The brief facts giving rise to this revision petition are that the petitioner filed suit for pre-emption against the respondents on 18-2-1995. The respondents filed written statement, controverted the statement. Out of the pleadings of the parties, the following issues were framed:--- ISSUES: Whether plaintiff has got superior right of pre-emption as against the defendants? OPP (2)Whether ostensible sale price Rs.80,000 was fixed in good faith or actually paid by the vendee as sale price of suit land? OPD (3)If issue No.2 is not proved, what was market value?
(4)Whether plaintiff is estopped by his words and conduct to bring the suit? OPD (5)Whether plaintiff has incorrectly valued this suit for purposes of court-fees and jurisdiction, if so, what is correct valuation? OPD (6)Relief.
The trial Court decreed the suit vide judgment and decree, dated 2-4-1986. The petitioner being aggrieved by the order of trial Court dated 2-4-1986 to the extent of sale price fixed Rs.80,000 instead of Rs. 20,000; the petitioner filed an appeal before the learned District Judge, Gujrat, who entrusted the same to learned A.D.J., who vide order, dated 29-4-1986, directed the petitioner to pay court-fee ad valorem on the sum of Rs.60,000 till 17-5-1986. The petitioner did not comply with the order within the stipulated period; the petitioner filed an application for extension of time which was dismissed by the learned A.D.J. vide order, dated 17-5-1986; hence the present revision petition.
2. Petitioner's counsel contended that order, dated 17-5-1986 is not in accordance with law laid down by the Hon'ble Supreme Court in Siddique Khan's case PLD 1984 SC 289; he further stated that impugned order clearly reveals that learned A.D.J. dismissed the application without applying his independent mind and dismissed the same on surmises and conjecture without any reason.
3. Learned counsel for the respondents stated that learned A.D.J. dismissed the application in accordance with law laid down by the Hon'ble Supreme Court in Siddique Khan's case PLD 1984 SC 289 as the 1st appellate Court has already granted one opportunity to petitioner to pay the court- fee till 17-5-1986 vide order, dated 29-4-1986.
In rebuttal, petitioner's counsel stated that impugned order is not speaking order; the same' is not in accordance with law laid down by the Hon'ble Supreme Court in Siddique Khan's case (supra); that impugned order is not sustainable in the eyes of law; he further stated that cases must be decided on merits instead of technicalities.
4. I have given my anxious consideration to the contentions of learned counsel for the parties and perused the record. It is admitted fact that 1st appellate Court directed the petitioner to pay ad valorem court-fee on the sum of Rs.60,000 till 17-5-1986; the petitioner failed to comply with the order till 17-5-1986 arid submitted an application for extension of time to pay the court-fee as directed by the learned A.D.J. vide order dated 29-4-1986. There should be no doubt that under section 149, C.P.C., grant or refusal to extend the time to make good the deficiency in the court-fee, is the discretion of Court, but the law governing such discretion is that a party guilty of delay contumacy and committed a positive act of mala fide is not entitled to exercise of such discretion in his favour. The word "contumacy" has been defined in Blacks Law dictionary to mean "refusal" or intentional omission of a person to obey some lawful order or discretion made in the cause. The word ' mala fide' has been defined in the aforesaid dictionary to mean bad faith. The word mala fide defined by the Hon'ble Supreme Court in Siddique Khan's case (supra) in the following terms:-- - "Mala fides have also to be understood in accordance with the well-known principles laid down by this Court from time to time. 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 act' 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 list it can pertake of 'wrongful loss' or 'wrongful gain'; but if none of the other parties to the list is involved and the act of bad faith -is regarding revenue of the State, then it will not ordinarily reflect on the list between the parties directly."
The opposite of mala fides, word bona fide has been defined in the Blacks LawDictionary to mean 'in or with good faith,honestly openly and sincerely without deceipt or fraud'. The word contumacy means according to the Hon'ble Supreme Court which has been defined in Siddique Khan's case PLD 1984 SC, 289 in the following terms:--- "Contumacy in the context is used in the general dictionary sense and not as a word of art. It means contempt of lawful authority, obstinacy, or stubborness. It is not difficult to discover the connection of these attitude with the subject under discussion. If a plaintiff is allowed time 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 time without some justification, it would amount to his being obstinate and stubborn in ignoring or defying the requirement and authority of law. The repetition of such a conduct would amount to his 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."
To resolve the controversy between the parties it is better and appropriate to reproduce the ground taken by the petitioner in his application for extension of time which is as under:--- The learned A.D.J., directed the petitioner to affix the ad valoram court-fee on the sum of Rs.60,000 till 17-5-1986 in presence of petitioner's counsel. The petitioner has taken a stand that he failed to pay the court-fee within prescribed period on account of peek season of wheat crop. It is settled proposition of law that mere poverty, ignorance or in--ability to pay court-fee within the prescribed period were not sufficient grounds. Reliance is placed on H.H. Feldman's case (PLD 1970 Kar. 295); and Muhammad Ghafoor's case (1969 SCMR 12); wherein their lordships held that: poverty of petitioner and his difficulty in making arrangement for filing of petition was no ground for condonation of delay. The case of Muhammad Naw az reported in (PLD 1970 SC 37) has been referred too by their lordships in the case of Siddique Khan, (supra) and the relevant observation is as follows:--- "The following weighty findings and observations in the case of Muhammad Nawaz Khan are to be clearly understood and reiterated:---
(a) It would indeed be anomalous if limitation is not saved in cases in which law requires the Court to allow the plaintiff to correct the valuation of the relief claimed in the suit which must necessarily entail making up deficiency in the stamp paper affixed on the plaint: therefore; (b)Time should automatically be enlarged in cases in which the Court has the discretion to grant time to pay the whole or part of court-fee prescribed'
In the case of Shah Nawaz reported in 1972 SCMR 179, their lordships have reproduced the rule laid down in the case of Muhammad Nawaz Khan and have provided the following two guide lines 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; (c)Thus, the law laid down by the 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. "
As mentioned above in the present case the main ground taken by the petitioner for not paying the court-fee within the prescribed period before the 1st Appellate Court is on; account of personal engagement as season of cutting the wheat crop was in full swing.
In view of the aforesaid discussion, the petitioner is guilty of contumacy and has also acted in mala fide manner by dishonestly filing the application for extension of time on the last date which was fixed by the 1st Appellate Court to pay the court-fee. There is no merits in this revision petition and the same is dismissed with no order as to costs.