Petitioners have invoked jurisdiction under section 115, C.P.C. against the judgment and decree dated 26-3-1994 passed by the learned Additional District Judge, Multan whereby he dismissed the appeal of the petitioners on account of non-payment of proper Court fee against the judgment of learned Civil Judge 1st Class, Multan dated 2-2-1991 decreeing the suit of the respondents against the petitioners.
2. Brief facts of the case are that respondents filed a suit on 14-2-1977 for declaration that demand made by petitioners for recovery of Rs,80,000 from the plaintiffs was illegal, void and subsequently another relief was added in the plaint for recovery of Rs,63938.42 illegally received by the petitioners from the respondents. The suit was tried by the learned Civil Judge on merit. While deciding Issues No,6 and 6-A the suit of the respondents was decreed vide judgment and decree dated 2-2-1991. On 12-3-1991 petitioners filed appeal before the learned District Judge, Multan against the decree of the learned Civil Judge dated 2-2-1991. This appeal was admitted for regular hearing on 13-3-1991. Court fee of Rs,5 was affixed on the memo of appeal whereas the Court fee payable was Rs,4,830. The decree holder submitted application on 26-3-1991 raising objection that proper Court fee has not been affixed on the appeal and the appeal be dismissed treating the same as improperly constituted appeal. On 7-1-1993 after about 2 years petitioners replied the said application with a plea that department has moved for release of amount for payment of Court fee and the same shall be paid as soon as permission is granted in this regard. The learned Additional District Judge dismissed the appeal on the ground that without payment of Court fee same was not entertainable on 26-3-1994 against which the present revision has been preferred.
3.Learned counsel for the petitioners contends that the amount of Court fee was not sanctioned by the Finance Department therefore, the requisite Court fee could not be affixed on the memo of appeal. He also submits that it was duty of the Court to provide at least one opportunity to the petitioner for making up the deficiency of Court fee. Failure on the part of the learned Additional District Judge to provide such opportunity has caused miscarriage of justice.
4. On the other hand, learned counsel for the respondents-decree holders submits that the Government and the private litigants are to be considered at par. No concession can be extended to the Government litigating against private individuals in relation to grant of time for making up the deficiency of Court fee. He also submits that conduct of the petitioners was contumacious in nonpayment of proper Court fee on the memo of appeal. No interference in discretionary order of Additional District Judge is called for. He has referred 1988 CLC 1711, Mukhi Chatromal and another v.
Khubchand and six others support of his contention. He has also relied upon 1997 SCMR 919 Assistant Commissioner and Land Acquisition Collector, Badin v. Haji Abdul Shakoor and others.
5. I have heard the learned counsel for the parties and perused the record with their assistance.
The conduct of the petitioners is definitely contumacious. They have not paid proper Court fee on memo of appeal while filing the same on 12-3-1991. A specific objection was raised by the respondents on 26-3-1991 but in spite of said objection petitioners kept on delaying making up the deficiency of Court fee till 7-1-1993 when reply to the aforesaid objection was submitted. In that reply too it was contended that the Finance Department has been moved for sanction of amount for payment of Court fee and the same having not been released the petitioner is unable to affix it on the memo of appeal. The conduct of the petitioners is definitely contumacious as laid down in the Mukhi's case referred above. Word 'contumacy' has been defined to mean refusal or intentional omission of a person to obey some lawful order or direction made in the cause. A Division Bench of the Karachi High Court in the aforesaid case laid down that "provisions of Order VII Rule 11(c) C.P.C. are applicable to appeals and 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." The contention of the learned counsel that the Court fee was not paid on the memo of appeal in the instant case as the funds were not available by the Finance Department is hardly a valid ground for enlargement of time or grant of permission to make up the deficiency of Court fee. No requisite Court fee was affixed on the memo of appeal as is evident from the decree of the Additional District Judge attached with this petition. Nonpayment of Court fee on the memo of appeal particularly after objection was raised by the decree holder on 26-3- 1991 which was replied about 2 years thereafter on 7-1-1993 and even thereafter no Court fee was affixed on the memo of appeal by the petitioners, makes them positively guilty of contumacy and the appellate Court was justified in dismissing the appeal for non-payment of Court fee. Mukhi's case referred above has taken into consideration all the relevant laws and judgments in relation to deficiency of Court fee or request for enlargement of time therefor. In Mst. Walayat Khatun v. Khalil Khan and another PLD 1979 SC 821; H.H.S. Feldman v. Province of East Bengal PLD 1970 Karachi 295; Seth Hafiz Abdul Aziz Yousfani & Sons v. Haji Ali Muhammad & Co. PLD 1968 Karachi 883; Muhammad Ghaffar v. The State 1969 SCMR 12; Siddiq Khan v. Abdul Shakur Khan PLD 1984 SC 289; Shah Nawaz and six others v. Muhammad Yousaf and three others 1972 SCMR 179; F.A. Khan v.
Government of Pakistan PLD 1964 SC 520; Province of East Pakistan v. Chairman, Election Tribunal, N.-W.F.P. PLD 1976 SC 625 and Muhammad Nawaz's case PLD 1970 SC 37 definite conclusion has been drawn that a party who acts in a positive mala fide manner no concession of enlargement of time can be granted to him and resultantly the appeal will be deemed to have becomes barred by time which cannot be considered on merits. The aforesaid judgment is fully applicable to the facts of the present case, and learned Additional District Judge was justified in dismissing the appeal on the ground of non-payment of Court fee.
6. Similar view has been expressed in the latest judgment of the Honourable Supreme Court in Assistant Commissioner's case referred above that where amount of Court fee payable is manifest on the face of it no party can ask for its determination or claim extension of time for calculation or affording of an opportunity to make up the deficiency. The appellate court may extend time under section 149, C.P.C. if time was so extended, question of limitation would not arise where, however, petitioner was guilty of contumacy or he had acted in positive mala fide manner in regard to deficient Court fee, Court would decline to exercise discretion in his favour on that ground. In the aforesaid case petitioner filed appeal in the High Court against a money decree. No doubt existed as to question of payment of Court fee for same was to be paid ad valorem on decretal amount; in spite of such legal proposition, petitioner opted to file appeal with Rs,10 Court fee. Even after objection was raised by respondent, petitioner took plea that no Court fee was payable though after expiry of more than one month he paid deficit Court fee as a matter of abundant caution.
Learned Judges of the Supreme Court observed that High Court was thus justified in concluding that petitioner was negligent and his conduct was contumacious and there existed no reason to show any indulgence to him to extend time. Leave to appeal was refused.
7. The plea of the petitioners that they should have been afforded at least one opportunity to make up deficiency is misconceived. Petitioners were aware of the total amount of Court fee as it is evident from the decree of the learned Civil Judge wherein an amount of Rs,4,830 as Court fee is categorically mentioned. Similarly, the appeal remained pending with the Additional District Judge for considerable long period. Objection was raised by the decree holder which was replied after about 2 years with a lame excuse of getting sanction from the Finance Department. The objection was not complied with. Petitioners had full knowledge of the amount of payable Court fee. They were also aware of non-payment of Court fee on the memo of appeal but having failed to pay the requisite amount have disentitled themselves of hearing it on merit and as such Court was justified in passing the impugned decree.
8. The contention that petitioners were a government department and lot of formalities were required for release of funds for Court fee is of no consequence. It may be observed that Supreme Court of Pakistan in 1996 SCMR 727 Federation of Pakistan through Secretary, Ministry of Foreign Affairs, Government of Pakistan Islamabad and 5 others v. Jamaluddin and others, Government of Pakistan through Secretary, Ministry of Finance, Islamabad and 3 others v. Najib Zarab Ltd. and others and Board of Trustees of the Port of Karachi v. Messrs Najib Zarab Limited and 4 others has clearly laid down that Government cannot claim to be treated in any manner differently from an ordinary litigant. Litigant seeking condonation of delay must explain delay of each day. Excuse that matter got delayed because of its having remained under examination at different department levels was not a proper and satisfactory explanation for the delay of 36 days, in the aforesaid case.
9. Similarly, in PLD 1987 SC (AJ&K) 5 State Life Insurance Corporation of Pakistan v. Mst. Zainab Khatoon and five others the Honourable Supreme Court of Azad Jammu and Kashmir has laid down that in case no Court fee is paid on the memo of appeal without giving any reason and petitioner kept silent till objection was raised by the other side after the period of limitation elapsed, petitioner was not held only negligent in the matter but his conduct was contumacious and there exists no reason whatsoever to show any indulgence to him and allow him time to pay the Court fee on the memo of the appeal after the expiry of period of limitation. If a party does not make out a good case for the condonation of delay, such party cannot be allowed to make up the deficiency of Court fee after the expiry of period of limitation, the indiscriminate and reckless exercise of discretion in the matter would amount to destroy the provisions of Limitation Act and, thus, Court should strike a balance between the aforesaid provisions and should apply independent mind carefully while allowing or disallowing the prayer for making up the deficiency and if a party is found guilty of contumacious conduct or negligence or mala fide, such party should not be shown any indulgence. The Honourable Supreme Court of Azad Jammu and Kashmir in para No,6 of the said judgment has observed as under:-- "It is evident from the aforesaid provisions that the trial Court is to calculate the amount of the Court fee for the purpose that it may order by decree that the same is to be recovered by the Provincial Government from any of the parties to suit. The said calculation is not made for the guidance of the one party or the other for paying Court fee on the memo of appeal. If the petitioner/defendant had any doubt about the amount of Court fee he could have mentioned in the memo of appeal that as the amount of the Court fee to be paid by him was not ascertainable, he would pay the same when it is determined by the Court, but no reason was recorded in the memo of appeal for non-payment of the court fee. Even otherwise we are of the opinion that it was for the petitioner/defendant to calculate the amount of Court fee for the purpose of appeal in view of the relevant provision of the law on the subject and there was hardly a justification for the petitioner/defendant to present memo of appeal in the High Court without affixing any Court fee on the same. From the conduct of the petitioner/defendant it is crystal clear that he did not take steps to do the needful till the objection was raised by the other side. In our view, in the circumstances of the case, the petitioner/defendant was not only negligent in the matter but his conduct was contumacious and there exists no reason whatsoever to show any indulgence to him and allow him time to pay the court fee on the memo of the appeal after the expiry of period of limitation. It may be observed that if a party does not make out a good case for the condonation of delay, such party cannot be allowed to make up the deficiency of Court fee after the expiry of period of limitation. In Mst. Walayat Khatun v. Khalid Khan PLD 1979 SC 821, although a deficient Court fee was paid on the plaint, plaintiff was not allowed to make up the deficiency of the Court fee after the expiry of the period of limitation and it was observed that the combined effect of Order 7 Rule 11 C.P.C., section 149 C.P.C. and section 28 of the Court Fees Act is that if the Court fee is paid after the expiry of the period of limitation but within the time allowed by the Court, the defect of the plaint or memo of appeal stands cured retrospectively but the indiscriminate and reckless exercise of discretion in the matter would amount to destroy the provision of Limitation Act and thus Court should strike a balance between the aforesaid provisions and should apply independent mind carefully while allowing or disallowing the prayer for making up the deficiency and if a party is found guilty of contumacious conduct of negligence or mala fide such party should not be shown any indulgence."
10. Keeping in view the aforesaid provisions of law and facts of the case, I am convinced that the impugned judgment and decree suffer from no material irregularity or illegality calling for interference by this court. Consequently, this petition is hereby dismissed with costs.