AJMAL MIAN, J.---This is a petition for leave to appeal against the judgment dated 18-10-1992 passed by a learned Single Judge of the High Court of Sind in First Appeal No. 42 of 1990, filed by the petitioner against the judgment dated 13-8-1990 of the learned IInd Additional District Judge, Badin, in Land Acquisition Suit No. 1 of 1985, modifying the Award by inter alia increasing the amount of compensation for the land acquired from Rs.40,000 per acre to Rs.1-,00,000 per acre, dismissing the same for the , following reasons:-- "In view of the above discussion, it can be concluded that the present appeal was instituted with deficit court-fee stamp and the appellant being negligent and his conduct being contumacious, there existed no reasons to show any indulgence to him and allow the the. The subsequent payment of court-fees stamp beyond the period of limitation would not render this appeal as properly instituted.
I would accordingly hold the appeal to be barred by limitation under Article 156 of the Limitation Act. There is no need to go into merits of the case. Accordingly, the appeal is dismissed with no order as to costs. "
2. The brief facts are that suit agricultural land measuring 5.09 acres was acquired by the Government for digging oil well by Union Texas Pakistan (respondent No.3) under the Land Acquisition Act, 1894, hereinafter referred to as the Act. The Collector/Land Acquisition Officer, Badin, made the award on 16-10-1985, whereby he awarded compensation at the rate of Rs.40,000 per acre with 25 per cent. Compulsory allowance. 15 per cent. Additional compensation and 6 per cent. Interest from 2-6-1983. Upon the request of owners of the land, the matter was referred to the Additional District Judge, Badin, under section 18 of the Act. The learned Additional District Judge, on the basis of pleadings of the parties, framed eight Issues. After recording evidence and hearing the parties, he modified the Award in the following terms:-- "From my findings to Issues Nos. l, 2 and 7 as above and sukeeping all considerations in view, I hereby set aside the rate of compensation as per Award and assess the compensation at the rate of Rs.1,00,000 (One lac) per acre, which is reasonable value, plus Rs.6,200 as cost of 62 trees.
Claimants are also entitled for 25 % as Compulsory Allowance on the total cost of land and trees, plus 15 % per annum as additional compensation and 6 % per annum interest with effect from the date of acquisition of land till the final payment is made. However, the amount already received by claimants may be excluded. The compensation amount be distributed to the legal heirs of Haji Abdul Shakoor and to the plaintiff No.2 according to their shares. The claim is decreed accordingly.."
3. It appears that against the above judgment/decree of the learned Additional District Judge, the petitioner filed above first appeal on 30-10-1990 by affixing Rs.10 court-fee stamp, instead of affixing court-fee stamp on the basis of ad valorem court-fee payable on the decretal amount. It sees that the owner/respondents filed a counter-affidavit on 13-1-1991, in which inter alia they raised the following pleas:-- "5. That the appeal is not properly valued and the memo. Of appeal is written upon the paper insufficiently stamped, therefore, the appeal is not properly instituted in the eye of law and the same may be dismissed.
6.
7. That since the appeal is not properly stamped, therefore, the same has become barred under the provisions of Limitation Act. "
It appears that the petitioner filed a rejoinder on 17-2-1991, para.7 of which dealt with the contents of parsa. 5, 6 and 7 of the counter-affidavit as follows:-- "7. That the contents of paragraphs 5, 6 and 7 of the counter-affidavit are denied. It is denied that the appeal is either not properly stamped or has become the-barred or is not properly instituted. It has been properly instituted as aforesaid."
4. It further seems that on or about 21-3-1991, the petitioner filed an application under section 149, C.P.C. Read with section 151, C.P.C. With the prayer to allow them to make up the deficiency of the court-fee in the memo. In para.4 of the supporting affidavit, the following averments were made:-- "4. That as abundant precaution the appellant seeks permission of this Hon'ble Court to make good the deficiency in court-fee, if any."
5. The above application was allowed subject to all just exceptions. According to the learned counsel for the petitioner, factually the petitioner deposited the deficit court-fee on 21-3-1991. Be that as it may, when the above appeal came up for hearing before the learned Judge in Chamber, inter alia the question of deficit court-fee and its effect was agitated. The learned Judge in Chamber dismissed the above appeal for the reasons stated in the abovequoted portion of the impugned judgment. The petitioner has, therefore, filed the present petition for leave to appeal.
6. In support of the above petition, Mr. K.M.A. Samdani, learned Sr. A.S.C. Appearing for the petitioner, has vehemently urged that the impugned judgment is contrary to the dictum laid down by this Court in the case of Siddique Khan and 2 others v. Abdul Shakur Khan and another (PLD 1984 SC 289). He has very ably analysed the various legal propositions discussed in the above report. The thrust of his arguments was that the petitioner's above appeal could not have been dismissed on the ground of payment of deficit court-fee after the expiry of limitation period, as the ratio of the above case is that the provisions of Order VII, Rule 11(c), C.P.C. Are applicable to a memo of appeal and that the question of non-payment of full court-fee, is a matter between a litigant and the State and not between the parties to the litigation and, hence, respondents Nos.1 and 2 could not have taken advantage of the above omission on the part of the petitioner. His further submission was that since respondents Nos.1 and 2's appeal is still pending before the High Court and as the petitioner had already paid the deficit court-fee, the above petition be converted into an appeal and the case be remanded to the High Court for hearing of the appeal on merits alongwith respondents Nos. l and 2's appeal
7. At this juncture, we may refer to the above provisions of Order VII, Rule 11(c), C. P. C., which reads as follows:-- "11. (a) ...........................................
(b) ................................................
(c) 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 the to be fixed by the Court, fails to do so;
(d) ................................................
A perusal of the above provision indicates that a plaint under the above provision of the C.P.C. Can be rejected in case the plaintiff, on being required by the Court to supply the requisite stamp fee within a the to be fixed by the Court fails to do so not otherwise.
8. The question in the above Siddique Khan's case was the interpretation of the above provision and in that context, various observations have been made. There is no doubt that section 107, C.P.C.
Confers same powers on an Appellate Court which are enjoyed by the Court of original jurisdiction in respect of suits. In other words, if a trial Court rejects a plaint on the ground of failure to supply requisite court-fee without complying with the requirement of above clause (c) of Rule 11 of Order VII, C.P.C., an Appellate Court can call upon the plaintiff to supply the requisite stamp fee within the the to be fixed by it, but there is no such requirement under Order XLI or any other provision of the C.P.C. Relating to filing of an appeal. If an appellant files an appeal with the deficit court-fee, the Appellate Court under section 149, C.P.C. Can extend the the and if the is so extended, the question of limitation will not arise but if the Appellate Court finds that the appellant is guilty of contumacy or he acts in a positive mala fide manner in regard to deficient court-fee, it may decline to exercise discretion on that ground in favour of the appellant. The above legal position has not been changed by above Siddique Khan's case even in respect of the suits. In this regard, it may be pertinent to quote the relevant portion of the judgment, which reads as follows:-- "The combined effect of the rule laid down by this Court in the case of Muhammad Nawaz Khan and Shah Nawaz would thus be that in cases of deficient court-fee which would include in the context of now amended law, certain exemption in this behalf, the Court on discovery of an omission, error in valuation of deficiency in court-fee, shall acting under Order VII, rule 11 (b) and (c) allow the to the plaintiff to make correction and supply the deficiency. If he does so then the plaint shall be deemed to have been validly filed on the date of the original presentation notwithstanding the fact that the court-fee was supplied after the expiry of the period of limitation. If, however, the plaintiff is guilty of contumacy which terms would be separately explained hereinafter and/or commits positive at of mala fides the plaintiff could be held disentitled to further exercise of discretion under section 149 read with section 148, C.P.C.
Contumacy in the context is used in the general dictionary sense and not as a word of at. It means contempt of lawful authority, obstinacy, or stubbornness. It is not difficult to discover the connation of these attitude with the subject under discussion. If a plaintiff is allowed the to supply the deficiency in court-fee under Order VII, rule 11(c) as a matter of course and obligation (because, the rejection of plaint cannot take place without doing so) then in case he fails to do so, and asks for more the without some justification, it would amount to his being obstinate and stubborn in ignoring or denying the requirement and authority of law. The repetition of such a conduct would amount to contumacy. Similarly interpretation of this word in Sohara v. Rashid Ahmad (PLD 1981 Lah. 261) by Aftab Hussain, J., (as he then was), is approved.
Mala ides have also to be understood in accordance with the well---known principles laid down by this Court from the to the. In Federation of Pakistan v. Saeed Ahmad (PLD 1974 SC 151) it was equated with bad faith. And 'bad faith' was equated with 'malice in fact', the nature and connotation whereof would depend upon the circumstances of each case and the situation vis-a- vis the personal motives involved. When a thing is done in bad faith against another party concerned in a lis it can partake of 'wrongful loss' or 'wrongful gain'; but if none of the other parties to the lis is involved and the at of bad faith is regarding revenue of the State, then it will not ordinarily reflect on the lis between the parties directly. For example in case of public revenue some bad faith, will be projected in an attempt to save money (simpliciter) but 'positive' mala fide as the phrases as has been used in these cases means- more than that, involving vivid consciousness that it is fraudulent. And the same again would depend upon the circumstances of each case."
9. In the present case, the petitioner had filed first appeal against a money decree. There does not exist any doubt as to the question of payment of court---fee, as it is to be paid ad valorem on the decretal amount. But the petitioner, in spite of the above clear legal position, opted to file the appeal with Rs,10 court-'fee. Even after the objection was raised by respondents Nos. l and 2, the petitioner in the above-quoted para.7 of the rejoinder, took the plea that no court-fee was payable though after the expiry of more than one month, he paid the deficit court-fee as a measure of abundant caution. In our view, the learned Judge in Chamber was justified in concluding that the petitioner was negligent and his conduct was contumacious and there existed no reason to show any indulgence to him to extend the the. We do not find any infirmity in he impugned judgment.
Leave is, accordingly, refused.