating the date of furnishing security when the objection was raised in this case. Even the plaintiff in his application for permission to furnish security instead of deposit, nowhere mentioned that there was any misunderstanding about the date of deposit. On the death of the first surety he furnished another security bond. The order for cash deposit made on 18-4-66 was not subsisting at the time objections were raised. The order for cash deposit of 1/5th of the purchase price was never altered into one for security in that case as was done in this case. Thus it would appear that PLD 1968 Azad J & K 85 does not deal with any one of the objections raised in this case and cannot be said to have any bearing on the facts of this case. The order, for cash deposit, in Said Muhammad Khan v.
51. Muhammad Saeed's case was never altered by the Court on fresh exercise of option, while, it was changed in the present case, into one for furnishing security, on exercise of fresh option, on 2-8-66.
52. The question that requires determination in this case was whether on 2-8-66 it was open to the trial Court to exercise a fresh option and to demand a security bond when it had already exercised its option once in favour of deposit of 1/5th of the sale price vide order dated 18-4-66 which question was not disposed of by the trial Court and is now referred for the determination of this Bench.
53. Sardar Said Muhammad Khan learned Advocate for the petitioner contended that it is open to the trial Court under the provisions of section 22 (1), Punjab Pre-emption Act to demand either cash or security from the pre-emptor but once the option has been used in favour of either, it is not open to a Court, afterward to alter the same. He in support of his argument cited PLD 1965 Lab. 394. This judgment on appeal before the Supreme Court was reversed in PLD 1967 SC 418.
54. The facts of PLD 1967 SC 418 were that one Mian Bashir Ahmed sold certain land in favour of Akhtar-ul-Islam on 11-4-1958. Zulfiqar A.I, who pre-empted the sale by a suit instituted on 17-3-1959, was ordered on 14-5-59 to furnish security by 30-7-59. On that date of hearing an objection about the sufficiency of duty on the security bond. Tendered in response to the previous order, was taken by vendee and the case was adjourned to I1-9-1959 for hearing arguments on that but immediately after that the plaintiff, at his own request, was allowed to deposit Zer-e-Panjum in cash by next date. In compliance of that order cash was deposited on 2-9-59. Vendee filed a revision petition which was dismissed in limine.
55. However, the vendee raised objections before the trial Court as well that since the order for furnishing security bond has not been complied with, the plaint was liable to rejection, under section 22 (4), Pre-emption Act. The trial Court accepting the plea of the vendee rejected the plaint.
56. The plaintiff filed an appeal before the District Judge who accepting the appeal reversed the order of the trial Court and remanded the case back. Vendee then preferred an appeal before the High Court which was decided on 21-4-65 and is reported as PLD 1965 Lab. 394.
57. Mr. Justice A. R. Sheikh accepting the appeal of the vendee set aside the order of the first appellate Court and restored the order of the trial Court. The plaintiff went in appeal before the Supreme Court. The question involved in that case in their Lordships' words was: "The true question that arises in this case is whether on this 30th July 1959, in the circumstances then existing, it was open to the Court to exercise a fresh option whether to demand a cash deposit or security."
58. Mr. Justice A. R. Sheikh with reference to the validity of the order allowing deposit of Zer-e-Panjum on a extended date relied on two decisions of the High Court; namely, AIR 1938 Lab. 452 and AIR 1938 Lab. 606. Their Lordships of the Supreme Court noting that AIR 1938 Lab. 452 was distinguish-- able from the case before them held :- "The terminal date fixed by section 22 (1) for furnishing either a cash deposit or security had already elapsed, and therefore it was not open to the trial Court at the stage when the security became void to exercise a choice between cash and security. That is not the case here, as it appears that issues in the case have not yet been settled."
59. With regard to Zorawar Singh v. Jasbir Singh (AIR 1938 Lah. 606) it was remarked that that was not strictly relevant. Their Lordships after careful consideration of this question and authorities bearing on the point and the relevant wording of sections 22 (1) and 22 (4) came to the conclusion: - "That such a power does exist, but it must be exercised before the settlement of issues, and it must be exercised expressly. That view is supportable upon a consideration of the wording of subsections (1) and (4) of section 22, Punjab Pre-emption Act (I of 1913) There is nothing in subsection (1) to indicate, that the choice can be made only once in a suit. It is well-known that the requirement of a cash deposit or security contained in the subsection is intended to guard against vaxatious and mala fide litigation, and thus to guarantee a vendee against frivolous proceedings on the part of possible pre-emptors. The deposit is a token of good faith, and equally the security for the full amount of the purchase price constitutes a guarantee that plaintiff will meet whatever demand is made for money in case his suit succeeds. The furnishing of a guarantee in one or the other from is made obligatory by subsection (1), but the subsection contains no words to indicate that the choice between the two forms of guarantee can only be made once, and so far as the safeguard of the interests of the vendee is concerned, the two guarantees are to be placed on a level. An indication that the law does not impose so strict a condition that a form of guarantee once chosen cannot be altered by the trial Court within the time permitted is to be found in the wording of subsection (4)."
60. Their Lordships in this case further held that: --- "The language used in subsection (4) appears to leave open to the Court under subsection (4) the same choice as the Court could exercise at the earlier stage under subsection (1). In this case, the time for making a choice had not expired, so it could not be said that the option was no longer alterable. By an order in writing, the trial Court purported to vary its original order for security and replace it by the alternative order that the law allowed, for the making of a deposit within a certain time, and a deposit was duly made."
61. Therefore, respectfully agreeing with their Lordships of the Supreme Court in PLD 1967 SC 418 I hold that it is open to the Court to vary its order for deposit or security as the case may be, but this option can be exercised before the settlement of issues after which, the stage for exercise of option comes to an end.
62. As issues have not been settled as yet in this case, it was open to the Court to vary its previous order on exercise of fresh option and replace the same for security. Accordingly I cannot agree with the contention of the learned counsel for the petitioner that the Court after having made an order for cash deposit on 18-4-66 had no power to alter the same by substituting it for security.
63. The next question for determination that arises is whether the trial Judge by order, dated 9-6-69 has varied his previous orderpassed by him on 2-8-66 for furnishing security instead of cash deposit and replaced it for the order for cash deposit. The perusal of order dated 9-6-69 does not reveal that any order in express terms was made by the trial Court altering the previous order for furnishing security made on 2-8-66. The order for cashdeposit made on 18-4-66, in view of the subsequent order for security was not subsisting.
64. The next question is what duty, if any, is chargeable under the Court Fees Act or Stamp Act. First it would be seen whether the security bond filed in the Court under the provisions of section 22 (1), Pre-emption Act is chargeable with duty under the provisions of Court Fees Act. The only Article that can possibly be applicable is Article 6, Schedule II. No other Article of the Court Fees Act has been suggested under which the instrument in question can: chargeable with duty under the Court Fees Act. Article 6 of schedule II reads :- "Bail bonds or other instrument of obligation given in pursuance of an order made by the Court or Magistrate under any section of Criminal Procedure, 1898 or the Code of Civil Procedure, 1908 and not otherwise provided for by this Act."
65. This Article expressly lays down, the court-fees, payable on bail bond or other instruments of obligation given in pursuance of an order made by a Court under Criminal Procedure Code or Civil Procedure Code. It does not cover a bond executed in pursuance of an order made by a Court under other Acts) than the two Codes for the following reasons :- Court-fee is a fiscal statute and is to be interpreted strictly. It is a well recognized rule of interpretation that while construing Court Fees Act one can only look "fairly on the language used."
66. We must find the words in the Act to impose tax. If no words E are found in the statute, in force at a time, tax could not be imposed by reference to pre-existing law that has been repealed or on the basis of analogy.
67. "As I understand the principle of all fiscal legislation, it is this: if the person sought to be taxed comes within the letter of the law, he must be taxed, however, great the hard--ship may appear to the judicial mind to be. On the other hand, if the Crown seeking to recover the tax, cannot bring the subject within the letter of the law, the subject is free, however apparently within the spirit of the law the case might otherwise appear to be. In other words, if there be admissible, in any statute, what is called an equitable construction, certainly such a construction is not admissible in a taxing statute where you should simply adhere to the words of the statute."
68. There is no power to apply Analogy in court-fees matter and nothing can be implied.
69. "Article 6 of Schedule II, Court Fees Act only refers to the bail bond or other instrument of obligation given in pursuance of an order made by a Court or Magistrate under any section of the Criminal Procedure Code or Civil Procedure Code. A bond given under the Guardians and Wards Act by a person as guardian of the estate for a minor in accordance with order of the Court is covered by Article 57 of the Stamp Act and not by Article 6, Court Fees Act."
70. Whether a bond executed in response to an order of the Court n under Pre-emption Act is chargeable with duty under Article 57, Stamp Act or some other Article of the Stamp Act is a separate question to which 1 would revert shortly, but one thing becomes quite clear from this ruling that Article 6 covers only those bonds that are submitted in pursuance of an order made under either of the Code; and to no other bond, because the express words of the Article 6 do not cover such bonds that are executed under section 22 (1), Pre-emption Act.
71. Charge upon subject cannot be extended by implication. It is, therefore, held that a bond executed by a person in response to an order made by a Court under section 22 (1), Pre-emption Act is not covered by Article 6, Schedule II, Court Fees Act. There is no other positive provisions of the Court Fees Act that renders, such an instrument of obligation, or bond tendered in response c to an order of the Court made under section 22 (1), Pre-emption Act, liable to duty. As there is no positive provision in the Court Fees Act for the levy of any court-fee on such bond it is, therefore, held that no court-fee is payable on a security bond executed under the order of a Court made under section 22 (1), Pre-emption Act.
72. The next point that requires determination is whether the instrument in question is chargeable with duty under Stamp Act and if so, under what Article of that Act.
73. For the purpose of stamp duty under Stamp Act it is the substance that is more important. The class of the instrument in question, therefore, is to be determined, according to the substance and not by common nomenclature. The instrument under question guarantees the payment of the costs to the vendee. The amount secured under the deed is Rs. 1,600 which the executants obliges himself to pay to the vendee. In other words it creates an obligation to pay money for discharge of the costs. The obligation being express so the document is a `bond' not only by its nomenclature but also on account of H the substance and is clearly covered by the definition of `bond as given in subsection (5) of section 2, Stamp Act, which reads as follows :-- "Bond includes-
(a) any instrument whereby a person obliges himself to pay money to another, on condition that the obligation shall be void if a specified act is performed, or is not performed, as the case may be;
(b) any instrument attested by a witness and not payable to order or bearer, whereby a person obliges himself to pay money to another; and
(c) any instrument so attested, whereby a person obliges himself to deliver grain or other agricultural produce to another."
74. This definition of the bond is very extensive and covers number of instruments such as Administrative Bond Article No. 2, bond if a not otherwise provided Article No. 15, Bottomery Bond Article No. 16, Custom Bond Article No. 26, Indemnity Bond Article No. 34, Respondentia Bond No. 56 and security Bond No. 57. These bonds, according to the substance, are liable to duties under different Articles.
75. The instrument in question is clearly a security bond so it must be chargeable either under Article 57 or 15 No other Article has been suggested at the time of arguments as possibly applicable.
76. Article 15 is a residuary Article and would apply only to such bonds which are not otherwise provided by Stamp Act or Court Fees Act. I have held above that this bond is not chargeable under Court Fees Act. The other Article that requires consideration before applying Article 15 Is Article 57 which reads :- "Security bond or mortgage deed executed by day of security for the due execution of an office, or to account for money or other property received by virtue thereof or executed by a surety to secure the due performance of a contract.--- This Article would apply to bonds as well as mortgage deeds when executed for any of the purposes that are specified in this article. In other words this article would apply only to those security bonds that are executed for any one of the following objective:
(a) due execution of a office;
(b) to account for money or property received; and
(c) due performance of a contract.
77. Bombay High Court has applied this article to a bond given by a guardian appointed under the Guardians and Wards Act. (AIR 1940 Born. 275). That was correct as the and was by a guardian or duly accounting for the money received by virtue of his office as guardian. No such obligation is involved in the case before us. The document, clearly does not fall under either of the first two purposes; namely due execution of an office or to account for money received.
78. Whether this bond is for due performance of a contract, one of the purpose specified under Article 57, or sot there has been conflict of decisions as .To the construction Of the phrase `the due performance of a contract. In our opinion this article would not apply because the bond is not executed for any of the purposes specified therein. The transaction cannot be held as contract for simple reason that the Court is not a juridical person negotiating contracts with the parties. Tie point has been thoroughly discussed in AIR 1931 All. 189 and it has been held that `there is no provision in the Civil Procedure Code or any other statute empowering a Judge to enter in a contract on behalf of the Secretary of the State. The Col is are given statutory powers to pass decrees and orders aal to perform certain acts but not to enter into contracts. After considering various authorities bearing on the point I am inclined to agree with the view taken by the Allahabad High Court irk I R 1931 All. 189 and I, therefore, hold that the obligation under, the bond not being for performance of a contract. Article 57,j would not apply to the document in question It may be pointed out that the duty under Article 57 is the same as the duty for a bond under Article 15.
79. It has been held above that the bond in question is not chargeable with duty under Court Fees Act.
80. It is not chargeable with duty under Article 57 of the Stamp Act and also it is not chargeable as administrative bond under Article 2 or as Bottomery bond under Article 16 or indemnity Bond under Article 24 or Customary Bond 26 and Respondentia No. 5 6. Therefore, it is chargeable with duty under Article 15 which is a residuary article and applies to bonds which are not chargeable under above mentioned Article or any other Article. Article 15 reads as under: "Bond (as defined by section 2 (5)) not being a debenture (No. 27) and not being otherwise provided for by this Act or by the Court Fees Act, 1870 . . . . "
81. The duty under Article 15 is ad valorem. When the amount or value secured does not exceed Rs.
82. 1,000 the duty chargeable is Rs.
5. For every Rs. 500 in excess of Rs. 1,000 the duty is Rs. 2.50. Thus a security bond executed under the provisions of section 22 (l ), Pre-emption Act guaranteeing the payment of Rs. 1,600 as costs is liable to a duty of Rs.
10. The document in question has been drawn up on a stamp duty of Re. 1 only and as such there is deficiency of Rs. 9.
83. The next point is whether a document which is insufficiently stamped can be acted upon or not? In case of deficiency of court-fee section 28 of that Act lays down that :- "No document which ought to bear a stamp under this Act shall be of any validity, unless and until it is properly stamped.
84. 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 or such Court, may, if be 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."
85. The document in question, as I have held above, is not liable to court-fee therefore the question of deficiency of court-fee is not relevant in this case. However, for academic interest it may be stated that under provision of section 28 document can be acted upon if the deficiency is made up within time fixed by the Court.
86. With regard to the deficiency of stamp duty there is a similar provision detailed in section 35 of the Stamp Act which reads "No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped.
87. Provided that-
(a) any such instrument not being an instrument chargeable with a duty of one anna or half an anna only, or a bill of exchange or promissory note, shall, subject to all just exceptions, be admitted in evidence on payment of the duty with which the same is chargeable, or in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion." proviso (a) allows subsequent stamping on payment of penalty which is subject to a minimum of Rs. 5.
88. It has been contended by Mr. Said Muhammad Khan that proviso (a) to section 35, Stamp Act does not apply to security bond, as no question of admissibility of the document is involved. According to him proviso (a) would apply only to those documents that are to be received in evidence and no other documents. I cannot agree with him because proviso (a) is co-extensive with the main provision of section 35 just as no instrument chargeable with duty can be admitted into evidence or acted upon, registered or authenticated so the proviso stipulates that if there is no proper stamp or there is deficiency of the stamp that may be affixed afterwards un payment of penalty anna the instrument alter payment of the duty and penalty becomes effective and can be acted upon, I am fortified in this view by AIR 1924 P C 221 wherein it is held :- "The proviso (a) of section 35 is of equal ambit with the body of the section, and just as an instrument cannot be acted upon, that is to say, nothing can be recovered under it, unless it has a proper stamp, so the proviso provides that if there is not a proper stamp it may be put on afterwards on payment of a penalty and the instrument then becomes effective."
89. I, therefore, hold that the document in question though insuffi--ciently stamped can be acted upon on payment of duty and penalty for deficiency and afterwards on payment of penalty and duty it would become effective.
90. The not result is that accepting the revision petition I modify the order of the trial Court and remand the case with the directions that the plaintiff shall be required to make up the deficiency of stamps on payment of penalty by a date to be fixed by the trial Court. If he fails to make payment of the penalty and duty by that date the suit shall stand dismissed.
91. As the question involved was not free of difficulty I leave the parties to bear their own costs of the revision petition.
92. Per MUHAMMAD SHARIF, C. J. -I have perused the judgments written by my learned brothers. I agree with the view expressed by my learned brother Mr. Justice Chaudhri Rahim Dad Khan.
93. The reply to the Reference shall be in the majority view.