SARDAR SAID MUHAMMAD KHAN, C.J.--'This, appeal has been directed against the judgment and decree of the High Court, dated 18-6-1998 whereby the appeal filed by the appellant, herein, was dismissed.
2. The brief facts of the case are that a suit for the recovery of a sum of Rs.2,25,796 was filed by the plaintiff-appellant in the Court of District Judge, Mirpur. After trial, the suit was dismissed and the appeal preferred to the High Court against the judgment and decree of the District Judge was dismissed for the non-payment of court-fee. According to the counsel for the appellant, the arguments in the case were heard on 17-6-1998 by a Division Bench and the judgment was reserved. On the next day, one of the members of the Bench, Mr. Justice ('h. Muhammad Taj, called the counsel for the appellant and directed him to make up the deficiency in the court-fee, otherwise the appeal would be dismissed. The counsel for the appellant sought an adjournment to do the needful on the ground that he had to intimate his client to do the needful but he was not given time and the appeal was dismissed by the High Court for failure to pay proper court-fee on the plaint and in the High Court on the memorandum of appeal.
3. It has been argued by Ch. Riaz Alain, Advocate, the learned counsel for the appellant, that- the High Court was bound to give reasonable opportunity to the plaintiff-appellant to do the needful; he has further argued that as the appeal was heard by the Division Bench, the single member of the Bench was not legally justified in calling upon the counsel for the appellant to make up the deficiency and to refuse the adjournment. He has submitted that the direction to make up the deficiency could be given only by the Division Bench and not by one of the members of the Bench.
The learned counsel has. Relied upon a Full Bench case of this Court entitled Executive Engineer v.
Raja Muhammad Nawaz Khan (Civil Appeal No. 65 of 1993 decided on 5-6-1994), wherein after exhaustively dealing with the case law on the subject, it has been held that plaint cannot be rejected without giving an opportunity to the concerned party to make up the deficiency in the court-fee. The relevant observations of this Court may be reproduced as under:-- "It follows that these two provisions cannot be considered to be mutually destructive. The question, therefore, is how the apparent difference that section 149 is discretionary while clauses (b) and (c) of rule 11 are mandatory in nature may be reconciled. A close look at the two provisions would show that this difference is only apparent and is not real. Section 149 is a general provision which deals with all categories of cases but clauses (b) and (c) only deal with two given situation. Clause (b) deals with a situation where the relief claimed is undervalued, while clause (c) caters to a situation where the relief claimed is properly valued but the plaint is written upon insufficient stamp-paper.
The plain interpretation, therefore, is that in situations falling in clauses (b) and (c) the requirement of giving opportunity is mandatory and if a case does not fall in any of the two categories the power would be discretionary."
4. Ch. Muhammad Azam Khan, Advocate, the learned counsel for the respondents had argued that this is a case of contumacious conduct of the appellant because he affixed only Rs.2 as court-fee on the memo. Of appeal. He has contended that the appellant failed to make up the deficiency despite the fact that the office of the High Court made a note on the relevant file that proper court- fee had not been paid. Thus, the learned counsel has argued that in view of the fact that the appellant wilfully avoided the payment of court-fee; he is not entitled to any indulgence. The learned counsel has contended that he was orally directed by the High Court to make up the deficiency in the court-fee but he expressed his inability to do the needful. The learned counsel has referred to a case reported as Muhammad Suleman v. Javed Iqbal (PLD 1985 SC (AJ&K) 1) which deals with the question as to how the plaint should be valued for the purpose of court-fee in view of the provisions contained in section 7(iv)(c) of the Court Fees Act and section 8 of the Suits Valuation Act. The authority does not deal with the question of making up of the deficiency of the court-fee and need not be commented upon any further.
5. We have given due consideration to the points raised at the Bar. The important question which needs resolution is as to whether the Court is bound to give an opportunity to the concerned party to make up the deficiency in Court-fee or it can reject the plaint or memo. Of appeal without p that.
It may be observed that the case law has been exhaustively dealt with in the aforesaid authority of this Court wherein it has been held that the provisions contained in section 149 and Order VII, rule 11, clauses (b) and (c) of the Code of Civil Procedure are to be read together and if a case falls within the ambit of clause (b) or (c) of rule 11 of the Order VII, the Court is bound to give an opportunity for making up deficiency in the court-fee. It has been further observed in the said authority that the mere note of the office with regard to the deficiency in payment of court-fee cannot be deemed to be a sufficient notice to the concerned party rather the opportunity for making up the deficiency should be given by the Court. While dealing with the question, this Court relied upon a case reported as Siddique Khan v. Abdul Shakur Khan (PLD 1984 SC 289), wherein the case law on the point has been discussed in some details.
6. Irrespective of the fact as to whether the appellant was called upon to make up the deficiency in the court-fee by one member of the Bench or the Bench, the fact remains that there is no order by the High Court on the relevant file showing that adequate opportunity was afforded to the plaintiff appellant to make up the deficiency in the court-fee. The impugned judgment of the High Court shows that the counsel for the appellant was orally directed to make up the deficiency in the court-fee but is not evident as to how much time was given to him to do the needful. The case of the counsel for the appellant is that he did not refuse to make-up the deficiency in court--fee, rather he sought an adjournment to do the needful because it was necessary to contract his client in the matter. Thus, we are of the opinion that without fixing a definite period for making up the deficiency in the court-fee, it cannot be said that the requirements of Order VII, rule 11 (b) and (c) were complied with.
Therefore, we accept the appeal, set aside the impugned judgment' and decree of the High Court and remand the case with the direction that an opportunity shall be afforded to the appellant to do the needful. Thereafter, the High Court shall proceed with the disposal of the appeal according to law.