This is an application under section 149, C. P. C. Read with section 151, C. P. C. Praying for permission to pay deficit court-fee on the plaint.
2. The suit is principally for specific performance of contract for sales alleged to have been executed by defendant No. 1 on 28-7-1962 in respect of agricultural land of which possession was delivered to the plaintiffs. The principal prayer in the plaint, is therefore, for a decree for specific performance but in addition the plaintiff's claim by way of alternative relief a decree for Rs.
2,85,548.43 with interest for improvements made upon the land in suit. When the plaint was presented the office bad raised amongst others an objection regarding court-fees and I find on the reverse of the first page of the plaint that the office had asked the plaintiff to pay court-fees: on Rs. 2,85,548.43. But subsequently the figure of the amount appears to have been struck off.
3. It appears that the plaint was affixed with ad valorem court-fees for Its. 55,000 which was the valuation given in the plaint. Learned counsel for the plaintiffs informs me that after the office raised the objection with regard to the court-fees he had paid separate nominal court-fees for the alternate relief as the plaint contained an undertaking that if a decree for money was granted the plaintiffs would pay the deficit court-fees whenever required.
4. The defendants also raised the plea of insufficiency of the court-fees paid and accordingly the issue regarding court-fees is one of the issues settled by the Court.
5. During the course of the final arguments plaintiffs have submitted this application for permission to pay the deficit court-fees on the amount of alternate prayer. Ma. Habibur Rehman in support of the application has referred to the provisions of Order V11, rule 11, C. P. C. And section 149, C. P. C. He submits that the plaint can be rejected if the suit is properly valued but is filed with insufficient court-fee. However, counsel urged, before rejecting the plaint on the ground, the Court has to give an opportunity to the plaintiffs to pay deficit court-fees, learned counsel referred to the undertaking given by the plaintiffs in the plaint to pay court-fees whenever required and submitted that the plaintiffs were under a bona fide impression that the relief for a money decree by way of compensa--petition far the improvements in the land could be tentatively valued and court-fees paid subsequently on the specific amount adjudicated. On this basis counsel contended that the non-payment of proper court-fees was not male fide or contumacious.
6. Mr. Haji Muhammad Memon, learned counsel for the defen--dant No. 1 replying to the contentions, submitted that the plaintiffs are not entitled as a matter of right to permission to pay deficit court-fees. Ht urged that the power to allow payment of deficit court-fees after the presentation of the plaint is discretionary but the discretion is to be exercised on judicial principles.
Learned counsel contended that in a case where the plaintiff deliberately fails to pay proper court- fee the discretion cannot be exercised in his favour. Counsel relied on Jagat Ram v. Masir Khairati Ran arid another AIR 1938 Lah. 361 wherein it was observed :-- "Discretion conferred on the Court by section 149, C. P. C. Is normally expected to be exercised in favour of the litigant except in cases of contumacy or positive male files or reasons of similar kind:"
On the other hand learned counsel fair the plaintiffs relied upon Abdul Hakim and others v.
Asabuddin PLD 1970 Dacca 532 which was a case in which the prayer under section 149, C. P. C.
Was rejected. But even then the Court extended the time for payment of deficit court-fee on the ground that the petitioner had acted expeditiously and bona ,'tide throughout.
7. The consensus of opinion so far as the superior courts in this country is concerned has all along been, that ordinarily the Court should grant opportunity to the plaintiff to pay up deficit court-fee unless the plaintiff is guilty of positive male fides. In H: H. S. Feldman v. Province of East Pakistan PLD 1970 Kar. 295 it was argued that the provisions of section 149, C. P. C. Can be invoked only in cases where the amount of court-fee payable is open to doubt and cannot be ascertained by the Court till record is received or in case of bona fides mistake in calculation. The contention was repelled by this Court and It was held that "there are no words in section to countenance or warrant such a limited construction of the section. In fact, the section appears to vest a very wide discretion in the Court." The Court after comparing section 149, C. P. C. Of the present Code with section 582-A of the old Code which was a parallel provision, came to the conclusion that while the discretion to make up deficiency under the penal Code was exercisable only on the ground of mistake as to the amount of requisite stamp, the present provisions confer unfettered discretion upon the Court. It was, therefore, held that the view that the concession referred in section 149, C. P. C. Must be restricted to canes where there was bona fide misunderstanding of the law as to valuation was rejected. It was held that the discretion conferred on the Court is not confined to cases of mistake in calculation. In Shahnawaz and others v. Muhammad Yousuf and others 1972 SCMR 179 their Lordships of the Supreme Court held : "Unless the plaintiff is guilty of contumacy or positive male fides in putting in deficient court-tees along with his plaint, the Court could in its discretion allow time to the plaintiff to put in the deficient court-fees.. In the facts and circumstances of the case it could not be said that the plaintiffs had been plainly very negligent, and had moreover, completely failed to provide any excuse for their default. They had offered to pay the deficit court-fees and the civil Judge had permitted them to do so. Furthermore, under Order VII. Rule 11 of the Code of Civil Procedure the plaint can only be rejected in a case where the relief claimed is under-valued and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so."
8. Taking the above principles laid down by high Judicial Authorities as a guide, I have come to the conclusion that the plaintiffs in this vase are not guilty of contumacy or male fides. The plaint was admitted after nominal court-fees were paid on the alternate prayer and in the plaint the plaintiffs had incorporated an undertaking to pay the deficit court-fee whenever required.
9. I therefore, allow the application and permit the plaintiffs to pay deficit court-fee by or/on 1-6- 1976. If the court-fee is not made up by that time the plaint shall stand rejected.