' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal, by leave has been directed against the order of the High Court, dated 31-7-1997, whereby the matter regarding making up the deficiency in court-fees was remanded to the Trial Court to decide the same afresh.
2. The brief facts of the case are that a suit was pending between the parties when the utter regarding making up the deficiency in the court-fees became subject of controversy between the parties. An application was made by the defendant-respondent on which the plaintiff-appellant was directed to make up the deficiency in the court-fees in the sum of Rs,1,000 vide its order, dated 17-4-1988, according to which the needful was to be done by 28-5-1988. From the record it appears that instead of 28-5-1988, the deficiency in the court-fees was made up on 22-6-1988, after the date fixed by the Court had already elapsed. The case of the appellant is that on 28-5-1988, he had purchased the stamps and presented the same to the Reader but the same were not accepted by him on the ground that the Presiding Officer of the Court was on leave and deficiency in the court- fees could be made up only in his presence. However, respondent No,1 moved another application on 30-6-1994 that the plaintiff-appellant had failed to comply with the order of the Court, dated 17- 4-1988 for making up the deficiency in the court-fees within the time fixed by the Court, i,e,, by 28- 5-1988, because he made up the deficiency in the court-fees on 22-6-1988, without the order of extension of the earlier period fixed by the Court. Thus, it was prayed that the plaint filed by the plaintiff-appellant be rejected. The application filed by the respondent was dismissed by the Trial Court vide. Its order, dated 7-7-1994 observing that the order of the Court has been complied with as is evident from the interim order, dated 22-6-1988. The order, dated 7-7-1994 was assailed in the High Court by the respondent, inter alia, on the ground that as the deficiency was not made up within the period fixed by the Court and the stamps were filed after the period originally fixed by the Court. The High Court, after hearing the parties, remanded the case to the Trial Court to decide the matter afresh after considering the question of extension of period which was originally fixed.
3. As this was an old case and we were preceding to Mirpur to hear circuit Bench cases, we ordered the counsel for the parties to file written arguments so that the appeal could be disposed of as early as possible. We have gone through the written arguments filed by the parties. The contention of the appellant is that he had purchased the stamps within time fixed by the Court and presented the same to the Reader of the Court but the same were not accepted on the ground that the Presiding Officer was not present. The fact that the Presiding Officer was on leave on 28-5-1988 was not even denied by the opposite side. The Photostat copies of the register of Stamp Vendor and certificate of the Stamp Agency of the Government were produced in 'the High Court to substantiate the contention that in fact the stamps were purchased by the appellant on 28-5-1988.
The respondent, herein, took the stand in the High Court that the story of the purchase of stamps on 28-5-1988 was fictitious and fabricated. It has been contended in the written arguments on behalf of the appellant that the question relating to making up of deficiency in the court-fees is a matter between the State and the party concerned and the opposite party has no legal justification to contend that the court-fees should not have been accepted and the plaint should have been rejected under Rule 11 of the Order VII, C.P.C. It has been argued that it is evident from the Photostat copy of the register of the Stamp Vendor and the certificate issued by the concerned Government Agency that in fact the contention of the plaintiff-appellant is correct that .He had purchased the stamps before the date fixed by the Court for doing the needful but the same were not accepted by the Clerk and, thus, there had been no fault on his part. The learned counsel has argued that in any case, the deficiency in the court-fees was allowed to be made up on 22-6-1988.
It has been argued that even if it is assumed for the sake of argument that while allowing the plaintiff-appellant to make up the deficiency on 22-6-1988, no conscious order was passed by the Court, that becomes immaterial because subsequently, when the aforesaid application was submitted by the defendant-respondent, the Court passed the impugned order, dated 7-7-1994 observing that as the plaintiff-appellant had made up the deficiency in the court-fees in compliance of Court order, dated 17-4-1988, any further controversy would be an exercise in futility.
Thus, it has been contended that in presence of the aforesaid order, it cannot be said that the trial Court did not apply its mind to the question of the extension of the time. Even otherwise, in the circumstances listed above, the High Court should have considered the question itself instead of remanding the case to the Trial Court. It has been argued that the view taken by the High Court that there is no mention in the impugned order of the trial Court that delay in making up the deficiency in the court-fees was condoned is not legally tenable because there is ample authority in support of the proposition that when the deficiency is allowed to be made up, the time would automatically be deemed to have been extended by necessary implications. The learned counsel for the appellant has cited following authorities in support of his contentions:- ' In case reported as Muhammad Nawaz Khan v. Makhdoom Syed Ghulam Mujtaba Shah (PLD 1970 SC 37), it has been held that the contention of a party that only those cases fall under clause (c) of Rule 11 of Order VII, C.P.C., in which the relief claimed valued in the first instance was not correct; the aforesaid provision would also apply to the cases where the plaintiff seeks correction of the valuation of the relief claimed which must necessarily entail in making up the deficiency in stamp papers affixed on the plaint. However, where the Court has exercised discretion and allowed to make up the deficiency in the court-fees and the same is made up, the time would be deemed automatically extended in such cases. It has been further observed that the provision of Order VII, Rule 11, C.P.C., and section 149, C.P.C., should be read together.
' In case reported as Abdul Qayyum v. Additional District Judge (1992 MLD 1657), it was held that the deficiency in court-fees is matter between the Court and litigant and, thus, the opposite party has no right to object if the plaint was deficiently stamped but the deficiency in court-fees was allowed to be made up. The petition for leave to appeal was rejected relying on the earlier dictum of the Court reported as Siddique Khan v. Abdul Shakur Khan (PLD 1984 SC 289).
' In case reported as Muhammad Siddiq v. Muhammad Ibrahim (PLD 1981 BJ 23), it was held that in view of the provision contained in section 28 of the Court Fees Act, Order VII, Rule 11 and section 149 of the C.P.C., if the deficiency in court-fees is made up in compliance of the order of the Court, the plaint would be deemed to have been validly instituted on the date when the same was originally filed in the Court.
' In case reported as Mahanth Ram Das v. Ganga Das (AIR 1961 SC 882), it was held that the High Court had full powers to extend the time for making the deficiency in the court-fee under sections 148, 149 and 151 of C.P.C., if the circumstances of a case so warrant. It was further observed that even if the original period fixed for making up the deficiency had expired, the Court could enlarge the time and while doing so it should liberally construe the relevant provision in favor of a litigant. It was further observed that an order extending the time for payment of court-fees, though passed after the expiry of time already fixed by the Court, would operate from the date on which the time previously fixed expired.
' In case reported as Mahasay Ganesh Prasad v. Narendra Nath Sen (A.I.R. 1953 SC 431), it has been held that the question of payment of court-fees is primarily the matter between the State and the person concerned and, therefore, where the High Court, in exercise of its discretion, allows the appellant to amend his memo. Of appeal and grants time for the payment of deficient court-fees under section 149, C.P.C., the opposite party cannot attack the order on the ground that the relevant order has taken away his valuable right to plead the bar of limitation.
' In case reported as Shahna Khan v. Aulia Khan (PLD 1984 SC 157), it was held that as the plaintiff was misled for affixing proper court-fees in a pre-emption suit, the High Court was not correct in dismissing his application for allowing to make up the deficiency because the plaintiff was misled in affixing proper court-fees due to misunderstanding of legal question of limitation in the case.
Consequently, the appeal was accepted by the Supreme Court and the plaintiff was allowed to make up the deficiency in the court-fees.
' In case reported as Siddique Khan v. Abdul Shakur Khan (PLD 1984 SC 289), it was observed that non-payment of court-fees can be the best equated with the non-prosecution and not the non- institution of the suit. It was observed that while considering the provisions contained in sections 148, 149 and Order VII, Rule 11, C.P.C., the bar of limitation should not be taken into account. It was further observed that when making up deficiency in the court-fees is allowed in compliance of the order of the Court, the time would automatically be extended and the plaint would be deemed to have been instituted on the date when it was first instituted with deficient court-fees.
4. Mr. M.A. Farooq, respondent No,1, has filed detailed written arguments and attached a number of documents along with the same. The bulk of the written arguments does pertain to the matter of controversy, i,e,, whether the impugned order whereby the High Court remanded the case was justified or not. Rather, the arguments pertain to some of the facts which are still sub juice before the trial Court and are to be resolved by it one way or the other at proper stage. However, in the written arguments, after tracing out detailed history of the case, it has been contended that the order passed by the trial Court, whereby the deficiency was made up by the plaintiff appellant after the time fixed by the Court does not conform to the requirement of law and was illegal because the same was done without any conscious order of the Court. It has been further contended that in view of the contumacious conduct of the plaintiff-appellant, the order of the trial Court, dated 7-7-1994 passed on the application of the defendant/respondent was not tenable and, thus, was rightly vacated by the High Court through impugned order. Thus according to the respondent, the impugned order, whereby the case was remanded by the High Court, did into suffer from any legal infirmity. He has cited following authorities in supported of his contentions: ' In case reported as Sakhi Muhammad v. Hakim Ali (1991 CLC 1655), it was observed that the appellant had failed to make up the deficiency on the memo. Of appeal in pursuance of the order of the Taxing Officer of the High Court, the memo. Of appeal entailed rejection.
' In case reported as Muhammad Yasin Khan v. Azad Government of the State of Jammu and Kashmir (1991 MLD 2295), it was observed that as the matter was finally adjudicated upon in the previous round of litigation between the same parties, the plaintiff had no cause of action to bring the suit afresh because the same was not only hit by res judicata but was barred under Order VII, Rule 11, C.P.C., due to absence of cause of action; it was observed that the plaint was rightly rejected by the Courts below. This authority does not pertain to the deficiency of court-fees and, thus, is not relevant.
' In case reported as Mst. Walayat Khatun v. Khalil Khan (PLD 1979 SC 821), the facts were that the court-fees of Rs,2 was affixed on the plaint which, in the opinion of the Court, was ridiculously low.
However, following day, the plaintiff was directed by the trial Court to make up the deficiency in court-fees by a particular date which was not falling beyond the period of limitation prescribed for filing a suit. However, the deficiency was made up after about 25 days of the time which was fixed by the trial Court. It was held that the trial Court rightly rejected the plaint for disobedience of its order and the petition for leave to appeal filed to the Supreme Court was rejected.
' In case reported as Syed Zahid Hussain v. Capital Development Authority, Islamabad (1979 CLC 502), the matter pertained to the issuance of temporary injunction in which the question of jurisdiction of the trial Court to hear the suit also came up for consideration. The question of making up the deficiency in court-fees was not involved in the case. Hence this authority also has no bearing on the facts of the case in hand.
' In case reported as Muhammad Ramzan v. District Judge, Okara (PLD 1993 Lah.421), it has been observed that the petitioner deliberately affixed the deficient court-fees before the appellate Court constituted under West Pakistan Family Courts Act, 1964; it was observed that in the circumstances of the case, the petitioner had no intention to pay the court-fees and he deliberately did not comply with the order of the Court. Thus, the petition for leave to appeal was rejected by the Supreme Court observing that the petitioner was given sufficient time to do the needful but he intentionally failed to comply with the order of the Court.
' In case reported as Rahim Bakhsh v. Muhammad Bakhsh (PLD 1976 Lah. 686), it was observed that as the right of pre-emption was a predatory right, it was incumbent upon the pre-emptor to take all the necessary steps to see that the suit was properly filed and proper full court-fees was paid thereon but the proper court-fees was not paid. Subsequently, the deficiency in the court-fees was made by filing stamps. It was observed that it appeared that mind was not applied by the trial Court as to whether the deficiency could be made up in the case and, thus, the order was held to be of mechanical nature was observed that the trial Court's order did not show that the Court had condoned the delay or extended the time for doing needful under the relevant law. Consequently, it was held that the mere filing of the stamps by the plaintiff could not be deemed to extend the time automatically in absence of the conscious order of the Court in that regard.
' The facts of the case reported as Siddique Khan v. Abdul Shakur Khan (PLD 1984 SC 289) have already been narrated while discussing the authorities relied upon by the learned counsel for the appellant because this authority was relied upon by both the contending parties.
5. It may be observed that Mst. Mehmuda Begum respondent No,2, has filed separate written arguments through her counsel. The said written arguments do not pertain to the matter in controversy; rather she has stated that her name should be struck off from the line of the respondents or for that matter -from the line of defendants because she was not a necessary party. It may be observed that this Court, vide its judgment in the case (Civil Appeal No,46 of 1991, decided on 14-3-1992) has held that she was a necessary party in the proceedings. Therefore, her argument is not tenable and the same is also irrelevant to the present controversy.
6. We have given due consideration to the arguments raised at the Bar. It is evident from the perusal of the authorities cited at Bar that it is within the discretion of the Court to extend time in making up the deficiency in the court-fees and once the discretion is exercised, the time to make up the deficiency is presumed to be automatically extended; the suit would be deemed to have been instituted on the date when it was first filed. The contention on behalf of the respondent that while accepting the deficiency in the court-fees on 22-6-1988, the Court did not pass a conscious order in the matter loses its weight because subsequently, on the application of the respondent, the order, dated 7-7-1994 was passed by the trial Court whereby making up of the deficiency in court-fees by the plaintiff after the time originally fixed was approved in the circumstances of the case. Thus, irrespective of the fact that the order, dated 22-6-1988 when the deficiency in court- fees was made up, was conscious order or not, the said order was upheld by the trial Court vide its order, dated 7-7-1994; the trial Court accepted the stamps which were filed so as to make up the deficiency after the date, i,e, 28-5-1988 which was initially fixed by the trial Court. Therefore, the argument that the order of trial Court, dated 22-6-1988 was not a conscious order loses its validity when the said order was approved by the trial Court on the written objections of the respondent vide its order, dated 7-7-1994. Thus, the High Court was not legally justified to remand the case to the trial Court to reconsider the matter and decide the same afresh. The High Court should have decided the matter itself. We see no legal justification to remand the case to the trial Court when it had already passed the order in the matter on the application of the respondent. As is evident from the case law cited above, the provision of the relevant law relating to making up of deficiency in court-fees should be liberally construed in favour of a litigant until and unless the conduct of the concerned party is contumacious. In the instant case the Presiding Officer of the Court was on leave on 28-5-1988 when the deficiency in the court-fees could be made up. The case was adjourned by the Clerk of the Court to 22-6-1988 when the stamps were presented and were accepted by the Presiding Officer; on the said date the respondent absented himself and ex parte proceedings were ordered against him which were subsequently set aside. Thereafter, the order, dated 22-6-1988 was again reviewed by the trial Court and was approved vide its order, dated 7- 7-1994. It may be observed that the case is pending in the trial Court for more than ten years but it is still at the initial stage. Under these circumstances, we agree with the learned counsel for the appellant that there was no justification for remanding the case.
7. So far as the validity of the order of the trial Court, dated 7-7-1997 is concerned. We see that the same does not suffer from any infirmity; irrespective of the fact that it has not been specifically mentioned in the said order that the time is extended, the fact that the order, dated 22-6-1988, whereby the stamps were accepted by the Court was affirmed by its order, dated 7-7-1994, would imply that the time was extended by the trial Court by a conscious order as is evident from the authorities cited on behalf of the appellant. Therefore, even if the plea of the appellant that he had purchased the stamps within the period originally fixed is not believed, the deficiency in the court- fees having been made up by the appellant and subsequently approved by the Court is sufficient compliance of the order of the trial Court.
' In the light of what has been stated above, we accept the appeal, set aside the impugned order of the High Court and restore that of the trial. Court, dated 7-7-1994.