' This appeal under section 96 of the Civil Procedure Code is directed against the judgment and decree, dated 12-6-1997 passed by the learned District Judge, Pishin whereby the suit filed by the appellant was dismissed on the ground that ad valorem court-fee has not been affixed on the plaint.
2. The facts relevant for disposal of this appeal are that the appellant filed a suit for possession through pre-emption against the respondents in respect of property bearing Khewat No,2, Khatooni No,2 situated in Mahal Karez Noor Khan, Mauza Nagangai, Tappa Ziarat, Thesil Barshoar, District Pishin measuring 107 rods, 10 poles (hereinafter referred to as the property in dispute), in the Court- of Senior Civil Judge, Pishin. The respondents filed their written statement and contested the suit. Amongst other grounds it was objected that the suit is liable to be dismissed for deficiency of court-fees. It was further objected that the property in dispute was sold at Rs,2,50,000 but the plaintiff had not affixed the required court-fees. The learned Senior Civil Judge, Pishin after hearing both the parties, directed the petitioner to deposit court-fees within a period of one week, vide order, dated 13-10-1996. Being aggrieved from the said Order, a Civil Revision was filed before the District Judge, Pishin who dismissed the same vide Order, dated 12-5-1997, and remanded the case to Senior Civil Judge, Pishin. The learned Senior Civil Judge, Pishin dismissed the suit of the appellant for want of proper court-fees vide Order, dated 12-6-1997; hence this appeal.
3. I have heard Mr. Tariq Mehmood, Advocate for the appellant and Mr. Hashim Kakar, Advocate for the respondents and Mr. S.A.M. Quadri, Advocate, Amicus Curiae on Court notice.
4. Mr. Tariq Mehmood, Advocate for the appellant contended that the learned Senior Civil Judge, Pishin without determining the actual amount of court-fees, could not have dismissed the suit. The learned counsel further agitated that when the impugned orders were passed, the learned Additional District Judge, Pishin namely Mr. Abdullah Khan, was acting as District Judge and was holding additional charge of Senior Civil Judge also. He further contended that the order, dated 12- 5-1997 and the order, dated 12-6-1997 were passed by the same Presiding Officer in the capacity of District Judge and Senior Civil Judge, Pishin.
5. Mr. Hashim Kakar, Advocate for the respondents contended that there was no question of determination of court-fees as the same had already been determined by the Provincial Government vides amendment, dated 21st June, 1988. He further argued that the appeal before this Court was not competent as pecuniary jurisdiction of the District Judge in respect of the appeals was up to Rs,5,00,000 in view of section 18 of the Civil Courts Ordinance, thus, the appeal should have been filed before the District Judge.
6. I have heard the learned counsel for the parties and the learned Amicus Curiae Mr. S.A.M. Quadri, Advocate.
7. Before dilating upon the arguments of the learned counsel for the parties, it is appropriate to deal with the arguments of Mr. S.A.M. Quadri, Advocate, the learned Amicus Curiae who stated that the question of court-fees has been determined by the Provincial Government in respect of suit for possession of immovable property. The arguments of Mr. S.A.M. Quadri and Mr. Hashim Kakar, Advocates are the same which will be taken up at a later stage.
8. Reverting to the arguments of Mr. Tariq Mehmood, Advocate that the learned Senior Civil Judge, Pishin had wrongly dismissed the suit of the appellant as the question of court-fee had not been determined; the learned counsel referred to the section 7(v)(a) of the Court Fees Act which reads as below:--- "Where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government or forms part of such an estate and is recorded in the Collector's register as separately assessed with such revenue, and such revenue is permanently settled ten times the revenue so payable;"
9. In view of the aforesaid clause, the learned counsel stated that the court-fees payable on the plaint was ten times the revenue paid on the property in dispute and further stated that in view of the aforesaid clause, the learned Senior Civil Judge should have determined the amount of court- fees and without determining the amount of court-fees, dismissal Order was without jurisdiction.
10. Mr. Hashim Kakar, Advocate vehemently opposing the arguments of Mr. Tariq Mehmood, Advocate referred to Ordinance IX of 1981 Balochistan Finance Ordinance wherein section 7(v) of the Court Fees Act was amended which reads as follows:--- "In suits for the possession of a land, house or garden---according to the value of the subject- matter and the market value of the land, house or garden shall be deemed to be such value;"
11. Mr. S.A.M. Quadri, Advocate, the learned Amicus Curiae also adopted the same arguments and stated that the court-fee payable on the suit for possession was to be determined on the basis of its market value.
12. From the perusal of the amendment quoted above it transpires that the suit for possession of land, house or garden has to be valued on the market value of the land. The arguments of Mr. Tariq Mehmood, Advocate for the appellant have no force that court-fees should have been determined by the learned Senior Civil Judge before dismissing the suit. In view of the amendment made in section 7(v) of the Court Fees Act it has become clear that court-fee for the suit for possession of immovable property has to be calculated on the market value of the land; thus, it is held that the court-fees for possession of immovable property has to be determined on the basis of prevailing market value of the land at the time of filing of the suit. From the perusal of the order, dated 12-5- 1997 passed by District Judge, Pishin it has been clearly held that the court-fee has to be calculated on the basis of market value of the property in dispute. Thus, the question of court-fee was determined by the learned District Judge, Pishin.
13. Now adverting to the question that the learned Additional District Judge who passed the impugned Order while holding the charge of Senior Civil Judge, Pishin was biased, it may be observed that the learned Senior Civil Judge, Pishin vide Order, dated 13-10-1996 directed the appellant to make good the deficient amount of court-fees and as required under Order 7, Rule 11, the appellant was given one week's time to make good the deficiency in the court-fees. The appellant did not comply with the Order of the Court rather filed a revision before District Judge, Pishin. The said Revision was heard on merits and dismissed vide order, dated 12-5-1997 and the question of payment of court-fees was also determined. After remand the appellant failed to make payment of the deficient court-fees and no application for extension of time for payment of court- fees was made. Thus, in my considered opinion the learned Senior Civil Judge, Pishin rightly dismissed the suit. As mentioned above the appellant was given sufficient time from 13-10-1996 up to 12-6-1997 to make good the deficient court-fees but he wilfully did not comply with the Order of the Court; thus, there is nothing on record to show that the Order, dated 12-6-1997 is based on mala fides rather appellant has been guilty of contumacy by non-complying with the Order of the Court.
Thus, in my view the plaintiff was no more entitled for indulgence by the learned Senior Civil Judge, Pishin, thus, the suit filed by the petitioner was rightly dismissed. In similar circumstances, the question of contumacy and mala fides in non-payment of court-fees was decided by the Hon'ble Supreme Court in the case of Siddique Khan and 2 others v. Abdul Shakkoor and another, PLD 1984 SC 289 wherein it was held:--- "It has been held in the afore-analysed cases it is obligatory to grant time for supply of deficiency in court-fee before rejecting the plaint under Order VII, Rule 11(c). It is discretionary, however, to grant time under section 149, C.P.C. As has already seen when explaining contumacy, it is not lawful to reject a plaint under Order VII, Rule 11(c) without first granting time to the plaintiff to supply the deficient court-fee. Order VII, Rule 11 is in a way a penal provision and shall be construed strictly so as not to be resorted to unless the conditions for exercise of such drastic powers are satisfied. In the clause relevant here namely (c) it is provided that the plaint shall be rejected there under only when after the grant of requisite time the plaintiff has failed to supply the required/specified court- fee. Thus, it is mandatory and obligatory for the Court to grant time under clause (c). The question of discretion does not arise. And it is so whether the occasion arises at the very institution of the plaint or at a later stage. If as afore-explained time is to be allowed as an obligation under Order VII, Rule 11(c), then the question arises as to how the 'discretion' element in section 149, C.P.C. Or for that matter section 28, Court Fees Act can be interjected in it. It cannot be.
' In some cases difficulty was felt regarding the use of the word "discretion" in section 149, C.P.C. But it was not realized that the time granted under this provision in exercise of discretion are granted as an obligation under the other namely Order VII, Rule 11(c) would lead similar consequences. Can it be said that if time is granted as a discretionary measure the party concerned will get the advantage mentioned in second part of section 149, C.P.C., but if it is granted by the Court as its obligation it will lose that advantage. The answer would be in the negative. Therefore, when time is granted as an obligation under Order VII, Rule 11(c) it is granted nevertheless for supply of deficient court-fee which being the main object of section 149, C.P.C., the advantages thereunder will be available to the beneficiary of the exercise of the obligation also. The further question as to why then the word 'discretion' is used in section 149, cannot detain us any longer. There are other occasions for supply of court-fee stamps under the C.P.C. For example under sections 20 to 27 of the Court Fees Act and read with the relevant provisions of C.P.C., require the deposit of requisite stamps for issuance of the process. Court might have to exercise discretion in those and other matters for allowing time in this behalf and the consideration of obligation as under Order VII, Rule 11(c), would not be attracted thereto.
' Same would supply to the advantage under certain provisions of the Court Fees Act including section 28 thereof. But it is necessary here to deal with the other relevant provisions of Court Fees Act also in the restricted context of the present discussion.
' It is true that the 'documents' mentioned in various sections including sections 4 and 6 cannot be filed/received unless "proper-fee" is paid, therefore, section 28 is a general consequential and remedial but residuary provision in that behalf; but 'proper' stamp is the subject thereof. There is no water-tight compartlisation that is the duty only of the litigant to look into the what is the proper fee or proper stamp and not of the public functionaries concerned. Where one's duty ends the other's starts. It is also not difficult to visualize that the 'obligation' and ' function' are complementary to each other. It is in that sense that the phrases 'proper fee' and 'proper stamp' are to be construed. If the Court has enough time, it would perform the function immediately on presentation of the document. But the Legislature would be deemed to have known the difficulties and shortcomings. Hence sections 9 and 10 was enacted to help the litigants in some types of cases through an investigation about the proper court-fee. It would in these as also in other cases take time. And in many cases the period of limitation would pass. But notwithstanding the same, there is no provision in the entire act that the litigant is to be penalized for delay by way of dismissing the case as time-barred. Instead section 12(1) shows that the matter is one of the purely fiscal nature and must end as soon as possible and under section 12(2) the revenue in case of deficiency can be collected even by the Appellate Court without resort to the (retrospective) dismissal of the plaint as time-barred. When the deficiency regarding the court-fee payable at the trial stage is discovered during the appeal, the party is to be allowed time to supply the deficiency even at the stage, it is only on his contumacy at that stage also that the consequence like that of non-prosecution as provided under section 10(ii), shall ensue. Then and then only the plaint shall be dismissed on account of such non-compliance with the order of the Appellate Court. If, however, he pays no such consequence would follow regarding any earlier stage-say of the trial proceedings, notwithstanding the fact that they were conducted throughout (according to the findings under section 12(ii) without payment of the proper court-fee. If time would have been the essence of the consideration of the consequence of non-payment of 'proper-fee' the dismissal of suit for non-prosecution at the earlier stage would have been accomplished through the appellate forum without affording opportunity of deposit. But that it is not visualized by section 12(ii) when read with section 10(ii) the latter also providing that the proceedings shall be stayed till the payment of the proper fee. If it is paid within the fixed time no injurious consequence shall ensue and the matter would end. If, however, it is not paid within the time allowed it shall be dismissed for non-prosecution subject to the further extension of time under the law e.g. Under section 148, C.P.C.
The application of section 10 as already noted is confined to a limited field while sections 12 and 28 are of wider application. But the consequences of payment or non-payment within the time fixed/extended (though in different language and context) are as discussed above of similar import regarding the advantage of saving the process or losing it for non-prosecution, sections 149 and 148, C.P.C. Would apply to them as provisos and savings in addition to the ones inherent in themselves as explained above. The position of Order VII, Rule 11(c), C.P.C. However is different.
Nothing in the Court Fees Act derogates from the obligatory character thereof. Therefore, as already held, section 28 of the Court Fees Act or for that matter the other relevant provisions would remain subject to Order VII, Rule 11(c) as understood and applied in the mandatory sense discussed earlier. It further needs to be observed that in this context what is not permissible when done directly, cannot be permitted to be done indirectly. Therefore, it would not be considered at all under Order VII, Rule 11 for rejection of the plaint and, thus, avoid the obligatory function under clauses (b) and (c) thereof. It is not possible because the very purview of Rule 11 which reads that 'The plaint shall be rejected...', makes it mandatory for the Court to do this exercise in all cases where the court-fee is deficient. In other words on this relevant discovery the Court shall, as an obligation, direct the party concerned to supply the deficiency within the time to be specified and on its failure to do so, of course subject to the other provisions of the law in this behalf, it shall have to reject the plaint or appeal, as the case may be."
14. Since it has been held that the suit filed by the appellant was rightly dismissed by the learned Senior Civil Judge, Pishin, there is no need to give findings on the other questions like filing of appeal before this Court instead of District Court.
15. The upshot of the above discussion is that the appeal being devoid of merits is dismissed.
Parties are left to bear their own costs.