CH. IJAZ AHMAD, J.- The brief facts out of which the present revision petition arises are that land measuring 104 kanals, situated in Chak No. 297/EB, Tehsil and District Vehari was allotted to Fazal Khan Awan as Islamabad oustee. He died in the year 1966. He left six legal heirs namely Jahan Dad (respondent No. 2/plaintiff), Karam Dad, Manzoor Ahmad, Zaran Dad and two daughters Mst.
Jannon and Mst. Akbar Jan. On 29.11.1969, Karam Dad (respondent No. 2/defendant) got mutation No. 63 regarding the inheritance sanctioned in his favour by showing himself as sole heir of Fazal Khan deceased. On 2.7.1971, he obtained permission from Commissioner, Multan Division, Multan U/S. 19 of the Colonization of Government Lands Act to sell the suit land and on 15.1.1972, he sold away the same to Ibrahim through mutation No. 82 to the exclusion of other legal heirs and transferred its possession also. Respondent No. 2/plaintiff aggrieved by the above-mentioned mutation filed a suit for possession of the suit land challenging the proceedings of transfer firstly in favour of Karam Dad and secondly in favour of Ibrahim as being illegal, void and ineffective upon his rights and upon the rights of other defendants, the legal heirs of Fazal Khan deceased.
2. The defendants filed written statement, denied the contents of the plaint. The learned trial Court after completing the legal formalities framed the following issues:- ISSUES.
1. Whether the civil Court lacks jurisdiction to try this suit? OPD.
2. Whether the suit is within time? OPP.
Upon para l2 of the plaint dated 13.12.1973, which is to the following effect:- ((Urdu Text))
He further mentioned preliminary objection No. 5 of the written statement, which is to the following effect:- ((Urdu Text))
He further relied upon finding on Issue No. 5 in the judgment of the trial Court dated 7.10.1985 and stated that issue No. 5 was not pressed, therefore, it was decided against defendant No. 2 as having been given tip. He farther stated that annual net profit was not placed on record by both the parties, therefore, question of not affixing proper Court-fee does not arise. He further argued that on account of the amendment, Court-fee is exempted on the amount mentioned in para 12 of the plaint. The leamed counsel for the respondents stated that Court-fee mentioned in the decree (page 19) of the file dated 7.101985 is Rs. 5754/-. Then he relied upon grounds of appeal before the District Judge by the petitioner dated 7.2.1988 revealed the Court-fee Rs. 4,700/-. He further relied upon C.M. No. 1 of 1990, filed by the petitioner (page 195) u/S. 149 CPC for granting time to make up deficiency and the relevant paragraphs are re-produced hereunder: - "That the petitioner, while on his way to Multan to file the revision in a bus has suffered the loss of money lodged in his pocket which has either fallen down or has been stolen away."
"That it is through the free services of the counsel also that the revision is being filed. It shall take time before he is in a position to arrange for the professional fee and the Court-fee."
He also relied upon the title of the present revision petition, in which Court-fee is mentioned as Rs.
5,754/-. The office raised objection that there is deficiency in the Court-fee to the extent of Rs.
5,754.00. The office was directed vide order dated 6.10.1992 to submit the report regarding deficiency of Court-fee as Rs. 5754.00. The office submitted report vide note dated 10.11.1992, which is reproduced hereunder:- "Order dated 6.10.1992 passed by Hon'ble Mr. Justice Munir A. Sheikh in the above-noted case is respectfully referred.
It is submitted that vide order dated 6.10.1992 Hon'ble Mr. Justice Munir A. Sheikh was pleased to direct the office to call for the records of appellate as well as trial Court and to submit a report as to how the Court-fee was deficient worth Rs. 5754/- leviable on the revision. The records of appellate as well as trial Courts have been received which are attached with the file. After examining the record of the trial Court, it has transpired that according to pages Nos. 50 and 51 of the record of trial Court at Flag "A" and "B", Addl. Administrative Civil Judge, Multan vide an interim order dated 19.12.1973 passed an order for getting the (Fard Khalis Munafa) prepared in order to make up the deficiency in Court-fee before 2.2.1974 and recording to page No. 458 at Flag "C" of the lower Court record the (Fard Khalis Munafa) was prepared as Rs. 5077/52 by the office Kanungo, Vehari and by counting Rs. 5077/52 (Fard Khalis Munafa) fifteen times .The deficiency in Court-fee of more Rs. 560Q/- was made up and affixed on the plaint on 12.4.1974.
Report submitted for information and perusal of the Hon'ble Court."
4. The leamed counsel of the respondent contended that petitioner mala fidley did not affix the proper Court-fee and did not remove the objections till date. He argued that the revision petition may be dismissed on this short ground alone.
5. I have given my anxious consideration to the contentions of the leamed counsel of the parties. It is admitted fact that the counsel of the petitioner was conscious at the time of filing revision petition that Court-fee has to be affixed, therefore, he filed C.M. No. 1 of 1990. The office also raised objection, but the petitioner did not remove the objection while affixing the Court-fee. Vide order dated 6.10.1992, this Court directed the office to submit report regarding deficiency of Court-fee, which was submitted on 16.11.1992, but the petitioner failed to remove the objection till date, therefore, revision petition has become time-barred, as the law declared by the superior Courts.
(1996 Law Notes 931) Naveed Ahmad v. Asif Riaz case, (PLD 1996 Lahore 158).
(1) (1997 Pakistan Supreme Court cases 292) Muhammad Ahmad v. Muhammad Ali
(2) (1991 CLC 269) Sultan Muhammad v.- Muhammad Ashra
(3) (PLD 1954 Lahore page 361) Ghulam Hussain and other v. Bahadur
6. In the case of Shah Nawaz, reported in 1972 S.C.M.R. 179, their Lordships have reproduced the rale laid down in the case of Muhammad Nawaz Khan and have provided the following two guidelines regarding the exercise of discretion under section 149 C.P.C.:- "(a) that whenever the plaintiff is guilty of contumacy, he may be refused exercise of discretion under section; and/or
(b) when he acts in a positive mala fide manner in regard to the deficient Court-fee."
Thus, the law laid down by their Lordships can be summarised as under:-
(a) That the provisions of Order VII, Rule 11(c), C.P.C, are applicable to the appeals.
(b) That the time to pay deficient Court-fee should automatically be enlarged under Section 149, C.P.C, unless the plaintiff is guilty of contumacy or he has acted in a positive mala fide manner.
7. Keeping in view the above-mentioned guide lines of the Supreme Court, Division Bench of the Karachi High Court reported as 1988 CLC 1711 in Khub Chand's to exercise discretion in favour of appellant in the following terms:- "We have already held that the appellant is guilty of contumacy and has also acted in mala fide manner by dishonestly moving the application for leave to file appeal in forma pauperis and has paid the Court-fee subsequently after' expiry of period of limitation. As such the preliminary objection raised by Mr. Syed Abbas Zia learned counsel for the respondent has great force and the appeal is not maintainable and is liable to be dismissed."
8. In view of the guide lines laid down by the Supreme Court of Pakistan in Shah Nawaz's case appeal is dismissed. I am fortified by the judgment of the Hon'ble Supreme Court of Pakistan reported as (1997 S.C.M.R. 919) Assistant Commissioner and Land Acquisition Collector, Badin v. Haji Abdul Shakoor and others, and the relevant observation is as follows:- "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. 1 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 leamed 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 time. We do not find any infirmity in the impugned judgment. Leave is, accordingly refused."
9. In view of what has been discussed above, the revision petition is dismissed.