P L D 1993 Lahore 90

Before Zia Mahmood Mirza, J

WALAYAT KHAN --- Petitioner

versus

MUHAMMAD SADIQ and others --- Respondents

Civil Revision No.2427 of 1986, heard on 9th March, 1992.

(a) Court Fees Act (VII of 1870)~--

---- S. 28 --- Defect/deficiency in court-fee --- Remedy --- Where document required to
bear a court-fee stamp of specified amount was inadvertently presented/received in Court
without being properly stamped, an opportunity had to be given to the party concerned to
pay proper court-fee.

1985 CLC 2877; AIR 1935 Lah. 124(2); and 1981 Law Notes (NUC) (SC) 214 ret
Syed Muhammad Yousaf Shah v. Additional District Judge etc. 1985 CLC 2877; Zafar
Ali Mizza v. Mst. Kulsum Beguni 1989 CLC 1211; Siddique Khan and 2 others v. Abdul
Shakur Khan and another PLD 1984 SC 289; Nur Ahmad v. Muhammad Jan PLD 1972
Pesh. 164; Muhammad Sher V. Muhammad Khan PLD 1975 Lah. 1016 and Syed
Muhammad Yousaf Shah v. Additional District Judge etc. 1985 CLC 2877 rel.

(b) Court Fees Act (VII of 1870)

---- Preamble --- Object of Court Fees Act, 1870, is to secure revenue for the benefit of
the State and provisions thereof, are not to be used for non-suiting a party on account of
some technical/procedural defect/omission.

(c) Court Fees Act (VII of 1870)-

S. 28 --- Civil Procedure Code (V of 1908), S. 149 --- Deficiency/defect in payment of

court fee --- Remedy --- Where requisite court-fee for document in question had been
supplied with the permission of Court, defect/deficiency therein would stand completely
cured and presumption would be as if court-fee had been paid and document had been
stamped right from the beginning --Question of limitation would be irrelevant in
circumstances.

(d) Civil Procedure Code (V of 1908)

---- OXLI, R. 4 --- Appeal --- One of several plaintiffs or defendants could obtain reversal
of whole decree where same proceeded on ground common to all Where some of the
heirs had filed appeal while others were arrayed as respondents, appeal was competently
filed. F *

PLD 1962 Dacca 23 and PLD 1962 Pesh. 199 rel.

Sh. Naveed Shahryar for Petitioner. Ch. Nabi Ahmad Cheema for Respondents No.1 and
9 Nemo for the Remaining Respondents.

Date of hearing: 9th March, 1992.

JUDGMENT

This civil revision is directed against the judgment and decree dated 8-12-1986
passed by Additional District Judge, Gujrat dismissing the petitioner's appeal on the
ground of non-payment of court-fee on the decree sheet.

Page No. 1 of 5
 2. Facts necessary for the disposal of this petition, briefly stated, are that Ghulam.
Qadir son of Imam Din respondent No.5 was the owner of land measuring 3 Kanals 17
Marlas comprised in Khasra No3O8 situate in village Malka, tehsil Kharian, District
Gujrat. He sold 1 Kanal 3 Marlas out of this Khasra to Muhammad Din, the predecessor-
in-interest of Walayat Khan petitioner and respondents Nos.10 to 14 vide mutation dated
14-11-1971. He sold another 12 Marlas out of the said Khasra number to Muhammad
Sadiq respondent No.1 herein through a registered sale-deed dated 2-12-1980. It appears
that dispute arose between the vendees with respect to the area respectively purchased by
them out of the aforementioned Khasra number which resulted in litigation between
them. Respondent No.1 brought a suit against the present petitioner and other respondents
for possession of 12 Marlas of land purchased by him from Ghulam Oadir alleging that
he had taken possession of the suit area from its previous owner but was illegally and
forcibly dispossessed therefrom by Walayat Khan the petitioner, his, two brothers,
respondents Nos.10 and 11 and respondents Nos.2 to 4. Petitioner and other legal heirs of
Muhammad Din i.e. respondents Nos.10 to 14 also filed a suit for declaration and
permanent injunction assailing the validity of the afore-referred sale made by Ghulam
Qadir in favour of Muhammad Sadiq respondent No.l.

3. Both the suits were consolidated as they were between the same parties and the piece
of land forming the subject-matter of controversy was also the same. Learned trial Court
framed consolidated issues arising from the two suits and after recording the evidence led
by the parties decreed the suit of respondent No.1 and dismissed that of the petitioner
and, his other co-heirs vide judgment dated 19-2-1986.

4. Petitioner, his mother and two sisters preferred an appeal against the judgment and
decree of the trial Court. Accompanying the memorandum of appeal were two decree-
sheets, one prepared in the suit of respondent No.1 and the other, in the suit of the
petitioner and his co-heirs but the court-fee stamp was affixed only on one decree-sheet.
C.O.C. gave a note on the memorandum of appeal on 1-3-1986 that the decree-sheet
(obviously the one unstamped) required the court-fee of Rs.2. Case of the petitioner is
that the note/objection of the C.O.C. was never pointed out to him or his counsel nor was
he ever called upon to pay the requisite court-fee on the unstamped decree-sheet and that
he came to know of the omission only when his counsel inspected the file and
immediately thereafter, requisite court-fee was paid by affixing an additional stamp of
Rs.2 on the application which the learned counsel moved before the Additional District
Judge the same day stating therein that the requisite court-fee on the decree-sheet was
paid and the same be placed on the file. Additional District Judge allowed this application
subject to all just exceptions and objections, if any, by the opposite-party ....... At the time
of final hearing of the appeal, however, the learned Additional District Judge observed
that the petitioner in his application made on 5-11-1986 had stated that the court-fee of
Rs.2 had been paid on the decree-sheet "But in spite of it, no court-fee is affixed on the
decree-sheet". Counsel for the petitioner sought to explain before the Additional District
Judge that the application made on 5-11-1986 bore the court-fee of the value of Rs.4
which included the court-fee payable on the decree-sheet. It was also argued before the
Additional District Judge with reference to the case reported in 1985 CLC 2877(Lahore)
that the petitioners' appeal could not be thrown out without affording him an opportunity
to make up the deficiency in the court-fee. Learned Additional District Judge repelled this
contention with the observation that the petitioner had made no request for making good
the deficiency and instead submitted an application bearing court-fee stamp of Rs.4.
Regarding the petitioner's argument that the application dated 5-11-1986 also bore the
court-fee, stamp which was to be affixed on the decree-sheet, the learned Judge observed
that the deficiency in court-fee was made good after the period of limitation for filing the
appeal and relying upon AIR 1935 Lahore 124(2) where it was held that an appeal
accompanied by an insufficiently stamped decree would be deemed to have been filed for
the purpose of limitation only on the date when it is filed again with properly stamped
decree, proceeded to dismiss the appeal summarily vide the impugned judgment.

5. Learned counsel appearing in support of this petition submitted that it was through
sheer inadvertence that the court-fee stamp was not affixed on one of the two decree-
sheets appended with the memorandum of appeal and that as soon as the petitioner came
to know of this omission which was detected by his counsel on inspecting the file, he
paid the requisite court-fee of Rs.2 by affixing an additional stamp of that value on the

Page No. 2 of 5
application dated 5-11-1986 which was moved before the Additional District Judge for
placing the deficient court-fee on the file. Learned Additional District Judge was,
therefore, not right in dismissing; the appeal on account of non-payment of court-fee on,
the decree-sheet and he was also wrong in holding that since the deficiency was made
good after the expiry of the period of limitation for filing the appeal, the appeal would be
deemed to have been filed on the date the decree-sheet was properly stamped. According
to the learned counsel, reliance of the learned Additional District Judge on AIR 1935
Lahore 124(2) was misconceived as the precedent case was distinguishable on facts.
Learned counsel further contended that the note of COC regarding the non-'payment of
court-fee on the decree-sheet was never pointed out to the petitioner or his counsel. Even
the learned Additional District Judge when admitting the appeal to regular hearing did not
point out the deficiency nor did he call upon the petitioner to pay the requisite court-fee
on the decree-sheet. It was submitted that the appeal of the petitioner could not be
dismissed on the ground of nonpayment of court-fee without first giving him an
opportunity to make up the deficiency in the court-fee. In support of his submission,
learned counsel relied upon Syed Muhammad Yousaf Shah v. Additional District Judge,
etc. 1985 CLC 2877, War Ali Mirza v. Mst. Kulsuin Begum 1989 CLC 1211 and
Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289.

6. Learned counsel appearing for respondents Nos.1 and 9 did not controvert the factual
position afore noted but he submitted that the fact remained that despite the order of the
learned Additional District Judge allowing the petitioner's application for payment of
court-fee, the decree-sheet remained unstamped. Learned counsel for the respondent also
raised an objection that the appeal against the judgment and decree of the trial Court was
not filed by all the legal heirs of Muhammad Din in so far as two of the petitioner's
brothers (respondents Nos. 10 and 11 herein) did not join as appellants and even the
present revision petition was filed by the petitioner alone. Learned counsel relying upon
1981 Law Notes (NUC) (SC) 214 contended that the appeal and the revision petition
were not properly constituted and that the judgment and decree of the trial Court having
become final qua the non-appealing parties could not have been set aside at the instance
of only some of the legal heirs of Muhammad Din.

7. Before proceeding to examine the contentions of the learned counsel for the parties, it
would be appropriate to clarify that the memorandum of appeal was accompanied by two
decree-sheets and not three as erroneously stated by the learned Additional District Judge.
The third copy, it was stated by the learned counsel for the petitioner, was an additional
photo copy of a decree-sheet. Be that as it may, it was only one decree-sheet appended
with the memo of appeal which did not bear the requisite court-fee of Rs.2. This omission
was obviously inadvertent. It could not have been intentional because it does not stand to
reason that the petitioner who had paid the court-fee on one decree-sheet would
deliberately avoid payment thereof on the other particularly when it involved only a
paltry amount of Rs.2. In fact, it was neither held by the learned Additional District Judge
nor was it the contention of the respondents that non-payment of court-fee on the decree
was intentional or deliberate. That being so, the defect/deficiency in question could well
be remedied under section 28 of the Court Fees Act which provides that if any document
is through mistake or inadvertence received, filed or used in any Court or office without
being properly stamped, the Presiding Judge or the head of the office, as the case may be,
or in the case of a High Court any Judge of such Court, may, if he thinks fit, order that
such document be stamped as he may direct; and, on such document being stamped
accordingly, the same and every proceeding relative thereto shall be as valid as if it had
been properly stamped in the first instance. On the language of the provision, the matter
no doubt seems to rest in Court's discretion but the legal position is fairly wen settled that
if a document required to bear a court-fee stamp of specified amount is inadvertently
presented/received in Court without being properly stamped, an opportunity has to be
given to the party concerned to pay proper court-fee. In Nur Ahmed v. Muhammad Jan
PLD 1972 Peshawar 164 where the memorandum of appeal affixed with deficient court-
fee stamps was received by the office through "an inadvertent mistake', it was held that
the defect in deficiency of court-fee could be remedied under section 28 of the Court Fees
Act by calling upon the appellant to make good the deficiency. Similarly, in the case of
Muhammad Sher v. Muhammad Khan PLD 1975 Lahore 1016, this Court while dealing
with the objection with regard to the improper court-fee stamp affixed on the copy of the
judgment held that the document was received in Court through mistake and inadvertence

Page No. 3 of 5
and, therefore, in exercise of the power under section 28 of the Court Fees Act directed
that "the document be stamped with the one eight annas stamp supplied by the appellant
(at the later stage)". Supreme Court of Pakistan while stating the well-accepted rule,
about Court's attitude towards the Collection of court-fee as agent of the State was
pleased to observe in Siddique Khan's case (supra) "the Court Fees Act like the other
fiscal statutes is to be construed strictly and in favour of the subject; and that it was
passed with the object of securing revenue for the benefit of the State and not to arm
a litigant with a weapon of technicality to harass his opponent. In the same judgment,
it was held at page 321-322, "It is true that the 'documents' mentioned in various sections
including sections 4 and 6 cannot be filed/received unless "proper fee" is paid, therefore
Section 28 is a general consequential and remedial but residuary provision in that behalf,
but 'proper' stamp is the subject thereof. There is no watertight compartlisation that it is
only the duty of the litigant to look into the what is proper fee or proper stamp and not of
the public functionaries concerned. Where one's duty ends the other's starts. It is also
not difficult to visualise that the 'obligation' and 'function' are complementary to each
other". Following the dictum of Supreme Court in the case of Siddique Khan, this
Court held in Syed Muhammad Yousaf Shah v. Additional District Judge etc. 1985
CLC 2877 that the appeal could not be thrown out on the ground that the decree-
sheet attached with the memorandum of appeal carried court-fee stamp of Re.1
instead of Rs.2 without calling upon the petitioner to make up the deficiency and
allowing him to do so. Similar view was taken in the case from Karachi High Court
reported in 1989 CLC 1211 and it was held therein whenever a document requiring
to be stamped is presented in a Court without the proper court-fee stamps, it is the
duty of the Court and its officials to point out the deficiency to the party presenting
the document and to allow him some time to make up the deficiency".

8. In the present case, it is an admitted position that the fact of the decree-sheet not
being affixed with court-fee stamp of Rs.2 ' was never pointed out to the petitioner nor
was he called upon either by the learned Additional District Judge or by the ministerial
staff to pay the requisite court-fee. On the other hand, the petitioner himself on detecting
the omission moved the application before the appellate Court on which he affixed an
additional court fee stamp of Rs.2 and requested that it may be placed on the file. Learned
Additional District Judge allowed this application but at the time of final hearing of the
appeal took a hyper technical view and observed that since the court-fee stamp was not
affixed on the decree-sheet itself, requisite court-fee was still unpaid. This objection was
merely of a formal and technical nature which had no substance in it. Law is fairly well
settled that the object of the Court Fees Act is to secure the revenue for the benefit of the
State and its provisions are not to be used for non-suiting a party on account of some
technical/procedural defect/omission. Petitioner having affixed an additional court-fee
stamp of Rs.2 on the application for the purpose of decree-sheet (which fact is not
disputed by the Additional District Judge) had certainly paid the requisite court-fee on the
decree-sheet and thus made good the deficiency. The mere fact that the stamp was not
placed on the decree-sheet was inconsequential. Learned Additional District Judge thus
acted illegally in dismissing the petitioner's appeal on the ground of non-payment of
court-fee on the decree-sheet. He also took an incorrect view of law in holding that
since the deficiency iii court-fee in any case was made good after the period of
limitation for filing the appeal, the appeal was barred by limitation. This view, I am
afraid, cannot be sustained in the presence of the provisions of section 28 of the
Court Fees Act and section 149, C.P.C. Section 28 of the Court Fees Act provides in
express terms that on the document being stamped thereunder, the document itself
and every proceedings relating thereto shall be as valid as if the document had been
properly stamped in the first instance. To the same effect is the provision contained
in section 149, C.P.C. which lays down that "where the whole or any part of any fee
prescribed for any document by the law for the time being in force relating to court-
fees has not been paid the Court may, in its discretion, at any stage, allow the
person, by whom such fee is payable, to pay the whole or part, as the case may be, of
such court-fee; and upon such payment the document, in respect of which such fee is
payable, shall have the same force and effect as if such fee had been paid in the first
instance". In the instant case, the requisite court-fee for the decree-sheet was
supplied with the permission of the lower appellate Court. The defect, therefore,
stood completely cured and the law would presume as if the court-fee had been paid
and the decree-sheet had been properly stamped right from the beginning.

Page No. 4 of 5
-Question of limitation was thus wholly irrelevant. Refer "Muhammad Sher v.
Muhammad Khan" (supra). Supreme Court of Pakistan expressed the view in the
afore-referred case of Siddique Khan that "the failure to supply proper court-fee in
the context of the Court Fees Act and section 149 and Order VII, rule 11(c) can at
best be equated with non-prosecution and not with non institution 6r presentation of
the matter/document nor with the bar of limitation". The judgment reported in AIR
1935 Lahore 124(2) which the learned Additional District Judge relied upon for invoking
the bar of limitation on the ground that the court-fee was paid on the decree after the
expiry of limitation period is distinguishable on facts as in that case, the appeal was
returned because the decree-sheet appended therewith was insufficiently stamped and it
was re-filed with properly stamped decree-sheet after the limitation for the appeal had
expired. In the present case; however, the appeal was filed well within time. It was duly
entertained and admitted to regular hearing and was very much pending when the
requisite court-fee for the D decree-sheet was supplied by the petitioner, of course, with
the permission of the appellate Court. The appeal was neither returned nor re-filed. That
being so, the precedent relied upon by the learned Additional District Judge had no
application to the present case. Thus, viewed from whatever angle, the impugned
judgment of the learned Additional District Judge cannot be sustained.

9. As regards the objection of the learned counsel for the respondents that the appeal
before the lower appellate Court was not properly constituted because it was not filed by
all the defendants/legal heirs of Muhammad Din deceased, suffice it to observe that no
such objection was taken by the respondents before the lower appellate Court which even
otherwise was fully competent by virtue of the provisions of Rule 4 of Order 41, C.P.C. to
grant full relief and reverse or vary the impugned decree even in favour of non appealing
defendants. Rule 4 reads as follows:---

"Where there are more plaintiffs or more defendants than one in a suit, and the decree
appealed from proceeds on any ground common to all the plaintiffs or to all the
defendants, any one of the plaintiffs or of the defendants may appeal from the whole
decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all
the plaintiffs."

Under the provision aforequoted, any one of the plaintiffs or the, defendants can
appeal against the whole of the decree where there are more plaintiffs or more defendants
than one in a suit and the decree appealed from proceeds on any ground common to all
the plaintiffs or to all the defendants. In the instant case, petitioner and other legal heirs of
Muhammad Din claimed to be the co-owners of the suit land. The decree of the trial
Court passed against them proceeded on a ground common to all of them. In the
circumstances, appeal filed by the petitioner, his mother and two sisters against the whole
of the decree passed by the trial Court was thus quite competent particularly when the
petitioner's two brothers who had not joined as appellants were arrayed as respondents in
the appeal. The objection raised by the learned counsel for the respondents is thus
repelled as having no substance. Refer PLD 1962 Dacca 23 and PLD 1962 Peshawar 199.

In view of what has been said above, this revision petition is allowed judgment
and decree of the learned lower Appellate Court set aside and the case remanded for fresh
decision of the petitioner's appeal on merits and in accordance with law. The learned
District Judge may hear and decide the appeal himself or entrust it to any Additional
District Judge. No order as to costs.

AA./W-21/L Revision accepted.

Page No. 5 of 5
1988 S C M R 759

Present: Shafiur Rahman, Ali Hussain Qazilbash and Usman Ali Shah, JJ

ATA MUHAMMAD--Appellant

versus

ABDUL AZIZ and others—Respondents

Civil Appeal No. 438 of 1987, decided on 25th January, 1987.

(Against the judgment and order of the Lahore High Court, Lahore dated 5-10-1987 in
Writ Petition No.2463 of 1986).

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

--S.15--Civil Procedure Code (V of 1908), O.VII, R.11(c)--Constitution of Pakistan

(1973), Art. 185(3)--Appeal--Deficient court-fee-High Court refusing to interfere in
Constitutional jurisdiction--Leave to appeal granted to tenant to examine correctness of
view taken by District Judge in an appeal under S.15 of Ordinance (VI of 1959) with
regard to deficiency in court-fee and judgment of High Court in Constitutional
jurisdiction not interfering with that order.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)-

---S.15--Civil Procedure Code (V of 1908), O.VII, R.11(c)--Court;' Fees Act (VII of

1870) , S. 28--Constitution of Pakistan (1973), Art. 199--Appeal--Deficient in
court-fee--Dismissal without determining deficiency and allowing time to make up
same--Interference is constitutional jurisdiction--Scope--Appellant's plea that no
court-fee was required rejected and appeal dismissed as not competent-Appellant's
Constitutional petition failed because he had expressed his unwillingness to pay
court-fee and impugned order was treated as neither without jurisdiction nor
against law--Contention raised before Supreme Court that under the law deficiency
in court-fee was to be determined as a fact and time was to be allowed for making
up deficiency and it was only when such deficiency was not made up that penal
consequences of not entertaining the appeal could follow-Appeal having been
entertained and proceedings undertaken by District Judge, held, not only the exact
court-fee payable was required to be determined and the appellant informed, but
reasonable time should have been allowed to make it up--Appeal accepted by
Supreme Court and case remanded to District Judge for proceeding in accordance
with law.

Siddique Khan v. Abdul Shakur Khan P L D 1984 S C 289 ref.

(c) Court Fees Act (VII of 1870)-

--S.28--Civil Procedure Code (V of 1908), O.VII, R. 11(c)-- Deficiency in court-fee

discovered during proceedings--Making up of such deficiency--Interpretation of
S.28 of Act (VII of 1870)--Philosophy of Court Fees law--Rent appeal without
court-fee dismissed as not competent--Deficiency not determined nor time allowed
to make up deficiency--Appeal having been entertained and proceedings under-
taken, Court was not only required to determine deficiency and inform appellant
but also to allow him reasonable time to make if up—Language of the law indeed
gives the impression that it is discretionary with the Presiding Officer or the Judge
to allow such time or not but provisions are not to be used as penalty in first
instance, as these are directed to regulate proceedings and not to thwart the
adjudication or to non-suit a party on account of the purely fiscal provision attached
to the procedure.

Siddique Khan v. Abdul Shakur Khan PLD 1984 S C 289 rel.

Page No. 1 of 4
(d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)--

---S.15--Civil Procedure Code (V of 1908), O.VII, R.11(c)--Court Fees Act (VII of 1870),
S.28--Ejectment proceedings--Rent appeal-Provisions of C.P.C. and Court Fees
Act--Application of--Rent Appeal--Dismissal on account of deficiency in court-fee,
challenged-Held: Apart from S.28 of the Court Fees Act, the enabling provisions of Civil
Procedure Code are certainly attracted to the hearing of appeal by the District Judge in
the matter of addition of parties, their substitution etc. and the law with regard to making
up deficiency in court-fee will also be attracted to proceedings before the District Judge
because no specific provision has otherwise been made therefore.

(e) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)--

---S.15--Constitution of Pakistan (1973), Art.199--Writ jurisdiction, exercise of--

Ejectment proceedings--Rent appeal--Dismissal for deficiency in court-fee--Law laid
down by Superior Courts not followed--High Court's order declining to interfere in writ
jurisdiction, impugned--Held: If act of Additional District Judge was without jurisdiction
in the light of the law laid down by this Court, there is no question of denying appellant
the relief in Constitutional jurisdiction as he had a tangible and material interest in the
proceedings.

Siddique Khan v. Abdul Shakur Khan P L D 1984 S C 289 ref .

Shahid Hussain Kadri, Advocate Supreme Court and Rana M.A. Kadri Advocate-
on-Record (absent) for Appellant.

Ch. Muhammad Hussain, Advocate Supreme Court and M. Sultan Khan, (absent) for
Respondents Nos. 1 and 2.

Date of hearing: 25th January, 1988.

JUDGMENT

SHAFIUR RAHMAN, J.--Leave to appeal was granted to the tenant to examine the
correctness of the view taken by the Additional District Judge on 29-5-1986 in an appeal
under section 15 of the Urban Rent Restriction Ordinance, 1959 with regard to the
deficiency in court fee and the judgment of the High Court, dated 5-10-1987 in
constitutional jurisdiction not interfering with that order.

The respondent-landlord sought the eviction of the appellant tenant from premises
located in Alfaisal Bazar, Gojra, District Toba Tek Singh for non-payment of rent, among
other grounds. The appellant denied the very existence of the relationship of landlord and
tenant between the parties and the only issue framed was whether the relationship of
landlord and tenant existed between the parties. After elaborate examination the
Controller by his order, dated 7-1-1985 held that the appellant was the tenant of the
respondent and further as on his own admission he had not paid rent he was liable to be
ejected and his ejectment was ordered.

An appeal was filed by the appellant in January, 1985 and it came to be decided by the
Additional District Judge on 29-5-1986. As the memo of appeal bore no court-fee at all
an exemption was sought on the analogy that court-fee or suits upto the value of
Rs.25,000 was exempted but this ground was rejected by the learned Additional District
Judge. After rejecting this ground, the learned Additional District Judge passed the
following order-

"Present appeal was presented long before but even now is deficient in court-fee. He even
pleaded otherwise instead of showing his willingness to make up his deficient court-fee.
I, therefore, without going into the merits or demerits of the main case consider that this
appeal as understamped and no appeal in the eye of law and dismiss the same being not
competent in the eye of law. However, while doing so, I grant the appellant one month's
time in order to vacate the premises and deliver its vacant possession to the opposite
party."

Page No. 2 of 4
A Constitutional petition was thereupon filed by the tenant. The learned Judge in the High
Court dismissed the Constitutional petition on the following two grounds--

"The contention of the learned counsel for petitioner that he was afforded no opportunity
for making up deficiency in the court-fee loses its significance when the petitioner
expressed his unwillingness to make up deficiency in the court-fee. The impugned order
passed by the learned appellate Authority in exercise of his powers under section 15 of
the Rent Restriction Ordinance, 1959 was neither without jurisdiction nor against law
pronounced by the superior Courts. The impugned order, therefore, merits no interference
in writ jurisdiction.

Even otherwise it appears that the petitioner intentionally withheld material information
regarding institution of his suit prior in time, to the filing of this petition which disentitled
him from discretionary relief."

Mr. Shahid Hussain Kadri, Advocate, the learned counsel for the appellant, has contended
that even if the provisions of the Civil Procedure Code were inapplicable to the
proceedings in appeal before the Additional District Judge, the principles contained
therein for the purposes of advancing the process of adjudication are being availed of and
could be availed of. According to him, the decision of this Court in Siddique Khan v.
Abdul Shakur Khan P L D 1984 S C 289 fully establishes the law of the land that the
deficiency has not only to be determined as a fact but also time has to be allowed for
making up the deficiency and it is only when such deficiency is not made up penal
consequence of not entertaining the appeal could follow.

Ch. Muhammad Hussain, Advocate, the learned counsel for the respondents, on the other
hand contended that provisions of the Civil Procedure Code were not strictly applicable
to the proceedings in appeal before the Additional District Judge and the Additional
District Judge had exercised a discretion possessed by him and such an order could not be
interfered with in proceedings invoking the constitutional jurisdiction of the High Court.
Besides, according to the learned counsel, the appellant had disentitled himself to any
relief in the constitutional jurisdiction because he had suppressed a vital fact, namely, the
pendency of civil suit.

Section 28 of the Court Fees Act provides as hereunder--

"28.--Stamping documents inadvertently received.--No document which ought to bear a

stamp under is c s all be of any validity, unless and until it is properly stamped.

But, if any such document is through mistake or inadvertence received, filed or used in
any Court or office without being properly stamped, the Presiding Judge or the head of
the office, as the case may be, or, in the case of a High Court, any Judge of such Court,
may, if he thinks fit, order that such document be stamped as he may direct; and, on such
document being stamped accordingly, the same and every proceeding relative thereto
shall be as valid as if it had been properly stamped in the first instance."

The fact remains that this appeal of the appellant which was filed before the District
Judge in January, 1985 was entertained and proceedings were undertaken on it till
29-5-1986 when it came up for adjudication on exemption from court-fee which was
adjudicated upon and the exemption claimed from court-fee was denied to the appellant.
In such a situation not only the exact court-fee payable was required to be determined and
the appellant informed but reasonable time should have been allowed to make it up. The
language of the law indeed gives the impression that it is discretionary with the Presiding
Officer or the Judge to allow such time or not. The entire philosophy of the Court Fees
law has been examined by this Court in the case of Siddique and it is clear that the
provisions are not to be used as penalty in the first instance but are directed to regulate
the proceedings and not to thwart the adjudication or to non-suit a party on account of the
purely fiscal provision attached to the procedure.

Apart from section 28 of the Court Fees Act, the enabling provisions of the Civil
Procedure Code are certainly attracted to the hearing of appeal by the District Judge in

Page No. 3 of 4
the matter of addition of parties, their substitution etc. and the law with regard to the
making up the deficiency in the court-fee will also be attracted to the proceedings before
the District Judge because no specific provision has otherwise been made therefore. If the
act of the Additional District Judge was without jurisdiction in the light of the law laid
down by this Court, there is no question of denying the appellant the relief in the
constitutional jurisdiction as he has a tangible and material interest in the proceedings.

We, therefore, accept this appeal, set aside the judgment of the High Court and that of the
Additional District Judge and remand the proceedings to the District Judge for
determining the exact court-fee payable for calling upon the appellant to pay it by a given
date and to proceed in accordance with law thereafter. No order as to costs.

M.I. /A-177/S Order accordingly

Page No. 4 of 4
P L D 1984 Supreme Court 289

Present: Muhammad Haleem, Actg. C. J., Aslam R iaz Hussain, Muhammad Afial
Zullah and M. S. H. Quraishi, JJ

SIDDIQUE KHAN AND 2 oTHERs-Appellants

versus

ABDUL SHAKUR KHAN AND ANOTHER-Respondents

Civil Appeals Nos. 104 of 1978 and 136 of 1979, decided on 22nd November, 1983.

(On appeal from the Order and judgment of Lahore High Court, dated 18-9-1978 and 25-
10-1975 in R. S. A. No. 778 of 1977 and W. P. 998 of 1975, respectively).

(a) Constitution of Pakistan (1973)

Art. 185(3)-Civil Procedure Code (V of 1908), O. VII, r. I1(c), O. XLl and Ss. 107, 149
& 151-Punjab Pre-emption Act (I of 1913),

' S. 15-Punjab Finance Act (XIV of 1973), S. 8-Court Fees Act (VII of 1870), S. 7(vi)-
Deficiency of court-fee and its effect on limitation Leave to appeal granted to examine
contention (1) whether appellant could avoid paying court-fee calculated on basis of
amendment in law (through Punjab Finance Act, 1973), for paying court-fee on appeal,
filed after amendment, on ground that : right of appeal being vested one, court-fee
leviable at time of institution of snit (which admittedly was prior to amendment by
Finance Act, 1973) was correct court-fee for appeal which would be deemed to be in
continuation of suit : l2) view held in P L D 1972 Lah. 743 according to petitioner's
contention was not correct.-[Court-fee].

Constitution of Pakistan (1973)- .

--- Art. 185(3?--Civil Procedure Code (V of 1908), O. VII, r. l I(c), V. XLI and Ss. 107,
149 & 151-Punjab Pre-emption Act (I of 1913), S. 15 -Court Fees Act (VII of 1870), S.
7(vi)-Deficiency in court-fees and its effect on limitation-Leave to appeal granted to
examine contentions (1) that O. XLI, r. 3 could be read with O. VII, r.. 11(c) and Ss. 107
& 151, C. P. C. ; (2) that appellate Court could also like trial Court, require supply of
deficiency in court-fee under O. VII, r. I 1(c), C. P. C. with consequences accordingly (3)
that difference of opinion amongst superior Courts on such legal question required to be
resolved.

(c) Constitution of Pakistan (19731

-- Art. 185(3)-Civil Procedure Code (V of 1908), O. VII, r. 11(c), O. XLI and Ss. 107,
149 & 151-Punjab Pre-emption Act (I of 1913), S. 15-Court Fees Act (VII of 1870), S.
7(vi)-Deficiency in court-fees and its effect on limitation-Leave to appeal granted to
examine contention that first appeal could not have been rejected as timebarred on
account of defibiency in court-fee, same could be dismissed only if, a party was found
guilty of `contumacy' or "positive mala fide" in paying deficient court-fee as held in 1972
S C M R 179.

(d) Appeal (civil) Appellant succeeding on law point-Case merits remand to appropriate
forum-[Remand].

(e) Civil Procedure Code (V of 1908)

Ss. 107, 149 & 151, O. V11, r. I1(c) & O. XLI-Punjab Pre-emption Act (I of 1913), S. 15-
Punjab Finance Act (XIV of 1973), S. 8Court Fees Act (VII of 1870), S. 7(vi)-Change of
law effected by Punjab Finance Act, 1973, S. 8 was of only regulatory and procedural
type and no one has a vested right in any particular procedure-Court-fee leviable on first
appeal in such case to be calculated in accordance with Punjab Finance Act, 1973 and not

Page No. 1 of 33
law which prevailed at time of filing of suit at a tine earlier to said amendment Court-fees
paid at time of filing suit, held, deficient for appeal in circumstances. -[Court-fee].

Muhammad Nawaz Khan and another v. Makhdoom Syed Ghulam Mujtaba

Shah and another P L D 1970 S C 37 ; Sakhi Muhammad and others v. The Registrar,
Lahore High Court Civil Appeal No. 153 of 1978 ; Mst. Walayat Khatun's case P L D
1979 S C 821 ; Siddique Khan's case Civil Appeal No. 104 of 1978 ; Ahmad Khan v. The
Chief Justice and the Judges of the High Court, West Pakistan, through the Registrar,
High Court of West Pakistan, Lahore and 2 others P L D 1968 S C 171 ; Shain Lai L.
Dogarmal v. Om Prakash L .Sans Ram Aggarwal and others A I R 1955 Pb. 223 ; Sukh
Lai and others v. Devi Lal and others A I R 1954 Raj. l70 ; Chanda Engineers (India)
Ltd., Calcutta and others v. Suresh Chand and others A I R 1954 Vidh. Pra. 47 ; Shamsul
Hassan v. State of Uttar Pradesh A I R 1956 All. 413 ; In re ; Ghosh Beevi A I R 1944
Mad. 406 ; Mst. Bhugabuttv Kooer and others v. Mst. Kushtooree Kooer 15 W R 272 ;
Aradhun Dey and another v. Ghulam Hossein Maloom and others 7 W R 461 ; Mr. G. L.
Fagan and others v. Chundar Kant Banerjee and others 7 W R 452 ; In re Sreenath Ray
Chow.lhry 7 W R 462 ; Parmeshar Kurmi and another v. Bhaktawar and others A I R
1933 All. 20 ; Nandi Ram alias Nandi Lai Agrani v. Jogendra Chandra Dutta and others A
I R 19/4 Cal. 881 ; Chunnilal and others v. Kishandas Ramdas A I R 1926 Nag. 71 ; Firm
Hazi Sheikh Faizullah v. State of Vindhya Pradesh and others A I R 1935 Vidh. Pra. 5 ; R.
M. Seshadri v. The Province-of Madras A I R 1954 Mad. 543 ; Bisan Parshram v. Ganpat
Sakharam and others A I R 1955 Nag. 46 ; Arjuna Govinda v. Amritta Keshiba and others
A I R 1956 Nag. 281 ; Sawaldas Madhavadas v. Arati Cotton Mills Ltd. A I R 1955 Bom.
332 ; In re

Reference No. 16 of 1954 A I R 1955 Bom. 287 ; In re : Abdul Ghafoor A I R 1958 Andh.
Pra. 267 and Amara Eswaramma and others v. Makkam Seethamma A I R 1955 Andh.
Pra. 221 ref.

Syed Manzoor Husain Ghazi's case P L D 1972 Lab. 743 affirmed.

Ahmad Khan's case P L D 1968 S C 171 and Muhammad Sharif v.

Maqsood Ali 1979 Law Notes S C 470

(f) Civil Procedure Code (V of 1908)

---- O. XLI and Ss. 96 to 59, 107 & 108-Second appeal-Procedure Procedure for second
appeal would, by and large, - have to be discovered from what is prescribed under O.
XLI, C. P. C. read with other provisions of C. P. C. particularly those of Ss. 96 to 99, 107
& 108, C. P. C.

(g) Civil Procedure Code (V of 1908)

- S. 107 and O. VII, r. 11(b), (c) & O. XLI, r. 3-Provisions of S. 107 operates amongst
others, as main link between provisions of 9. VII, r. 11(b)(c) & O. XL1, r. 3, C. P. C.

(b) Civil Procedure Code (V of 1908)-

S. 107 & O. XLI, r. 3-Application of S. 107-Provisions of S. 107to be co-related and read

with O. XL1, r. 3.

(P) Civil Procedure Code (V of 19o8)

-- S. 107 and Os. XLI & V11, r. I1(b)(c)-Section 107, C.P.C., without making any
particular reference to particular stage of appeal or document therein is applicable to
appeal proceedings-Section 107(2) applicable to memorandum of appeal.-[Appeal
(civil)].

There is nothing in the language of section 107, C. P. C. to suggest that it made any
specific provision of the C. P. C. in its terms, applicable to appeals. Subsection (1) of

Page No. 2 of 33
section 107 thereof no doubt relates to certain powers and functions of an appellate Court
which are spelled out in Order XLI, C. P. C. also (See Order XLI, rules 4, 20, 23. 23-A,
24, 25, 27, 28 and 33); but that does not mean that for this reason the other powers and
duties of the trial Court not so easily relatable to specific orders/rules of C. P. C. are not
applicable to the appellate Court. Subsection (2) of section 107 would, if that were so,
become by and large, redundant. Similar conclusion would be reached when examining
whether the provisions specifically made
for appeals in Order XLI or elsewhere (other than section 107) furnish complete
procedure for the appeals. The answer is in. the negative. But for section 107 particularly
subsection (2) thereof the appellate Court would not be able to process the appeal
proceedings to the stage of completion for hearing. Order XLI, C. P. C. has not provided
for all eventualities. Order VII, rules 11(b) and (c) amongst others by virtue of section
107(2) fill the gaps of procedure which is not directly provided as the appeals in Order
XLI, C. P. C. Thus, in the relevant context section 107 without making any particular
reference to a particular stage of appeal or a document therein, is applicable to appeal
proceedings. The argument that the omission of the phrase `memorandum of appeal'
from section 107(2) supports the plea 'that in term it would not apply to appeal and that it
is applicable thus only to 'plaint', is without any support from the point of view of logic or
practice. It is, therefore, obvious that section 107(2) is also applicable to memorandum of
appeal.

Balwant Singh's case A I R 1947 Lab. 210 not approved. _

(I) Civil Procedure Code (V of 1908)-- O. XL1, rr. 2 & 3, O. VI1, r. 11(b)(c) & S. 107-
Plaint and memo randum of appeal can be treated at par in procedural respects in
accordance with enabling and very wide-Provisions of S. 107(2), C. P. C. No exception in
that respect justified-Order XLI, r. 3, C. P. C. to be read with other relevant provisions of
C. P. C. regarding drawing up of proceedings of "plaint" as applicable to appeal-
Expression "here in before" used in O XL1, r. 3, C. P. C. used in a wider sense as
relatable to O. XL1, rr. 1 & 2 which would be attracted by reference to S. 107(2), C. P.
C.-Order VII, r. 11(b), fc) applicable to plaints as also to memorandum of appeals-Order
XLI, r. 3, C. P. C., held, not exhaustive in that behalf.

Order XLI, rule 3, C. P. C. is to be read with the other relevant provisions of C. P. C.

regarding drawing up of and processing of the `plaint' as applicable to appeal. The
expression 'hereinbefore' has also been used in this context in rule 3 in a wider sense as
relatable in rules 1 and 2 of Order XLI, and other rules in C, P. C. which would be
attracted by reference to section 107(2), C. P. C. The same as discussed earlier, provides
for all relevant matters which have not been specifically mentioned in rule 3 of Order
XLI, in this behalf. And that being so, clause (c) of Order VII, rule l l which relates to the
drawing up of the plaint on a properly stamped paper as an essential requirement, to save
it from ultimate rejection for nonpayment of the court-fee would also apply to the
appeals. Accordingly it is held that Order XLI, rule 3 is not exhaustive in this behalf.

It will not be correct to say that the `plaint' and `memorandum of appeal' are such
documents that they cannot at all be treated at par in procedural respects in accordance
with the enabling and very wide provision in that behalf made in section 107(2), C. P. C.
Accordingly there is no justification for making an exception.

There is another aspect of the matter. The application of Order VII, rule 11(b)(c) to
appeals in one sense at least is salutary for the progress of the appeal, for hearing. If it is
applied then as would be presently shown it might not be possible to reject a
memorandum of appeal on grounds of deficiency of court-fee unless in accordance
therewith an opportunity is provided, to supply the required court-fee. It is also conducive
for a purpose amongst others, for which Order VII, rule 11(b) and (c) were enacted
namely collection of State revenue in so far as appeal stage of the Court process is
concerned. It is obligatory under Order VII, rule 11(c) to afford one opportunity to supply
the deficiency in court-fee, before rejection of the plaint under the said provision. There
are two interpretations of section 107(2) (when read with Order VII, rule 11(c) and Order
XLI, rule 3) then the one favouring the saving of the appeal proceedings from rejection
on ground connected with collection of public revenue by affording the said opportunity,
would have to be adopted. Thus, the age old conflict on this fiscal-cum-procedural

Page No. 3 of 33
question is resolved in favour of the subject. The result is that Order VII, rules 11(b) and
(c) applies to plaints as also to memoranda of appeals.

Ghulam Muhammad v. Barkat Ali and others A I R 1936 Lab. 935 ; Famidimukkala
Sitharamayya and others v. Ivaturi Ramayya and another A I R 1938 Mad. 316 ; Hussain
Ali Khan v. Ambika Prasad 13 Luck. 397 ; Basavayya v. Venkatappaya A I R 1926 Mad.
676 ; Ramagati Singh v. Sitab Singh A I R 1939 Pat. 432 ; Venkanna v. Atchutaramanna A
I R 1938 Mad. 542 ; Har Lai v. Sri Ram 14 Lab. 312 ; $alto v. Amar Singh 1 Lab. 220 ;
Lekharam v. Ramji Das 1 Lab. 234 ; Gursaran Das v. District Board, Jallundur 102 I C
615 ; Raghbir Saran v. Mi. Sohan Debi 6 Lab. 233 and Balwant Singh's case A I R 1947
Lab. 210 not approved.

(k) Pre-emption
Right of pre-emption not "predatory"--To deprive a plaintiff or appellant of any relief
simply because that happened to be a pre-emption matter not lawful-Constitution of
Pakistan (1973), Art. 31.

Gobind Dayal v. Inayatullah I L R 7 All. 775 ; Allah Ditta v. Muhammad Ali P L D 1972
S C 59 ; Hadayat Ullah v. Murad Ali Khan P L D 1972 S C 6Q and Jan Muhammad v.
Shukaruddin 1980 C L C 186 ref. (l) Civil Procedure. Code (V of 1908)- .

S. 26-Institution of suit is by presentation of plaint * when it is accepted by Presiding

Officer "any defects notwithstanding".

Muhammad Siddique v. Zawar Hussain Abidi P L D 1976 S C 572 ref.

(nr) Limitation Act (171; of 1908)

-- Ss. 3 & 5-Civil Procedure Code (V of 1908), Ss. 148 & 149-Validity of limitation not
effected by deficient court-fee.-[Limitation].

Gavaranga Sahu v. Botokrishna Patro I L R 32 Mad. 305 and Hari Ram v. Akbar Hussain
I L R 29 All. 749 ref.

(n) Civil Procedure Code (V of 1908)

-- O. VII, r. 11 & Ss. 148 & 149-Plaint, held, is a plaint even if not properly stamped.-
[Plaint].

Ramgopal Chunilal v. Ramsarup Baldevdas and others A I R 1934 Bom.

91 ; George Banjaman Hampson v. Jeewanmoll Bros. A 1 R 1935 Sind 225 and Stuart
Skinner alias Nawab Mirza v. William Orde and others 6 1 A 126 ref.

(o) Court Fees Act (VII of 1870)

-- Act like other fiscal statutes to be construed strictly and in favour of subject-Object of
Act to secure revenue for benefit of State and not to arm litigant with weapon of
technicality to harass his opponent.

Rachappa Subrao v. Shidappa Venkatrao A I R 1918 P C 188 ;

Muhammau Sharif v. Mst. Natho P L D 1965 Lab. 686 and Sharaf Faridl v. M. S. Shahani
P L D 1975 Kar. 59 ref.

(p) Civil Procedure Code (V of 1908)

-- Ss. 148, 149 & O. V11, r. 11(c)-Court Fees Act (VII of 1870), S. 7(v)-Limitation Act
(IX of 1908),. S. 5-Failure of supply of proper court-fees in context of Court Fees Act,
1870 and S. 149 and O. VII, r. 11(c), C. P. C. can at best be equated with non prosecution
and not with non-institution or presentation of matter/ document nor with bar of
limitation-Considerations in this behalf for exercise of discretion under Ss. 148 & 149, C.

Page No. 4 of 33
P. C. and relevant provisions of Court Fees Act, 1870 should be different from those
under S. 5, Limitation Act, 1908-Held, when considering options for exercise of
discretion for grant of time for supply of deficiency in court-fees considerations relevant
to bar of limitation riot to be taken into account.-[Limitation].

The failure to supply proper court-fee in the context of the Court Fees Act and section
149. and Order V1I, rule 11(c), C. P. C. can at best be equated with non-prosecution and
not with non-institution or presentation of the matter/document nor with the bar of
limitation. Accordingly, considerations in that behalf for exercise of discretion under
sections 148, 149, and the relevant provisions of Court Fees Act should be different from
those under section 5 of the Limitation Act, which in any case does not apply to the suits.
To apply the latter to the former cannot be justified on any rule of interpretation.
When considering the options for exercise of discretion for grant of time for supply of
deficiency in the court-fee, considerations relevant to bar of limitation shall not be taken
into account.
Mst. Parveen v. Mst. Jamshed Regum P L D 1983 S C 227 and Shahna Khan v. Aulia
Khan P L D 1984 S C 157 re-affirmed

Jagat Ram v. Miser Khairaiti Ram A I R 1938 Lab. 361 ref.

(q) Court Fees Act (VII of 1870y

-- Civil Procedure Code (V of 1908)-Limitation Act (IX of 1908)Separation of law of

court-fees from Civil Procedure Code, notwithstanding judicial exercise, through
legislative intervention, desired by Supreme Court with further observation that law of
limitation if at all to be introduced in relation of court-fees same has to be done clearly
and specifically in law on that subject.

Skinner's case 6 I A 126 held a guideline for preposition.

(r) Civil Procedure Code (V of 1908)

0. VII, r. 11(b)(c) read with S. 107(2) and O. XLI, r. 3-Enabling provisions of O. VII, r.
11(b)(c), held, applicable to appeals.

Balwant Singh's case A I R 1947 Lah. 210 ; Ghulam Muhammad v. Barkat Ali and others
A 1 R 1936 Lah. 935 ; Pamadimukkala Sitharamayya and others v. Ivaturi Ramayya and
another A I R 1935 Mad. 316 ; Hussain Ali Khan v. Ambika Prasad !3 Luck. 397 ;
Basavayya~ v. Venkatappayya A I R 1926 Mad. 676 ; Ramagati Singh v. Sital Singh A I R
1939 Pat. 432 ; Venkanna v. Atchutaramanna A I R 1938 Mad. 542 ; Har Lal v. Sri Ram
14 Lah. 312 ; Satto v. Amar Singh 1 Lah. 220 ; Lekharam v. Ramji Das 1 Lah. 234 ;
Gursaran Das v. District Board, Jullundur 102 1 C 615 and Raghbir Saran v. Mi. Sohan
Debi 6 Lah. 233 not approved.

Jai Singh Gir v. Sita Ram Singh A I R 1923 All. 349 and Achut Ramchandra Pal and
others v. Nagappa Bab Balgay and others A I R 1914 Bom. 249 ref.

(s) Civil Procedure Code (V of 1908)

-- O. VII, r. 11 & S. 149-Limitation to be saved in cases which law requires the Court to
allow plaintiff to correct valuation of relief claimed in suit which must necessarily entail
making up deficiency in stamp paper affixed on plaint-Time to be automatically enlarged
in cases in which Court has discretion to grant time to pay whole or part of court-fee
prescribed-Plaintiff when required to correct valuation of relief claimed in suit, shall
further be required to supply requisite stamp paper and on compliance, that shall have
same force and effect as if such fee had been paid in first instance.

Muhammad Nawaz Khan v. Makhdoom SYed Ghulam Mujtaba Shah P L D 1970 S C 37

reiterated.

(t) Civil Procedure Code (V of 1908)

Page No. 5 of 33
-- O. VII, r. 11 & Ss. 148 & 149-Exercise of discretion under S. 149, C. P. C.-Plaintiff
being guilty of contumacy and acting in positive mala fides manner in regard to deficient
court-fee may be refused discretion of Court under S. 149, C. P. C.-Court on discovery of
an omission/error in valuation or deficiency in court-fee, shall acting under O. VII, r.
11(b), (c) allow time to plaintiff to make correction and supply deficiency and plaint in
that case, shall be deemed to have validly been filed on date of original presentation
notwithstanding fact that court-fee was supplied after expiry of period of limitation-
Plaintiff, if guilty of contumacy or commits positive act of mala fides, plaintiff could be,
held, disentitled to further exercise

of discretion under S. 149 read with S. 148, C. P. C.

Muhammad Nawaz Khan v. Makhdoom Syed Ghulam Mujtaba Shah P L D 1970 S C 37

and Shah Nawaz v. Muhammad Yousaf and 3 others 1972 S C M R 179 fol.

(u) Civil Procedure Code (V of 1908)

-- O. VII, r. 11 and Ss. 148 & 149-Court-fee-Deficiency-Order of Court to make good

such deficiency-Word "contumacy" in context used in general dictionary sense and not as
a word of art-Plaintiff, if allowed time to supply deficiency in court-fees under O. VII, . r.
11(c) as a matter of course and obligation and plaintiff fails to do so, and asks for more
time without some justification that would amount to his being obstinate and stubborn in
ignoring or defying requirement and authority of law-Repetition of such conduct by
plaintiff amounts to contumacy.-[Words and phrases].

Sohara v. Rashid Ahmad P L D 1981 Lah. 261 approved. (v) Civil Procedure Code (V of
1908)

-- O. VII, r. 11 and Ss. 148 & 149-Court-fee-Deficiency-Order of Court to make good

such deficiency-Mala fide,-"Mala fide" equated with "malice in fact", nature and
connotation whereof would depend upon circumstances of each case and situation vis-a-
vis personal. motive involved-Thing done in bad faith against another party concerned in
a lis that can partake of "wrongful loss" or "wrongful gain" but if none of other parties to
lis was involved and such act was regarding revenue of State, then that will not ordinarily
reflect on lis between parties directly.

Federation of Pakistan v. Saeed Ahmad P L D 1974 S C 151 ref: (w) Civil Procedure
Code (V of 1908y

-- S. 149-Grant of time under S. 149, C. P. C., held, dircretionary.

(x) Civil Procedure Code (V of 1908)

-- O. VII, r. 11 (c) and S. 149-Court Fees Act (VII of 1870), S. 28Court-fees - Deficiency,
making up of - Without first granting time to plaintiff to supply deficient court-fee it is
not lawful to reject a plaint--Order VII, r. 11(c), C. P. C. being a penal provision to be
construed strictly-Such provisions not to be resorted to unless conditions for exercise of
such drastic power were satisfied Mandatory and obligatory for Court to grant time under
O. VII, r. 11(c), C. P. C. whether occasion arises at very institution of plaint or at a later
stage-Time, if to be allowed as obligation under O. VII, r. l 1(c), C. P. C., discretion
element in S. 149, C. P. C. or for that matter S. 28, Court Fees Act, 1870, cannot be
interjected in that.

It is not lawful to reject a plaint under Order VII, rule 11(c), C.P.C. without first granting
time to the plaintiff to supply the deficient court-fee. Order VII, rule 11 is in a way a
penal provision and shall be construed strictly so as not to be resorted to unless the
conditions for exercise of such drastic power are satisfied. In the clause relevant here
namely (c) it is provided that the plaint shall be rejected thereunder only when after the
grant of requisite time the plaintiff has failed to supply the required/specified court-fee.
Thus, it is mandatory and obligatory for the Codrt to grant time under clause (c). The
question of discretion does not arise. And it is so whether the occasion arises at the very
institution of the plaint of at a later stage.

Page No. 6 of 33
If as afore-explained .time is to. be allowed as an obligation under Order VII, rule 11(c),
then the question arises as to how the 'discretion' element in section 149, C. P. C. or for
that matter section 28, Court Fees Act can be interjected in it. It cannot be.

Mst. Walayat Khatun's .case P L D 1979 S C 821 clarified.

Muhammad Nawaz Khan v. Makhdoom Syed Ghulam Mujtaba Shah P L D 1970 S C 37

and Shah Nawaz v. Muhammad Yousaf and 3 others 1972

SCMR179ref. (y) Civil Procedure Code (V of 1908)

-- S. 149 and O. VII, r. 11 (c)-Word "discretion" used in S. 149-Time granted under S.

149 in exercise of discretion, or granted as an obligation under O. VII, r. 11(c) lead to
similar consequence-Time, if granted as a discretionary measure, party concerned will not
get advantage mentioned in second part of S. 149, C. P. C., but if time is granted under O.
VII, r 11(c) party will not lose that advantage-Time when granted under O. Vlt, r. 11(c)
same is granted nevertheless for supply of deficient court-fees, which being main object
of S. 149, C.P.C., therefore, advantages under S. 149 will be available to beneficiary of
exercise of power under O. VII, r. l1(c), C. P. c;.

Muhammad Nawaz Khan v. Makhdoom Syed Ghulam Mujtaba Sh2h P L D 1970 S C 37 ;

Shah Nawaz v. Muhammad Yousaf and 3 others 1972 S C M R 179 and Mst. Walayat
Khatun's case P L D 1979 S C 821 ref. (x) Civil Procedure Code (V of 1908)

(x. 149 and O. VII, r. 11(c)-Court Fees Act (VII of 1870), Ss. 20 to 27 & 28-Discretion of
Court under S. 149, C. P. C. Sections 20 to 27, Court Fees Act, 1870 read with relevant
provisions of C. P. C. requiring deposit of requisite stamps for issuance of process-Court
can exercise discretion under 1. 149, C. P. C. in such like matters for allowing time in that
behalf but considerations of obligation as under O. VII, r. 11(c) would not be attracted-
Same principle, held, applicable to advantage under certain provisions of Court Fees Act,
1870 including S. 28 thereof.

Muhammad Nawaz Khan v. Makhdoom Syed Ghulam Mujtaba Shah P L D 1970 S C 37 ;

Shah Nawaz v. Muhammad Yousaf and 3 others 1972 S C M R 179 and Mst. Walayat
Khatun's case P L D 1979 S C 821 ref.

(aa) Court Fees Act (VII of 1870)

-- Ss. 4, 6, 9, 10, 12 & 28-Civil Procedure Code (V of 1908), O. VII, r. 11 (c) and Ss. 148
& 149-Deficiency in court-fees-Making up of Deficiency in court-fees payable at trial
stage discovered during appeal-Party to be allowed time to supply deficiency even at
appeal stage-Proceedings have to be stayed till payment of proper fee Contumacy at that
stage only, shall ensue consequences like that of non-prosecution as provided under S.
10(ii), Court Fees Act, 1870 subject to further extension of time under S. 148, C. P. C.
and only than plaint can be dismissed on account of such non-compliance with order of
appellate Court-Section 28, Court Fees Act, 1870 or for that matter other relevant
provisions would remain subject to O. VII, r. 11(c), C. P. C. to be applied in mandatory
sense-Court on discovery of deficiency in court-fees, shall as an obligation, direct party
concerned to supply said deficiency within time to be specified and on party's failure to
do so, of course subject to other provisions of law in that behalf, shall have to reject
plaint or appeal as case may be.-[Appeal (civil)-Court-fee).

Mst. Walayat Khatun's case P L D .1979 S C 821 ; Muhammad Nawaz Khan v.

Makhdoom Syed Ghulam Mujtaba Shah P L D 1970 S C 37 and Shah Nawaz v.
Muhammad Yousuf and 3 others 1972 S C M R 179 ref.

(bb) Civil Procedure Code (V of 1908)

-- O. Vll, r. 11, Ss, 148 & 149 read with Court Fees Act (VII of 1870), Ss. 6, 9, 10, 11, 12
& 28-Limitation Act (IX of 1908), Ss. 3 & 5 and Arts. 10 & 120-Punjab Pre-emption Act
(I of 1913), Ss. 4, 21, 27 & 30-Court-tees-Deficiency, making up-Limitation-
interpretation of O. VII, r. 11(b)(c), C. P. C.-Contentions (1) that decision of Supreme

Page No. 7 of 33
Court in case of Mst. Walayat Khatun P L D 1979 S C 821 and subsequent reported
decisions by Supreme Court has led to conflict of authority, thus leading to confusion, for
litigant public and Bar which needed to be resolved, (2) that Supreme Court in a Full
Bench case of Shahna Khan v. Aulia Khan P L D 1984 S C 157 has pointed out that case
of Mst. Walayat Khatun : was authority and law declared only to extent of common ratio
of two separate judgments, rendered therein-Held: (1) Decision in Mst. Walayat Khatun's
case P L D 1979 S C 821 cannot be assumed to have dissented from Supreme Court
judgments in Muhammad Nawaz Khan's case P L D 1970 S C 37 and Shah Nawaz's case
1972 S C M R 179--Law laid down by Supreme Court in cases of Muhammhd Nawaz
Khan P L D 1970 S C 37 and Shah Nawaz's case 1972 S C M R 179 continue to hold
field and is law declared, notwithstanding judgment in case of Mst. Walayat Khatun P L
D 1979 S C 821-No departure was ever made in any case from what was held in two
cases of Muhammad Nawaz and Shah Nawaz to effect that it was obligatory to allow
time for supply of deficiency in court-fee before rejecting plaint and regarding refusal of
discretion under S. 149, C. P. C. only on grounds of contumacious and positive mala fide
conduct ; (2) That this being not unusual for Court consisting of Bench of more than one
Judge to render a decision consisting of more than one judgment, decision reached in
Mst. Walayat Khatun's case P L D 1979 S C 821 was undoubtedly common ratio of two
separate judgments-Strict view in Mst. Walayat Khatun's case expressed in second
judgment was not common ratio of decision and has to be treated as individual opinion of
one Judge.

Hassan Bakh.sh v. Afzal Shah 1974 S C M R 364 ; Jan Muhammad v. Ghulam uhaus
1976 S C M R 141 and Abdul Ghani v. Muhammad Alam 1976 S C M R 147 analysed.

Sohara v. Rashid Ahmad and others P L D 19E Lah. 261 and Muhammad Siddig v.
Muhammad Ibrahim P L D 1981 B J 23 and other cases in that line to be read and
construed accordingly.

Civil Appeal No. 104 of 1978

Ch. Abdur Rahman, Advocate Supreme Court and S. Wajid Hussain, Advocate-on-
Record for Appellant.

Imtiaz Muhammad Khan, Advocate-on-Record for Respondent No. 1.

Respondent No. 2 : Ex pane.

Civil Appeal No. 136 of 1979

Bashir A. Ansari, Senior Advocate Supreme Court and Ch. Akhtar All, Advocate-on-
Record for Appellants.

X. E. Bhatti, Advocate-on-Record for Respondents.

JUDGMENT

MUHAMMAD AFZAL ZULLAH, J.-These two appeals (Civil Appeal No. 104 of 1978
and Civil Appeal No. 136 of 1979) through special leave of this Court are directed against
,judgments of the Lahore High Court, dated 18-9-1978 and 25-10-1978 respectively;
whereby two Regular Second Appeals arising out of different pre-emption suits were
decided : one, in favour and the other against the pre-emptors. The questions relating to
payment of deficient court-fee and its effect on bar of limitation are common to both of
them. They were heard and allowed with our short orders of remand dated 22-11-1983.

1n Civil Appeal No. 104 of 1978 the facts briefly stated are that Abdul Shakur respondent
No. I filed a pre-emption suit with a court-fee of Rs. 22.50 calculated at 15 times the net
profit of Rs. 20 for the previous year with a statement that he would make up the
deficiency after the preparation of the Fard Paidawar (statement of net annual produce)
on actual net profit, when ascertained. Subsequently he discovered that the land was
permanently assessed. Accordingly instead of the net profit being the basis he paid court
fee on 10 times the land revenue, the same being Rs. 33.75. He, however, made up the

Page No. 8 of 33
deficiency calculating the fee as lump sum of Rs. 34. The appellants (vendees-
defendants) amongst others, raised the objections regarding court-fee. The learned trial
Judge decreed the respondent's suit and overruled the said objection with the observation
that the valuation of the suit had been determined on the basis of .net profits. Accordingly
the objection was without force. The appellants then filed First Appeal and affixed the
court-fee of Rs. 34 on the memorandum of appeal following exactly what the plaintiff
had done. The latter, however, this time raised objection that it was not correct court-fee.
After some contest the appellant-vendees applied under section 149 read with 151, C. P.
C. for permission to supply the deficient court-fee on obtaining the Fard Pardawar. It was
also asserted by them that the fixation of court-fee by them earlier at Rs. 34 was based on
the statement in this behalf in the decree sheet as also on the assertion made by the
respondent-plaintiff in the plaint regarding the net profits. The two applications from both
the sides were decided together. Respondent-preemptors' objection application was.
allowed and the appellant-vendee was not permitted to make up the deficiency; as,
according to the First Appellate Court the request in this behalf was made after the expiry
of the period of limitation. Accordingly the appeal was treated as time-barred and
dismissed.

On Regular Second Appeal a learned Single Judge of the Lahore High Court held that the
Punjab Finance Act of 1973 whereby the court-fee was to be assessed on the net profit
basis and not on the land revenue basis even if it was permanently assessed, being in
force at the time of the filing of the First Appeal (though the plaintiff's court-fee on plaint
being Rs. 34 was correct) the appellant's court-fee on First Appeal on the basis as that of
the plaint, was deficient. Therefore, the appeal when filed with such deficient court-fee
would not be deemed to have been filed within time. It was also held that the provision
contained in Order VII, rule 11 (c), C. P. C. was not applicable to appeals under Order
XLI. Accordingly the Appellate Court was not obliged to grant extension of time under
that provision for making up the deficiency in court-fee. Lastly it was held that there was
no sufficient ground for exercising discretion in favour of the appellants under section
149, C. P. C.

Leave to appeal was granted in this case to examine the contentions:

Firstly, whether the appellant could avoid paying court-fee calculated on the basis of the
amendment in law (through Punjab Finance Act of 1973) for paying court-fee on an
appeal, filed after the amendment, on the ground that the right of appeal being vested one,
the court fee leviable at the time of the institution of the suit (which admittedly was prior
to the amendment of 1973) was the correct court-fee for appeal which would be deemed
to be in continuation of the suit. The contrary view in this behalf held in `Syed Manzoor
Hussain Ghazi v. Syed Ejaz Hussain Shah, Settlement Commissioner, Lahore Division,
Lahore and 6 others P L D 1972 Lab. 743 was according to the appellant's contention, not
correct;

secondly, that Order XLI, rule 3 could be read with Order VII, rule 11(c) and sections 107
and 151, C. P. C. Accordingly the Appellate Court could also, like the trial Court, require
the supply of deficiency in courtfee under Order VII, rule ll(c), C. P. C. with
consequences accordingly. The difference of opinion amongst superior Courts on this
legal question, it was further noted in the leave granting order, indeed required to be
resolved ; and

thirdly, that First Appeal could not have been rejected as tune-barred on account of the
so-called deficiency in court-fee---it could be dismissed only if, as it was held in Shah
Nawaz and 6 others v. Mahammad Yousuf and 3 others 1972 S C M R 179 a party was
found guilty of `contumacy' or `positive male fide' in paying deficient court-fee.

Thus, leave was granted to resolve the afore-noted legal controversies.

In Civil Appeal No. 136 of )979 the points involved were both of facts and law relating
to, as noted earlier, court-fee and its effect on question of limitation. As leave was granted
only to examine the latter (legal questions), therefore, it is not necessary to give details of
the other facts and controversies involved therein the reason being that if the appellants
succeed on the law point the case would merit remand to the appropriate forum.

Page No. 9 of 33
Thus, the facts relevant for decision of this appeal briefly stated are that the appellant
filed a pre-emption suit. The respondent, amongst .others, raised plea of deficient court-
fee as also of limitation. It was dismissed on various grounds. But on question of court-
fee the respondent-vendees objection was overruled and the issue framed in this behalf
was decided in favour of the appellant. He filed the First Appeal paying the same court-
fee as he had affixed on the plaint. It was accepted notwithstanding the objection by the
vendee-defendant regarding court-fee paid in appeal. The vendeerespondents then filed a
Regular Second Appeal in the High Court challenging the first appellate decision on other
issues decided against them as also on the question of court-fee. - The High Court apart
from the other contested issues decided the controversy relating to court-fee also against
the appellants with the finding as in Civil Appeal No. 104 of 1978 that the Punjab
Finance Act of 1973 was operative at the time of the filing of the appeal by the plaintiffs
(appellants herein). They were required to pay the court-fee on the basis of the relevant
net profits and not in accordance with what was paid at the time of the filing of the suit
on the basis of the permanently assessed land revenue. The plea that the appellants were
(themselves) not aware of any change in the law regarding court-fee during the pendency
of the suit was not given any importance in considering the question of contumacy and
positive male fides, as also his plea that the Court should have allowed at least one
opportunity in these circumstances "automatically" in accordance with the law then
prevailing (as laid down in Muhammad Nawaz Khan and another v. Makhdoom Syed
Ghulam-Mujtaba Shahana and another (1). The plea of the appellants that there was no
statement of relevant net profits produced by the respondents to show that the court-fee
paid at the appellate stage by the appellants on the basis of the land revenue was in reality
less than the court-fee which would have been payable on the basis of the net profits, was
not accepted; because the statement of the respondents in his affidavit on the question of
net profits was treated as better than the estimate prepared by a Patwari (the Fard
Paidawar). Accordingly on account of deficient court-fee the appellant's First Appeal was
not treated as a proper appeal at the time when it was filed. And the making good of the
deficiency in this behalf at the time when the respondent's second appeal was being heard
by the High Court would not save the limitation as the First Appeal on account of
deficient court-fee, already stood time-barred.

Leave to appeal was granted in this second case with reference to the leave granted in
another case namely Sakhi Muhammad and others v. The Registrar, Lahore High Court
(Civil Appeal No. 153 of 1978). It is pertinent to note here that the leave granting order
dated 18th July 1979 in this case was written by our brother late Karam Elahi Chauhan, J.
whose judgment rendered on 1st of June 1978 in the case of Mst. Walayat Khatun (2) has
come up for interpretation during the hearing of these appeals. The leave was granted to
consider the same questions of law as were noted in the case of Siddique Khan and others
(Civil Appeal No. 104 of 1978).

Learned counsel for the appellants have tried to assail the view taken in the case of Syed
Manzoor Hussain Ghazi (3) wherein it was held that the right of appeal is one thing and
the payment of court-fee is another and to say that a right of appeal vests at the initial
institution of a suit does not mean that the court-fee for appeals to be filed in future,
cannot undergo a change. Therefore, right of appeal is confined to getting the decision of
the Court below reviewed by the appellate Court and it bad no reference to the point as to
what should have been paid as court-fee on the appeal. Reliance, amongst others, was
placed on a decision of this Court in Ahmad Khan v. The Chief Justice and the Judges of
the High Court, West Pakistan throuhgh the Registrar. High Court of West Pakistan,
Lahore and 2 others (4) as also on the following cases: Sham Lal L. Dogarmal v. Om
Prakash L. Sant Ram

Aggarwal and others (5) Sukh Lal and others v. Devi Lai and others (6) Chanda
Engineers (India) Ltd., Calcutta and others v. Suresh Chand and others (7), Shamsul
Hwsan v. State of Uttar Pradesh (8). In re: Ghosh Bee vi (9), Mst. Bhug butty Kooer and
others v. Mst. Kushtooree Kooer (10). Aradhun Dey and another v. Ghulam Hossein
Maloom and others (11), Mr. G. L. Fagan and others v. Chundar Kant Banerjee and others
(12) and In re: Sreenath Roy Cho wdnry (13).

Some other cases, namely:

Page No. 10 of 33
Parmeshar Kurmi and another v. Bakhtawar and others (14), Nandi Ram alias Nandi Lal
Agrani v. Jogendra Chandra Dutta and others (15) and

(1)PLD1970SC374 (2)PLD1979SC821
(3) P L D 1972 Lah. 743 (4) P L D 1968 S C 171
(5) A I R 1955 Pb. 223 (6) A I R 1954 Rai. 170
(7) A I R 1954 Vidh. Pra. 47 (8) A I R 1956 All. 413
(9) A I R 1944 Mad. 406 (10) 15 W R 272
(11) 7 W R 461 (12) 7 W R 452
(13) 7 W R 462 (14) A I R 1933 All. 20
(15) A 1. R 1924 Cal. 881

Chunnilal and others v. Kishandas Ramdas (1) were however distinguished. But the
contrary view that the court-fee payable on appeal should be the same which is prevalent
at the time of the institution of the suit out of which the appeal arose and not the one
payable at the time of the institution of the appeal itself, in some of the other cases, was
not followed.. They are:

Firm Haji Sheikh Faizullah v. State of Vindhya Pradesh and others A I R 1954 Vidh Pra.
5; R. M. Seshadri v. The Province of Madras A I R 1954 Mad. 543; Bisan Parashram v.
Ganpat Sakharam and others A I R 1955 Nag. 46; Arjuna Govinda v. Amritta Keshiba and
others A I R 1956 Nag. 281; Sawaldas Madhavadas v. Arati Cotton Mills Ltd. A I R 1955
Born. 332 ; In re : Reference No. 16 of 1954 A I R 1955 Bom. 287 ; In re : Abdul
Ghafoor A I R 1958 Andh. Pra. 267 ; Amara E.swaramma and others v. Makkam
Seethamrna A I R 1955 Andh. Pra. 221.

The view expressed in the first mentioned category of cases was followed by the Lahore
High Court in the cited case of Manzoor Hussain Ghazi. It is that the court-fee on a
document including suit or appeal has to be paid according to the law when the document
is presented in Court and not the law which was in force at the time of the accrual of the
relevant cause of action or right; or, for that matter when the suit was filed, if the relevant
document in the memorandum of appeal arising out of the same suit.

It is not necessary to re-examine the entire case-law, diligently reviewed by the learned
Judge in the High Court (late Mr. Justice Karam Elabee Chauhan as he then was), as it is
fully in accord with the view of this Court held in the case of Ahmad Khan to the effect
that the imposition of fee is a necessary part of regulatory process. Thus, as observed by
the learned Judge the change of law involved in this case is of only regulatory and
procedural type and as held by this Court in several other cases no one has a vested right
in any particular procedure. That being so, the court-fee leviable E on the relevant First
Appeals involved in these two cases would have to be l calculated in accordance with the
law contained in the Punjab Finance Act, 1973 and not the law which prevailed at the
time of the filing of the suit at a time earlier to the said amendment. The court-fee thus
paid at the time ofI the filing of the First Appeals no doubt, was deficient. The first
argument raised on behalf of the appellants in this behalf, is repelled.

The next question arises in regard to a serious conflict of opinion amongst the superior
Courts in Pakistan and in India, as to whether the provisions of Order VII, rule 11(b) and
(c) as distinguished from section 149, C. P. C are attracted to the appeals as they are
applicable to the suits. The learned Judge deciding the second appeal in the case out of
which Civil Appeal No. 104 of 1978 arises, has adopted the view expressed in a Division
Bench judgment of the Lahore High Court in the case of ealwant Singh v. Jagjit Singh
(2). He declined to accept the opinion expressed in Jai Singh Gir v. Sitaram Singh (3) and
Achut Ramchandra Pal and others v. Nagappa Bab Balgaya and others (4).

In the case of "Balwant Singh" an unseccessful pre-emptor filed a Regular First Appeal in
the High Court with a deficient court-fee and made an application for extension of time to
supply the deficiency. It was allowed

(1) A I R 1926 Nag. 71 (2) A I R 1947 Lah. 210 (3) A I R 1923 All. 349 (4) A I R 1914
Born. 249

Page No. 11 of 33
but subject to all just exceptions. At the fiual hearing four legal controversies were
examined in one or the other context. They, amongst others, are also relevant for the
present discussion and as. noted and answered are as follows :

(1) Whether the provisions of Order VII, rule 11 (b), (c) would mutatis murandis apply to
the appeals ;

(2) Whether in case Order VII, rule 11 (b)(c) applied it was not obligatory for the Court
concerned to grant time for supply of the deficiency in court-fee ;

(3) Whether for non-payment of court-fee within period of limitation an appeal would be
deemed to have become time-barred at the time the question of proper court-fee is
considered-after the expiry of the period of limitation, but without condonation of delay
by the Court ; and

(4) Whether even if it is obligatory under Order VII, rule 11, (b) (c) to grant time for
supply of deficiency in court-fee, it was contrarily discretionary under section 149, C. P.
C. to grant time, for the same purpose.

Both the learned Judges of the Division Bench wrote separate judgments. A comparative
study thereof leads to the following conclusions discoverable from the common ratio
thereof.

'fhe first question was answered in the negative and it was held that rule 11 (b), (c~ of
Order VII of C. P. C. was inapplicable to the memoranda of appeals. Reliance was placed
on Ghulam Muh«mmad v. Barkat Ali and others (1) and Pamidimukkala Sitharamayya
and others v. Ivaturi Ramayya and another (2). The contrary view held in the cases of
Hussain All Khan v. Ambika Prasad (3); Basavayya v. Venkatappayya (4); Rarnagati
Singh v. Sitab Singh (5); Venkanna v. Atehutaramanna (6) and Har Lal v. Sri Ram (7) and
many others, was not followed. Khosla J. in his separate opinion mentioned also some
more cases :

Satto v. Amar Singh 1 Lah. 220; Lekharam v. Ramji Das 1 Lah. 234; Gursaran Das v.
District Board, Jullundur 102 I C 615 and Raghbir Saran v. Mt. Sohan Debi 6 Lah. 233,

in support of the same view that Order VII, rule 11 (b) (c) was not applicable to appeals.
Though in these cases the question was not discussed ,pit was. impliedly assumed that the
appeals were not governed by Order VII, rule I1 (b) (c). Section 107, C. P. C. was held
not applicable because in its terms Order VII, rule I I (b) (c), C: P. C. was not included
therein as applicable to the appeals. Moreover, it was observed that Order VII rule I I (b)
(c) governs the filing, admission and rejection of plaint while Order XL1 contained
different provisions for the same purpose in case of appeals. Several other rulings
from.the High Courts of Bombay, Calcutta, Patna and Chief Court of Allahabad
expressing the view that Order VII, rule I I (b) .c) applied to the

(I) A I R 1936 Lah. 9.35 (2) A I R 1938 Mad. 316

(3) 13 Luck. 397 (4) A 1 R 1926 Mad. 676

(5) A I R 1.939 Pat. 432 (6) A I R 1938 Mad. 542

(7) 14 Lah. 312

memoranda of appeals by virtue of section 107, C. P. C. were not followed, as according

to the learned Judges the High Courts of Allababad, Lahore and Madras and Judicial
Commissioner's Court at Nagpur and Peshawar were of the view which found favour
with them. 1t needs to be mentioned however, that in the judgments from Allahabad,
Lahore, Madras, Nagpur and Peshawar it was held that although, Order VII, rule I 1 (b)
(c) did not apply to the memoranda of appeals, section 149, C. P. C. could be made
applicable thereto for purpose of extending time for supplying the deficiency in court fee.
- One additional reason given in the leading judgment of the Division Bench rendered by
the then Actg. C. J. was as follows :

Page No. 12 of 33
"1n my opinion, the provisions of Order VII, rule 11(b)(c), C. P. C., do no apply to
memoranda of appeals. If an insufficiently stamped memorandum of appeal is presented
in an appellate Court, it cannot be held that a proper appeal has been filed at all. The
memorandum of appeal is a piece of paper which may develop into a proper
memorandum of appeal is the Court extends time for the payment of the deficient court
fee under section 149, C. P. C. Once the Court has exercised its power under section 149
of the Code, the memorandum of appeal would be validated retrospectively from the date
on which it was filed in an appellate Court as it is laid down by section 149 that upon
such payment being made the document, in respect of which such fee if payable, shall
have the same force and effect as if such fee had been paid in the first instance. If, on the
other hand, the Curt refuses to extend time under the provisions of section 149, the
document presented in the appellate Court will never become a proper memorandum of
appeal. Reference may be made in this connection to section 6, Court Fees Act, which
lays down that no document specified as chargeable in Schedule 1 or 2 of the Act shall be
filed, exhibited or recorded in any Court of Justice, or bail be received or furnished by
any public officer, unless in respect of such document there be paid a fee of an amount
not less than that indicated by either of the said schedules as the proper fee for such
documents."

The above reasoning for excluding the application of Order VII; rule 11 (b) (c) insofar as
the memorandum of appeal is' concerned, with respect, seems to be based mainly on the
view taken of section 6 of the Court Fees Act where under it was assumed that even if a
specified document was duly presented in time but with deficient court-fee, it will be
deemed to have been presented after the period of limitation if the deficiency in court-fee
was supplied after the expiry of the limitation period without the extension of time under
section 149, C. P. C. or condonation of delay under section 5 of the Limitation Act. And
accordingly it would be time-barred. That being so it was thought that an insufficiently
stamped memorandum of an appeal would not be deemed to have been filed at all.
Further, reasons found in the decision by a Division Bench of the Madras High Court in
the case of Pamidfrnukkala Sitharamayya and others were adopted in support of the
afore-noted view. They are that in the case of a plaint, there is no power in the Court to
excuse delay on grounds which are available under section 5,rf the Limitation Act while
it applies to the delay in filing the appeal; and, that if there are any other cases • of
hardships regarding appeals the provisions of section 149 of the Code would supply the
remedy. There was, therefore, no necessity whatever to apply the provisions of Order VII,
rule I1 (b) (c) to memoranda of appeals. The learned Acting Chief Justice further
expressed` the view
"that in cases of this type the appeal is not rejected because of the insufficiency of court-
fee; the appeal is dismissed on the question of limitation".

On the second question there was divergence of approach between the two learned
Judges. In that case the learned Acting Chief Justice was "inclined to the view that even
in the case of plaint it is not the bounden duty of the Court to fix time for making up a
deficiency before rejecting the plaint". . However, as in the earlier Full Bench case of
Jagat Ram v. Misar Khairaiti Ram (1), the point was left open; notwithstanding there
being observation in the order of reference to the effect that it was only discretionary to
grant time under Order VII, rule 11 (b) (c). The learned, Acting Chief Justice finally
observed in this behalf that "it is unnecessary for me to give a considered opinion
whether under the provisions of Order VII, rule 11
(b) (c), it is the bounden duty of the trial Court in the case of plaints to fix a time for the
making up of the deficiency in the court-fee . . . . ". The other learned Judge (Khosla, J.)
expressed a more considered opinion. This is as follows :-- -

"The first point to consider is whether under the provisions of Order VI1, rule 11 in so far
as it applies to plaints, a Court is bound to extent time. Certain observations made by Din
Muhammad J. in Jagat Ram v. Misar Kharaili Ram, A I R 1938 Lab. 361 were brought to
our notice, and it was contended by Mr. Rup Chand that the Court is not bound to extend
time even in the case of plaints. There is overwhelming authority to the contrary, and I
am not, as at present advised,.

Page No. 13 of 33
' prepared to differ from the view expressed by a large number of Judges of almost all the
High Courts of India. There are two decision's of the Punjab Chief Court which lay down
that a Court is bound to extend time in the case of plaints : Jiwan Das v. Khushabi Ram
39 I C 766 and Jhanda Khan v. Bahadur Ali, 3 I R 1893. With great respect to Din
Muhammad J., I do not think that the reasons upon which the decision in Jhanda Khan 3
P R 1893 proceeds were unsound, but a more careful consideration of this point would
not be necessary, as I agree with my learned brother that Order VII, rule I1 (b) (c), C. P.
C. does not apply to memoranda of appeals."

The third question was answered in the affirmative ; in that, as already noted, placing
reliance on section 6 of the Court Fees Act, it was held that the submission of a
memorandum of appeal which is insufficiently stamped is no presentation at all in the eye
of law; because this provision lays down that no document which is subject to levy of
court-fee can be properly entertained if no proper court-fee is paid on it. Hence in all such
cases even though the document is presented within the period of limitation, on account
of lack of proper court-fee it shall be deemed to have not been presented at all.

On the last question no reasons were advanced as to why the case was not fit for grant of
time under section 149, C. P. C. even if time could not be granted as a matter of course
for non-applicability of Order VII, rule 1 l (b) (c). Perhaps it was assumed -in the
observation "there is no justification for extending time now under section 149, C. P. C.
or under section 5 Limitation Act" that the time had passed for any relief under the said
two provisions; which it must be straight away remarked, was not a justifiable ground for
refusing the relevant relief.

(1) A I R 1938 Lab. 361

. The provisions of Order VII, rule 11, C. P. C. read as follows

"The plaint shall be rejected in the following cases :

(a) where it does not disclose a cause of action ;

(b) 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 ;

(c) where the relief claimed is properly valued, but the plaint is written upon paper in
sufficiently stamped and the plaintiff, on being required by the Court to supply the
requisite stamp-paper within a time to be fixed by the Court, fails to do so ;

(d) where the suit appears from the statement in the plaint to be barred by any law.

Order XLI, C. P. C. prescribed the procedure as shown in the heading of the order, for
appeals from original decrees. Under this main heading one finds a sub-note i. e. "(see
sections 96 to 99, 107 and 108)". Order XLII carries the heading appeals from appellate
decrees. This order contains only one rule prescribing that "the rules of Order XLI shall
apply, so far as may be to appeals from appellate decrees". Thus, the procedure for
second appeals would, by and large, have to be discovered from what is prescribed under
Order XLI read with other provisions of C. P. C. particularly those o sections 96 to 99,
107 and 108, C. P. C.

Order XLI; rule 3 provides that "where the memorandum of appeal is not drawn up in the
manner herein before prescribed, it may be rejected or be returned to the appellant" for a
specified purpose. The question whether the rejection under rule 3 would also include a
rejection for the reason mentioned in Order VII, rule 11, clause (b) (c) has been the
subject-matter of controversy in the sub-continent for nearly three quarters of the
Century. There are innumerable decisions that Order VII, Rule 11 Clauses (b) (c) would
apply to the appeals also; but, there are many judgments to the contrary, including the
Lahore Division Bench case of Balwant Singh already noticed. There are some Full
Bench cases also which would be noticed presently. It, however, has to be observed that
notwithstanding there being some cases from the Lahore High Court in support of the

Page No. 14 of 33
first mentioned view, in majority of the cases including a Full Bench decision from
Peshawar, the latter view has been adopted.

The controversy cannot be appreciated without examination of the provision contained in

section 107 , C. P. C. which operates, amongst others as the main link between the
provisions of Order VII, rule 11 clauses (b) (c)I and Order XLI, rule 3. Section 107, C. P.
C. reads as follows :

"107. Powers of appellate Court.-(1) Subject to such conditions and limitations as may be
prescribed, an Appellate Court shall have power

(a) to determine a case finally;

(6) to remand a case;

(c) to frame issues and refer them for trial;

(d) to take additional evidence or to require such evidence to be taken. (2) Subject as
aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as
may be the same duties as are conferred
and imposed by this Code on Courts of original jurisdiction in respect of suits instituted
therein."

Before making any comment on this section it is necessary to note that section 108 makes
provisions similar to that mode in Order XLII which relates to appeals from appellate
decrees. It (section 108) prescribes that the provisions of the part in which section 108 as
also 107 fall (that is part 7 of C. P. C. which relate to appeals from original decrees) shall
so far as may be, would also apply to appeals from appellate decrees and from orders.

The two subsections of section 107 relate to separate aspects of the exercise of appellate
jurisdiction. Subsection (1) relates to specified actions of somewhat final character
relating to the decision in the appeal while subsection (2) relates to powers and duties in a
general sense which will also include purely procedural matters. It i; necessary to co-
relate and read this provision with Older XLI, rule 3 because the later also provides the
procedure regarding initial stage of the proceedings in the appeal. The restricted view is
that Order XLI, rule 3 is exhaustive of the powers regarding rejection of an appeal on a
procedural question and that the provisions contained in subsection (2) of section 1t)7
would not cover this procedural aspect of th

appeal. It was held in a Full Bench case of S. Wajid All v. Mst. Isar Bano Urf Isar Fatima
(A I R 1951 All. 64) that by virtue of section 107 the appellate Court will have the same
power in respect of plaints as a Court of original jurisdiction would .have in that regard,
but it would not have same or similar powers with regard to an appeal. Some earlier
Allahabad cases were relied upon with the observation that one of them decided by a Full
Bench "in regard to this matter has not been questioned in this Court or in any other
Court in India". This observation will have to be seen with reference to the other relevant
cases ; because, in Mahabir Ran and another v. Kapideo Pathak and others (AIR 1957
Pat. 111) a contrary view was taken as follows :

"By virtue of clause (2) of section 107 of the Code of Civil Procedure, Order VII, rule ll,
applies to appeal also. Order VII, rule i 1 (c) provides that where the relief claimed is
properly valued, but the plaint is written upon paper insufficiently stamped and the
plaintiff, on being required by the Court to supply the requisite stamp paper within a time
to be fixed by the Court, fails to do so, the plaint shall be rejected . ............ Order VII,
rule 11, therefore, makes it compulsory for the Court before rejecting the plaint to give
some time to the plaintiff to make up the deficiency, however short that may be, and the
Court cannot straightaway reject the plaint without giving such time. The provisions of
Order VII, rule 11, are applicable to appeals also, as I have already stated, and that being
so, where the memorandum of appeal is insufficiently stamped, the Court must afford the
appellant an opportunity of making good the deficiency of the court fee payable on the
memorandum of appeal. It is, therefore, clear that a memorandum of appeal not
sufficiently stamped cannot be rejected summarily on that ground, unless an opportunity

Page No. 15 of 33
is given to the appellant to explain, or to make good the deficiency within the stated time
(see-Baijnath Prasad Singh v. Umeshwar Singh A I R 1937 Pat. 550 : I L R 16 Pat. 600 (S
B) (A) ; Bahuria Ramsawari Kuer v. Dulhin Motiraj Kuer A I R 1939 Pat. 83 , I L R 17
Pat. 687 (B), Siring Prasad Sahu v. Surendrapat Tewari A I R 1939 Pat. 137 (C) and
Ramgati Singh v. Shitab Singh A I R 1939 Pat. 432 (D)) (Underlining' is ours).

In another post-Partition case from India Phaltan Bank Ltd. v. Baburao Appajirao and
another (A I R 1954 Bom. 43) ; also, it was held that "under Order XLI, rule 3, an
appellate Court is expressly empowered to reject a memorandum of appeal if it is
satisfied that the memorandum is not drawn up in the manner as prescribed ; but this does
not mean that the appellate Court's power to reject the memorandum of appeal is confined
only to the cases falling within rule 3 of Order XLI. It is well-settled that reading the
provisions of section 107, subsection (2), and Order VII, rule 11, together, the Court of
appeal would be entitled to reject the memorandum of appeal on any of the grounds
mentioned in Order VII, rule 11. Amongst the grounds on which a memorandum of
appeal can thus be rejected under Order VII, rule 11, failure of the appellant to pay the
requisite court-fee, is included. Order VII, rule 11, authorises the trial Court to reject a
plaint for the grounds mentioned in four subsections under the said rule and by reason of
the provisions contained in section 107, subsection (2), these powers can be exercised by
the Court of appeal in respect of the appeals filed before it".

On the same subject, diametrically opposed views were expressed in favour of each of
the two propositions stated earlier, in two more recent judgments from India. One, Shri
Hem Chandra Sarkar v. Sint. Jyoti Bala Chakraborty (A I R 1970 Tripura 26) and other
Tipper Chand Dhanpat v. :qatu Ram and others ((3) A I R 1970 Pb. & Haryana 273). In
the former case it was held that "subsection (2) of section 107 gives the appellate Court
the same powers and assigns to it the same duties as are conferred and imposed on the
Court of original jurisdiction in respect of suits instituted therein". In that case the
memorandum of appeal was insufficiently stamped and it was observed in that behalf that
"in terms of clauses (b) and (c) of O. VII, rule 11 read with section 107 of the Code this
Court was bound to give time" to the appellant for correcting the valuation and making
up the deficiency in court-fee. The conflict of law in India on this point was in this case
summarised as follows :-

"I must state here that there is a sharp conflict of opinion amongst the various High
Courts in India on the point whether the provisions of clause (c) of rule 11 apply to
appeals. I am inclined to follow the view that they do apply to the appeals because the
phraseology of sub-section (2) of section 107 leaves no room for doubt on the point.
Therefore, the appellate Court is bound to grant time to the appellant for making up the
deficiency in the court fee if the memorandum of appeal is insufficiently stamped. That
Court cannot in the latter circumstance adjudge the fate of appeal merely on the basis of
the provisions of section 149 in exercise of its discretion without complying with the
command given by clauses (b) and (c) of rule ll of Order VII and giving time to the
appellant to do the needful. If the appellant fails to make up the deficiency in the court
fee within the time allowed to him by the appellate Court, then alone the latter may reject
the memorandum of appeal as insufficiently stamped and not otherwise."

The contrary view expressed in the 1970 Punjab case is in no uncertain terms though the
case of Balwant Singh already noticed was mainly relied upon. The conflict amongst the
High Courts of India was also highlighted in this case as follows

"There is indeed a conflict of opinion on the question as to whether the provisions of

Order VII, rule 11 in terms apply to appeals or not. A Division Bench of the Lahore High
Court in Balwant Singh v. Jagjit Singh A I R 1947 Lah. 210 has, however, held that they
are not applicable to appeals and it is a matter of discretion with the Court under section
149 of the Code, whether time for payment of the deficit court-fee should be extended or
not. Th:4-ame is the view held by a Full Bench of the Allahabad High Court in a case
reported as S. Wajid Ali v. Mst. Isar Bano Urf Isar Fatima A I R 1951 All. 64 (FB). It may
be that by virtue of section 107, an appellate Court has the same powers as an original
Court in respect of plaints but that does not imply that Order VII, rule 11 becomes
applicable in terms to appeals. I must follow the Division Bench judgment of the Lahore
High Court which, I may say with all respect, lays down the correct law. The only

Page No. 16 of 33
provision of law under which an appellate Court can extend time in section 149 of the
Code which vests a discretion in the Court in this regard. It is, of course, true that the
discretion has to be judicial and not arbitrary. Where a Court is satisfied that the mistake
in not paying a proper court-fee was a bona fide one, it is bound to allow the deficiency
to be made good within a time prescribed by it."

The resume on this serious conflict amongst the Indian High Courts on the subject under
discussion would not be complete without reproducing Chitaley's Commentary on C. P.
C. (1977th Edition). The learned authors in their subheading No. 6 in the Commentary on
Order VII, rule 11, summarised the question and the conflicting answers as follows

"This rule applies in terms to plaints insufficiently stamped. Where a memorandum of

appeal is found to be presented with an insufficient court-fee, the Court can allow time
for paying the deficit court-fee. But, is the Court bound to grant time to the appellant to
make up the deficiency? There is a conflict of opinion on this point. According to . the
High Courts of Travancore. Cochin, Bombay, Calcutta, Gujrat, Patna, Rajasthan, the
Chief court of Oudh and the Court of the Judicial Commissioner of Tripura this rule
applies to memorandum of appeals also by virtue of section 107. A contrary view has
been taken by the High Courts of Allahabad, Jammu & Kashmir, Lahore, Punjab and
Madras and the Judicial Commissioner's Court of Nagpur, Ajmer and Peshawar. This
view proceeds on the ground that the insertion of section 582 in the old Code
corresponding to section 149 providing for memorandum of appeals, shows that the rule
does not apply memorandum of appeals."

The authors then mentioned dozens of cases decided by these Courts including several of
pre-Partition period.

At this stage it needs to be mentioned that the conflict of authority is in no way less acute
to Pakistan and it was for that reasons that this Court in another case also namely, Land
Acquisition Collector, Rawalpindi and another v. Sahib Dad Khan (N L R 1981 S C 1 290
) granted leave to appeal to consider the argument that when a memorandum of appeal
does not bear proper court-fee stamps, the appellant should be first called upon to make
the deficiency in court-fee as would appear from the provisions of Order VII, rule ll (c)
which though, in terms are not applicable to appeals but the same have been extended on
the basis of section 107, C. P. C.

In some of the recent Lahore cases the view expressed in 1947 case of Balwant Singh has
been followed without discussion. For example in Mubarak v. Phullan and 7 others (1) it
was assumed that "there can be no two opinions on the proposition that the provisions of
Order VII, rule 11, C. P. C. do not apply to the memorandum of appeal." In this case nor
in the case of Ramzan and others v. Allah Diwaya and another (2) relied upon therein, is
any discussion as to why section 107 (2), C. P. C. would not make Order VII, rule 11 (b)
(c) applicable to memo. of appeal.

In another judgment Bhudan Shah and others v. Mst. Shantshad Begum and others (3) a
learned Judge of the Lahore High Court again assuming as if there was no controversy,
observed as follows

"The proposition of law that the provisions in Order VII, rule 11, Civil Procedure Code
under which a plaint could not be rejected for insufficiency of court-fee unless the
plaintiff was given opportunity to make good deficiency within a period to be fixed did
not apply to appeals, does not admit of any controversy."

The contrary view expressed in Mahmood Ahmad and others v. Mr. S. M. Ishfag Ali,
Claims Commissioner etc. (4) was not adopted because of the decision in the cases of
Balwant Singh (1947) already noted and Qadlr Bakhvh v. Allah Bakhsh and others (5). In
Mahmood Ahmad's case it was held as follows :

"Similarly, under Order XLI, rule 3, C. P. C. memorandum of appeal can be rejected on

the ground that the same is not properly stamped after the party concerned has failed to
make up the deficiency in the payment of court-fee within the time granted by the Court,
The law requires that an opportunity must be given to the party concerned to pay the

Page No. 17 of 33
deficient court-fee and an appeal or plaint cannot be rejected under this rule for
insufficiency of stamp unless the party is given an opportunity to supply the deficient
stamp within a time fixed by the Court and it fails to do so."

In the case of Qadir Bakhsh again there is no discussion on the question as to why by
virtue of section 107 (2), C. P. C. the provisions contained in Order VII, rule 11 (b) (c), C.
P. C. would not be attracted to memorandum of appeal excep t that after noting the
divergence of opinion thereon in the three cases of Pt. Amba Shankar v. Mst. Seoti (6)
Abdul Majid Mridha v. Amina Khatun (7) and Jai Singh Gir v. Sitta Ram Singh and
others (8) and some other cases, but relying on the case of Balwant Singh it was held that
the provisions of Order VII, rule I1 (c) were not applicable to memorandum of appeal.

It is now necessary to notice the contrary view taken in Pakistan in some more cases, of
course in addition to one already noticed namely, that of Mahmood Ahmad (1974).

In Sain v. Shah Asghar Shah it was held that under section 107 (2), C. P. C. the appellate
Court has the same powers as that of the trial Court. Therefore, it would make the
provision regarding the rejection of plaint

(1) 1980 C L C 485 (2) P L D 1953 B J 45 (3) 1980 C L C 1788

(4) P L D 1974 Note 32 at p. 69 (5) P L D 1967 Pesh. 1 (6) A I R 1937 All. 280
(7) A I R 1942 Cal. 539 (8) A I R 1923 All. 349 (9) P L D 1952 Pesh.44.
applicable to memorandum of appeal. It was, however, observed that before rejecting an
appeal by virtue of Order VII; rule l l (c) the Court should normally refuse to entertain a
memo. of appeal which is deficient in court-fee. With regard to the extension of time in
that particular case under Order VII, rule 11 (c) it was noticed that the appellate Court
had "twice given time to make up the court-fee, which he failed to do, and under the
circumstances the Court had no other alternative but to reject the memorandum of
appeal". Accordingly the-approach of the learned lower appellate Court was not
considered illegal or even improper.

In Amir Ali v. Gul Muhammad (1) again it was held that an appellate Court in exercise of
those powers which it enjoyed by virtue of section 107 (2) C. P. C. could call upon the
appellant to make up a deficiency in court-fee before dismissing the appeal. It was further
observed that "The learned District Judge fell in error in dismissing the appeal. The
proper procedure for him should have been to have called upon the appellant to make
good the deficiency in the court-fee before the hearing of the appeal. He had under
section 107 of the Civil Procedure Code all the powers of the trial Court and

had further powers under sub-paragraph (ii) of section 12 re&d with subparagraph (11) of
section 10 of the Court Fees Act to dismiss the suit on the ground of insufficient court-
fees". In this case the High Court accepted the

appeal and directed the District Court to hear the first appeal on merits and dispose it of
according to law.

Same view was expressed regarding interpretation of Order VII, rule 11 (c) if it is sought
to be applied in connection with the provisions of Order VIT, rule 13, C. P. C. to Abdul
Hakim and others v. Asabuadin (2). Reliance was placed in this case on a Privy Council
judgment in the case of Faizullah Khan and another v. Mauladad Khan and others (3).
Reliance was also placed on some observations made in Mahanth Ram Das v. Ganga Das
(4) and Shah Wali v. Ghulam Din alias Gaman and another (5).

In a case arising out of Rent Restriction Ordinance also section 1:07 (2) came up for
interpretation in Maula Bakhsh v. Abdul Hamid and 4 others (6) and it was held that it
"deals with the powers of the Appellate Court in the matter of deciding on merits the
controversy in appeal, and is not exhaustive of the powers for regulating the procedure to
be observed in processing the appeal. To put it differently, the provisions contained in
subsection (2) of section 107 of the Code do not, in any manner, override, or conflict
with, the provisions contained in the First Schedule to the Code regarding the disposal of
appeals." Earlier it was observed that "apart from the powers enjoyed by the Court of the
original jurisdiction, the appellate Court has the powers mentioned in subsection (1) of

Page No. 18 of 33
section 107 of the Code of Civil Procedure. It is, therefore, not correct to say that the
appellate Court does not possess greater powers than those enjoyed by the Court of. the
original jurisdiction."

(I) P I, D 1968 Pesh. 106 (2) P L D 1970 Dacca 532

(3) AIR 1929 P C 147 (4) AIR 1961 SC882
(5) P L D 1966 S C 983 (6) P L D 1971 Lah. 5 r2

In the case of Mahmood Ahmad already noticed, while making reference to another
Lahore case it was held that whether it is a plaint or a memorandum of appeal it cannot be
rejected for insufficiency of stamp unless the party concerned is given an opportunity to
supply deficient stamp within a time fixed by Court. Reliance was placed in this case on
Sultan Muhammad v. Muhammad Yousaj and another (1) and Rashid Ahmad v.
Muhammad Khan (2).

The Azad Jammu and Kashmir Supreme Court in the case of Muhammad Boota v.
Farzand Ali and another (3), examined the provisions contained in section 149, Order
V11, rule 11, C. P. C. and section 4 of the Court Fees Act, and held that the Court must in
the first instance grant time to make up the deficiency of court-fee on memorandum of
appeal, The provisions of Order V11, rule 11 was applied to the question of deficiency of
court-fee on a memorandum of appeal and section 149, C. P.. C. was also considered in
the context that the appellant in that case had failed to avail of the initial opportunity
afforded. under Order VII, rule I 1(c)

The foregoing state of case-law would show that whether in Pakistan or in India, the case
of Bal want Singh has often been cited in support of the view that Order VII, rule 1 I (b)
and (c), C. P. C. does not apply to the memorandum of appeal ; though as stated earlier
many High Courts have adopted the contrary view. The reasons which prevailed in the
case of Balwant Singh are that section 107, C. P. C. in terms does not make Order VIT,
rule 11 applicable to appeals ; -

that similar provisions as contained in Order VII, rule 11 regarding plaints are separately
available in Order XLI regarding appeals, thus the ?after would apply to the exclusion of
the former ; and that a memorandum of appeal, till the court-fee is paid is no `document'
to be judicially noticed so as to attract the provisions of Order VII, rule 11 for correction
viz-a-viz. court-fee and after the period of limitation it is otherwise to be ignored as time-
barred.

With respect, none of these considerations is weighty enough to hold that Order V1I, .rule
11 (b) and (c) read with section 107(2), C. P. C. would not apply to memorandum of
appeal as it does to a plaint. The first reason has also been adopted in some judgments
noticed earlier with the observation that even if section 107(2) made Order VII, rule 1
l(b) and (c) applicable to appeals, it was regarding what the appeal Court could do about
a plaint when considering its validity during the hearing of the appeal and not that it
applied to the memorandum of appeal itself.

There is nothing in the language of section 107 to suggest that it mad any specific
provision of the C. P. C. in its terms, applicable to appeals. Subsection (1) thereof no
doubt relates to certain powers and functions o an appellate Court which are spelled out
in Order XLI, C. P. C. also (se Order XLI, rules 4, 20, 23, 23-A, 24, 25, 27, 28 and 33) ;
but that does not mean that for this reason the other powers and duties of the trial Court
not so easily relatable to specific orders/rules of C. P. C. are not applicable to the
appellate Court.' Subsection (2) of section 107 would, if that were so, become by and
large, redundant. Similar conclusion would be reached when examining whether the
provisions specifically made in appeals in Order XLI or elsewhere (other than section
10.7) furnish complete procedure for the appeals. The answer is in the negative. But for
section 107 particularly subsection (2) thereof the appellate Court would not be able to
process the

(1) P L D 1959 Pesb. 120 (2) P L D 1961 B J 76 (3) 1980 C L C 1124 appeal proceedings
to the stage of completion for hearing. Order XLI, C. P. C. has not provided for all
eventualities. Order VII, rule I I (b) and (c) amongst others by virtue of section 107(2) fill

Page No. 19 of 33
the gaps of procedure which is not directly provided for the appeals in Order XLI, C. P.
C. Thus, in the relevant context section 107 without making any particular reference to a
particular stage of appeal or a document therein, is applicable to appeal proceedings. The
argument that the omission of the phrase `memorandum of appeal' from section 107(1)
supports the plea that in term it would not apply to appeal and that it is applicable thus
only to `plaint', is without any support from the point of view of logic or practice: It is,
therefore, obvious that section 107 (2) is also applicable to memorandum of appeal.

Rule 3 of Order XLI provides for the rejection of appeal on noncompliance with the
Rules of procedure. The strict view adopted in the case of Balwant Singh is that it is
exhaustive of the reasons for such rejection. Even if it were so it does not confine the
process of the drawing up of the memorandum of appeal to the preceding rules 1 and 2
(ot Order XLI) only. If that were so and general provisions of C. P. C. relating to the
drafting of the plaint and pleadings were not applied "as nearly as may be", by virture of
section 107(2), C. P. C. to memorandum of appeal, the latter would be rendered
incomplete regarding its preparation and processing. Thus, in this behalf the reason of
availability of all relevant necessary procedure in Order XLI is to say the least, with
respect, very weak. On the other hand Order XLI, rule 3 is to be read with the other
relevant provisions of C. P. C. regarding drawing up of and processing of the 'plaint' as
applicable to appeal. The expression 'here in before' has also been used in this context in
Rule 3 i a wider sense as relatable to rules 1 and 2 of Order XLI and other rules in C. P.
C. which would be attracted by reference to section 107(2), C. P. C.' The same as
discussed earlier, provides for all relevant matters which have . not been specifically
mentioned in rule 3.of Order XLI, in this behalf. And that being so, clause (c) of Order
VII, rule I I which relates to the drawing up for the plaint on a properly stamped paper as
an assential requirement, to save it from ultimate rejection for non-payment of the court-
fee would also apply to the appeals. Accordingly it is held that Order XLI, Rule 3 is not,
exhaustive in this behalf.

Even on general considerations it was held in F. A. Khan v. Government of Pakistan (1)

and The Province of East Pakistan v. Muhammad Hossain Mia (2), that the original and
the appeal proceedings are steps in reality in one cause and process. And when appeal is
filed the original matter becomes sub judice and is reheard by the appellate Court, which
does not act merely as a Court of error. That being so, it will not be correct to say that the
`plaint' and 'memoradum of appeal' are such documents that they cannot at all be treated
at par in procedural respects in accordance with the enabling and very wide provision in
that behalf made in section 107 (2), C. P.
(1)PLD1964SC520 (2)PLD1965SC1 (3) P L D 1976 S C 625

Accordingly there is no justification for making an exception on the subject under

discussion. See also Muhammad Yagub v. Chairman, Election Tribunal, N.-W. F. P. (3),
wherein provisions of Order XXXIX, rules I and 2 were applied together with Order XLI,
rule 5, when considering the question of power of an appellate forum to grant a
temporary relief.

There is another aspect of the matter. The application of Order VII, rule I1(b) (c) to
appeals in one sense at least is salutary for the progress of the appeal, for hearing. If it is
applied then as would be presently shown It might not be possible to reject a
memorandum of appeal on ground of deficiency of court-fee unless in accordance
therewith an opportunity is provided, to supply the required court-fee. It is also conducive
for a purpose amongst others, for which Order V11, rule 11 (b) and (c) were enacted
namely collection of State revenue in so far as appeal stage of the Court process is
concerned. As would be presently shown, it is obligatory under Order VII, rule I 1(c) to
afford one opportunity to supply the deficiency in Court-fee, before rejection of the plaint
under the said provision. If as is discussed above there are two interpretations of section
107(2) (when read with Order VII, rule II (c) and Order XLI, rule 3) then the one
favouring, the saving of the appeal proceedings from rejection on ground connected with,
collection of public revenue by affording the said opportunity, would have to, be adopted.
Thus the age old conflict on this fiscal-cum-procedural question is resolved in favour of
the subject (the appellants). The result is that Order VII, rule 11 (b) and (c) applies to
plaints as also to memoranda of appeals.

Page No. 20 of 33
The last reason which prevailed in the case of Balwant Singh is that of limitation namely,
that a memorandum of appeal will be treated as a useless piece of paper till it is stamped
properly and it would not be deemed to have been instituted and presented till the day of
the supply of the deficient court-fee. On this also admittedly there has been conflict of
authority. But it is not necessary to survey the same regarding application of Order VII,
rule 11 (b) and (c) because the question now stands resolved by a recent Full Court
decision of this Court in Mst. Parveen v. Mst. Jamshed Begum (1), which has been relied
upon in Shahna Khan v. Aulia Khan (2). It is not out of place to add here that in the Full
Bench case of Lahore High CourtJagat Ram v. Misar Khairaiti Ram (3), it was held that
the question of exercise of discretion viz-a-viz "contumacy" and/or "positive mala fides"
in matter of court-fee should be resolved in the sense the expression bona fide is used in
the General Clauses Act and not as used in the Limitation Act. And in that context only it
was ruled that the discretion "is expected to be normally exercised in favour of the
litigant except in cases of contumacy..."

(1) P L D 1983 S C 227 (2) P L D 1984 S C 157

(3) A I R 1938 Lab. 361 (4) 1 L R 7 All. 775

It may be observed that the reason for applying such strict rule of interpretation in some
cases of pre-emption so as to have recourse to section 3 of Limitation Act instead of
proper application of Order VII, rule 11 (b) and (c) or for that matter sections 148 and
149, C. P. C. and section 28 of Court Fees Act, was the then prevailing notice that right of
pre-emption was

redatory. This view suffered considerable change in post-Partirion period( Pin Pakistan.
On reason being that it was against Islamic jurisprudence wherein this is a right as much
enforceable as any otner right and further that it has a connection with the law of
inheritance in Islam as, was observed by Mahmood, J. in Gobind Dayal v. Inayatullah (4),
at p. 782 as follows :

"Upon the present occasion it is unnecessary to consider whether "gift" can properly be
described as a "religious usage or institution" within the meaning of section 24. I am here
concerned only with the question whether pre-emption can be so described. My own
opinion is that it can, and although I cannot add much to the reasons given by Spankie, J.
1 may observe that pre-emption is closely connected with the Muhammadan Law of
inheritance. That law was founded by the Prophet upon republican principles, at a time
when the modern democratic conception of equality and division of property was
unknown even in the most advanced countries of Europe."

This Court has also adopted the rule that a pre-emptor cannot b disallowed a relief or
prayer on account of any such like notion. See Allah)' Ditta v. Muhammad Ali (1) and
Hadayat Ullah v. Murad Ali Khan (2). Similarly, the approach in this behalf in a recent
case Jan Muhammad v. Shukeruddin (3) is to the same effect. Thus, it would be no more
lawful to deprive a plaintiff or appellant of any relief simply because it happens to be a
pre-emption matter. The law as it is, has to be applied without any such consideration.
Otherwise it would, besides other consequences, also negate the relevant (Article 31)
principle of policy contained in the Constitution, which is not permissible.

It is necessary at this stage to examine as to why notwithstanding the physical

presentation of a document e.g. a plaint should not be considered as proper presentation if
it is otherwise in accordance with the provisions contained in this behalf in section 26 and
Order 1V, Rule 1 C. P. C.

The cases which have adopted the ordinary rule of interpretation in this behalf proceed on
the reasoning that the actual "institution" of "presentation" of a document "in time"
cannot be rendered as "beyond time" for purpose of section 3, Limitation Act, simply
because the Courts failej to perform properly the act of a revenue collecting agency. A
well-known Privy Council case already referred to has been relied upon in many
judgments. It is Faizullah Khan v. Mauladad Khan (4). The following observation of the
Judicial Committee therein, is of course instructive on question of the duty of the Court to
keep separate the two considerations of court-fee collection and bar of limitation:

Page No. 21 of 33
(1)PLD1972SC59 (2)PLD1972SC69 (3) 1980 C L C 186 (4) AIR 1929 P C 147

"But upon a second point-an important point of procedure-their Lordships think it right to
add the following :-Granted that a fee had been paid which was insufficient in amount.
What was the duty of the Court? In such a case as the present it appears to be pre-
eminently one for the exercise by the judicial authority of the discretion for giving an
opportunity to add to the amount lodged. the extra Rs. 70 or 80 required or for deferring
the question of the amount of fee under the Court Fees Act until final value was
ascertained.".........

"Even accordingly if the mistake insisted on, had been made, this, in the opinion of the
Board, was a plain case for rectifying that situation if it could be done, and the Courts are
fortunately furnished with an easy method of doing so : Section 149; Civil Procedure
Code" ...............

"It will be observed that that discretion extends to the whole or any part of any fee
prescribed and can be exercised at any stage in the case, while finally upon the extra
payment being made; then the document is to have the same effect as if it had been paid
in the first instance. This also answers the argument presented under the Limitation Act.
The dates are as follows : The decree of the Subordinate Judge was dated 24th March,
1924 the first appeal was on 27th May and the second on 2nd June, bringing before the
appeal Court the respective claims of each suitor. The time for limitation of the appeal is
90 days. and it is thus seen that both appeals were within time. They were not a nullity.
On the contrary, they were documents duly presented to and accepted by the Court, and
as to the fee thereon. should the valuation be unsatisfactory or in the end insufficient, that
is validated by the additional payment, the result of which payment is that the document,
namely the memorandum of appeal, stands good for its date. The appeals are accordingly
not time-barred."

This Court has also held though in a different context that the institution) of the suit is by
presentation of the plaint when it is accepted by the presiding officer "any defects
notwithstanding". See Muhammad Siddiyue v. Zawar Hussain Abidi (1). To the similar
effect namely that validity for limitation is not affected by deficient court-fee, are
Gavaranga Sahu v.Botokrishna Patro (2) and Hari Ram v. Akbar Hussain (3) wherein it
was held) that the plaint is a plaint even if it is not properly stamped. See also Ramgopal
Chunilal v. Rumsarup Baldevdas and others (4), George Benjamin Hamvson
v.Jeewanmall Bros. (5) and Stuart Skineer alias Nawab Mirza v. William Orde and others
(6).

It is also appropriate here to state the well-accepted rule about Courts' attitude towards
the collection of court-fee as agent of State. It is to the; effect that the Court Fees Act like
the other fiscal statutes is to be construed s strictly and in favour of the subject ; and that
it was passed with the object of securing revenue for the benefit of the State and not to
arm a litigant with a weapon of tecnicality to harrass his opponent-See Rachappa Subruo
v. Shidappa Venkatrao (7), Muhammad Sharif v. hfst. Natho (8) and Sharaf Faridi v. !1-1.
S. Shahani (9).

(1) P L D 19'6 S C 572 (2) 1 L R 32 Mad. 305

(3) 1 L R 29 All. 749 (4) A I R 1934 Bom. 91
(5) A I R 1935 Sind 225 (6) 6 1 A 126
(7) AIR 1918 P C 188 (8) P L D 1965 Lab. 686
(9) P L D 1975 Kar. 59

One more conclusion that can be drawn from the foregoing discussion is that the failure
to supply proper court-fee in the context of the Court Fees Act and section 149 and Order
VII, rule 11 (c) can at best be equated with non prosecution and not with non-institution
or presentation of the matter/ document nor with the bar of Limitation. Accordingly,
considerations in that ; behalf for exercise of discretion under sections 148 and 149 and
the relevant provisions of Court Fees Act should be different from those under section 5
of the Limitation Act, which in any case does not apply to the suits. To apply the latter to
the former cannot be justified on any rule of interpretation. This is what was thought as
the proper approach by the Lahore Full Bench in the case of Jagat Ram (1938) when

Page No. 22 of 33
discovering the meaning of bona fides from the General Clauses Act rather than applying
the Limitation Act. In the light of these additional reasons on this subject the rule laid by
this Court in the cases of Mst. Parveen (1 983) and Shahna (1983) is re-affirmed. For all
these reasons it is accordingly held that when considering the options for exercise of
discretion for grant of time for supply of deficiency in the courtfee, considerations
relevant to bar of limitation shall not be taken into account.

The P. C. case of Staurt Skinner alias Nawab Mirza (1879) is indeed very instructive
regarding some salient features of the controversy which are the same today-more than a
Century later. 1t is high time that notwithstanding the judicial exercise, the legislative
intervention should also be seriously considered on the lines that the law of court-fees
might be totally separated from that of Civil Procedure Code. And if the law of
Limitation is to be introduced at all in relation to court-fee it should be done clearly and
specifically in the law on that subject. In doing so some of the practical aspects pointed
out at page 135 of the report in Skinner's case might serve as guidelines even though the
case formally was concerned with the late payment of court-fee by a plaintiff, who gave
up the plea to sue in forma pauperis and in the meanwhile limitation period elapsed.
Mention is also made of benefit to both sides if lis is adjudicated. The theory or
conversion of piece of paper into a plaint only on the day of payment of the court-fee,
was rejected without reservation. The following very weighty observations cannot at all
be lost sight of even today :

"The petition of plaint was placed upon the file and numbered on the 19th of July, 1973
and this is the plaint that is allowed to go on. Although the analogy is not perfect, what
has happened is not at all unlike that which so commonly happens in practice in the
Indian Courts, that a wrong stamp is put upon the plaint originally, and the proper stamp
is afterwards affixed. The plaint is not converted into a plaint from that time only, but
remains with its original date on the file of the Court, and becomes free from the
objection of an improper stamp when the correct stamp has been placed upon it.

"This case, which is not provided for by the Act, approaches more nearly to the state of
things contemplated by section 308 than that contemplated by section 310. There are no
negative words in the Act requiring the rejection of the plaint under circumstances like
the present, nor anything in its enactments which would oblige their Lordships to say that
this petition, which contains all the requisites which the- statute requires for a plaint,
should not, when the money has been paid for the fees, be considered as a plaint from the
date that it was filed. It is obvious that very great injustice might be done if this were not
to be the practice. There could hardly be a stronger instance of the mischief which might
arise that what would have happened in this case."

The question of finding on fraud by the Court as would be presently highlighted in this
judgment was, however, treated on a different footing ; though even then, avoiding an
inference of interjection of the law of limitation ; regarding which it was separately
clearly observed that the suit shall always tie deemed to have been `instituted' when the
memorandum in that behalf is filed in Court.

The reasoning in the Lahore case of Balvant Singh (1947) and those cases which
followed it not having been found convincing, the rule laid down therein that the enabling
provision contained in Order V11, rule I1 (b) (c) is not applicable to appeals, is not
correct. The contrary view in this behalf is accordingly approved and upheld. Thus, the
2nd question on which leave was granted in this case and noted at page a is answered in
the affirmative insofar as the application of Order VII, rule 11 (b) (c) read with section
107 (2) and Order XLI, rule 3, C. P. C. to the memorandum of appeal, is concerned. It is
to be emphasised that notwithstanding the general discussion on the interpretation of
section 107, Order VII, rule I1 and Order XLI, C. P. C. th

specific question resolved for the present in this case is only regarding the application of
clause (c) read with (b) of Order VII, rule 11 and not the other clauses of rule 11 namely
(a) and (d).

The remaining issues raised in the leave granting order can be answered straightaway
without noticing the vast conflict of authority in that regard amongst the High Courts in

Page No. 23 of 33
the sub-Continent prior to and after the Independence ; because they now stand resolved
by this Court in the two well-known judgments of this Court. They are Muhammad
Nawaz Khan v. Makhdoom Syed Ghulam Mujtaba Shah and Shah Nawaz v. Muhammad
Yousaf and 3 others (11. The later well-known case of Mst. Walayat Kharun gave rise to
some questions in its practical application during the last four years. It would also require
a deeper analysis so as to remove the so-called conflict which Maulvi Sirajul Haq,
learned counsel for the respondents in these appeals, pointed out, of course with respect,
is creating some difficulties for the lower Courts.

It goes without saying that the two decisions of this Court in the cases of Muhammad
Nawaz Knan (1970) and Shah Nawaz (1972) did resolve the controversy regarding
application and interpretation of Order VII, rule 11 (c) and section 149 read with 148, C.
P. C. They were followed accordingly by the lower Courts as also by this Court, till 1979.
It may be mentioned here that the first mentioned case of Muhammad Nawaz Khan was
decided by two learned Judges while the second judgment is by a Full Bench of three
learned Judges of this Court. Mr. Justice Yaqub Ali who wrote; the first judgment was
also member of other Bench. It is also to be mentioned that both the cases are without any
note of dissent and there is single judgment in each.

In the first case of Muhammad Nawaz Khan the facts were as follows

"The petitioners are vendees of agricultural land situated in mauza Matoi, district
Muzaffargarh. A suit for pre-empting the sale was filed by the respondent No. 1 which the
petitioner contested inter alia on the grounds that it was undervalued and the plaint was
insufficiently stamped. The trial Judge framed preliminary issues covering 'these
objections and found the suit undervalued as five out of the eight khatas were not
assessed to land revenue and the plaintiff had omitted to compute the value of the rest of
the kharas in accordance with the relevant provisions of the Court Fees Act. Instead of
requiring the respondent No. 1 to revalue the paint and pay the additional courtfee as
required by Order VII, rule 11, C. P. C. the trial Judge, however, proceeded to dismiss the
suit on the view that although ample opportunity was afforded to the respondent No. I by
the petitioner to revalue the suit and pay the deficient court-fee, he had on the contrary
chosen to contest these issues and thereby allowed the period of limitation to expire. The
High Court on a first appeal by the respondent No. 1 found the order of the trial Judges
contrary to the provisions of section 149 and Order VII, rule 11, C. P. C. under which he
was required to allow the plaintiff an opportunity to correct the value of the suit and pay
deficient court-fee which shall have the same force and effect as if such fee had been paid
in the first instance. The order dismissing the suit was accordingly set aside and the suit
remanded to the High Court for allowing the plaintiff to make good the deficiency in
court-fee."

The two arguments raised by the counsel were as follows

"that cases of undervaluation of relief are excluded from the purview of Order VII, rule
11 (c) and that under section 149 it was within the (1) 1972 S C M R 179
discretion of the trial Judge to refuse an opportunity to make good the deficiency in the
court-fee after the limitation had expired" ; and, that "according to the learned counsel on
those cases fall under clause (c) of rule 11 of Order VII, C. P. C. in which the relief
claimed is correctly valued in the first instance. In other words if the relief claimed is
undervalued and as would necessarily happen in every case the plaint is written on a
paper insufficiently stamped then neither clause (b) nor clause (c) would be attracted and
the case will fall within the ambit of section 149 under which the Court has the discretion
to refuse an opportunity to supply the requisite stamp paper."

Both the arguments were repelled. It was observed that the interpretation placed by the
learned counsel on section 149 and Order VII, rule 11. C. P. C. was unacceptable. After
making some remarks regarding two precedent cases : one of Full Bench from Lahore
High Court of Jagat Ram (1938) ; and the other from Peshawar High Court of Sultan
Muhammad (1959) ; it was ruled as follows

"Apart from these weighty judgments it would, indeed, be anomolous if limitations is not
saved in cases in which the law requires the Court to allow the plaintiff to correct the

Page No. 24 of 33
valuation of the relief claimed in the suit which must necessarily entail making up
deficiency in the stamp paper affixed on the plaint, but time should automatically be
enlarged in cases in which the Court has the discretion to grant time to pay the whole or
part of the court fee prescribed. This will- offend against the rule of harmonious
construction. The provisions of Order VII, rule 11 and section 149 are, therefore, to be
read together. Consequently where the plaintiff is required to correct the valuation of the
relief claimed in the suit, he shall further be required to supply the requisite stamp paper
and on compliance it shall have the same force and effect us if such fee had been paid in
the first instance."

In the context of the a fore-reproduced declaration of law, it is appropriate here to take

note of the judgment of the Peshawar Bench of the High Court of West Pakistan which,
as already noted, was noticed when making the said pronouncement. It is a Division
Bench judgment in Sultan Muhammad v. Muhammad Yousaf and others (P L D 1959
Pesh. 120). The question involved therein was simple and direct as to whether under
Order ViI, rule 11, it was obligatory for the Court to grant time for supplying the deficient
court-fee before rejecting the plaint under clause (c) of rule 1 , and, if that were so, how
the question of the validity of the plaint at the time of the original presentation was to be
resolved. It was held as follows

"This provision of law makes it compulsory for the Court before rejecting the plaint to
give some time to the plaintiff to make up the deficiency and the Court cannot
straightaway reject the plaint without giving such time."

Before answering the second part of the question the learned Judges made comprehensive
analysis of the interaction of the provisions contained in section 149, C. P. C. vis-a-vis
Order V1I, rule 11 (c), C. P. C. section 28 Court Fees Act vis-a-vis section 149, C. P. C.
section 10, Court Fees Act vis-a-vis Order VII, rule 11 (c) ; and also the law of limitation
vis-a-vis that of court-fees. It was held that

"Looking at all the authorities we have no hesitation in arriving at the conclusion that the
date of the institution of a suit should be reckoned from the date of the presentation of the
plaint and not from that on which the requisite court-fee is subsequently put in."

It is interesting to note that before embarking upon the exercise of reconciling the deepest
known conflict of authority, the learned Judges had made the introductory remark that
this question "is attended with considerable difficulty, because the law as enunciated by
the different High Courts at different times had created more confusion than clarity "

It is further interesting to note what has often been ignored regarding the Full Bench
decision of the Lahore High Court in the case of Jagat Ram (1938), namely, that the
reference made on these questions through an elaborate order of reference was in reality
not answered in the circumstances of that case. And only section 149, C. P. C. was
interpreted be the Full Bench in the manner already indicated namely that the exercise of
discretion there under is not controlled by or dependent upon the considerations which
are relevant under the Limitation Act. This Full Bench case in this behalf, as noticed
earlier was, approved by this Court in both the cases of Muhammad Nawaz Khan (1970)
and Snah Nawaz (1972).

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
tire Court to allow the plaintiff to correct the valuation of the relief claimed ire 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 the court fee prescribed ; and

(c) Consequently where the plaintiff is required to correct the valuation of the relief
claimed in the suit, "he shall further be required to supply the requisite stamp paper and

Page No. 25 of 33
on compliance it shall have the same force and effect as if such fee had been paid in the
first instance."

The case of Shah Nawaz (197?,) also needs detailed examination so as to understand the
true import of the latter case of Mst. Walayat Khatun. The facts therein were that a person
filed a suit for pre-emption on 18th November, 1968 presumably a day before the expiry
of the period of limitation but failed to pay the proper court-fee. Subsequently an
application was moved for amendment of the plaint and for supplying the deficiency in
the court-fee. This application was conteNted by the defendant-vendee but it was allowed
by the trial Court. The vendee brought the matter up to the Supreme (:oust where it was
argued on his behalf "that in a suit for pre emption the plaintiff should not have been
allowed time to put in deficient court-fee if he had deliberately failed to pay the requisite
court-fee in spite of the fact that his attention had been drawn to the deficiency in the
court-fee by means of the written statement filed by the vendee about one year back".
Reliance was placed on some observations made in regard to the exercise of discretion in
the Lahore case of Saeed Ahmad and others v. Karam Singh (P L D 1949 Lab. 380).

After making reference to the earlier Full Bench Lahore case of Jagat Ram (in so far as it
excluded the consideration of the question of exercise of discretion under the light of the
law of limitation) the learned Judges in the case of Shah Nawaz reproduced the rule laid
down in the case of .Muhammad Nawaz Khan. The same has already been reproduced in
the earlier part of this judgment. Then, before reiterating the rule regarding Order VII,
rule 11 (c), C. P. C. to the effect that "the plaint can only be rejected in case where the
relief claimed is undervalued and the plaintiff, on being required by the Court to correct
the valuation within time to be fixed by the Court, fails to do so", the learned Judges
provided the following two guidelines regarding 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.

On this consideration in the case before the Court the order of the trial Judg permitting
the plaintiff to supply the deficiency in court-fee was upheld, not-1 withstanding the bar
of limitation of more than a year.

The combined effect of the rule laid down by this Court in the cases of Muhammad
Nawaz Khan and Shah Nawaz would thus be that in cases of deficient court-fee which
would include in the context of now amended law' certain exemptions in this behalf, the
Court on discovery of an omission/error in valuation of deficiency in court-fee, shall
acting under OrJer VII, rule 11(b) and (c) allow time to the plaintiff to make correction
and supply the deficiency. If he does so then the plaint shall be deemed to have been
validly filed on the date of the original presentation notwithstanding the fact that the
court-fee was supplied after the expiry of the period of limitation. If however the plaintiff
is guilty of contumacy which terms would be separately explained hereinafter and/or he
commits positive act of male fides the plaintiff could be held dis-entlited to further
exercise of discretion under section 149 read with section 148 of C. P. C.

Contumacy in the context is used in the general dictionary sense and not as a word of art.
It means contempt (if lawful authority, obstinacy, or stubborness. It is not difficult to
discover the connection of these attitudes 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
contumacy. Similar interpretation of this word in Sohara v. Rashid Ahmad (P L D 198 1
Lah. 261) by Aftab Hussain, J., as he then was, is approved.

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 (P L D

Page No. 26 of 33
1974 S C 151) it was equated with bad faith. And "bad faith" was equated with "malice in
fact", the nature and connotation whereof would depend upon the circumstances of each
cast' and the situation vis-a-vis the personal motives involved. When a thing is done in
bad faith against another party concerned in a lis it can partake of "wrongful loss" or
"wrongful gain" ; but if none of the other parties to the Us is involved and the act of bad
faith is regarding revenue of the State, then it will not ordinarily reflect on the Its between
the parties directly. For example in case of public revenue some bad faith, will be
projected in an attempt to save money (simpliciter) but "positive" male fide as the phrase
as has been used in these cases means more than that, involving vivid consciousness that
it is fraudulent. And the same again would depend upon the circumstances of each case.

Before proceeding further so as to comment upon the case of Mst. Walayat Khatun it is
necessary to clarify another confusion regarding inter-action of Order VII, rule 11 (c) and
section 149, C. P. C. It has been held in the afore-analysed cases that it is obligatory to
grant time for supply, of deficiency in court-fee betore rejecting the plaint under Order
VII, rule 11 (c). It is discretionary however to grant time under section 149, C. P. C. As'
has already seen when explaining contumacy, it is not lawful to reject a plaint` under
Order VII, rule 11 (c) without first granting time to the plaintiff to supply the deficient
court-fee. Order VII, rule 11 is in a way a penal provision and shall be construed strictly
so as not to be resorted to unless the conditions for exercise of such drastic power are
satisfied. In the clause relevant here namely (c) it is provided that the plaint shall be
rejected there under only when after the grant of requisite time the plaintiff has failed to
supply the required/specified court-fee. Thus, it is mandatory and obligatory for the Court
to grant time under clause (c). The question of discretion does not arise. And it is so
whether the occasion arises at the very institution of the plaint or at a later stage.

If as afore-explained time is to be allowed as an obligation under Order VII, rule 1 I (c),

then the question arises as to how the `discretion' element in section 149, C. P. C or for
that matter section 28, Court Fees Act can be interjected in it. It cannot be.

In some cases difficulty was felt regarding the use of the word "discretion" in section
149, C. P. C. But it was not realised that the time granted under this provision in exercise
of discretion, or granted as an obligation under the other namely Order VII, rule 11 (c),
would lead similar consequences. Can it be said that if time is granted as a discretionary
measure, the party concerned F will get the advantage mentioned in second part of
section 149, C. Y. C ,

but if it is granted by the Court as its obligation, it will lose that F advantage The answer
would be in the negative. Therefore, when time is granted as an obligation under Order
VII, rule 11 (c), it is granted nevertheless for supply of deficient court-fee which being
the main object of section 149, C. P. C., the advantages thereunder will be available to the
beneficiary of the exercise of the obligation also. The further question as to why then the
word 'discretion' is used in section 149, cannot detain us any longer. There are other
occasions for supply of court-fee) stamps under the C. P. C. For example under sections
20 tQ 27 of the Court Fees Act read with the relevant provisions of C. P. C. require the
deposit of G of requisite stamps for issuance of the processes. Court might have to
exercise discretion in those and other matters for allowing time in this behalf and the
considerations of obligation as under Order VII, rule 11 (c), would not be attracted
thereto.

Same would supply to the advantage under certain provisions of the Court Fees Act-
including section 28 thereof. But it is necessary here to deal with the other relevant
provisions of Court Fees Act also in the restricted context of the present discussion.

It is true that the 'documents' mentioned in various sections including H sections 4 and 6
cannot be filed/received unless "proper fee" is paid, therefore section 28 is a general
consequential and remedial but residuary provision in that behalf ; but `proper' stamp is
the subject thereof. There is no water-tight compartlisation that it is the duty only of the
litigant to look into the what is proper fee or proper stamp and not of the public
functionaries concerned. Where one's duty ends the other's starts. It is also not difficult to
visualise that the `obligation' and `function' are complementary to each other. It is in that
sense that the phrases "proper fae" and "proper stamp" are to be construed. If the Court

Page No. 27 of 33
has enough time ; it would perform the function immediately on presentation of the
document. But the Legislature would be deemed to have known the difficulties and
shortcomings. Hence sections 9 and 10 were enacted to help the litigant in some types of
cases through an investigation about the proper court-fee. It would in these as also in
other cases take time. And in many cases the period of limitation would pass. But
notwithstanding the same thane is no provision in the entire Act that the litigant is to be
penalised for delay by way of dismissing the case as time. barred. Instead section 12 (1)
shows that the matter is one of purely fiscal nature and must end as soon as possible. And
under section 12 (2) the revenue in case of deficiency can be collected even by the
appellate Court without resort to the (retrospective) dismissal of the plaint as time-barred.
When the deficiency regarding the court-fee payable at the trial stage, is discovered
during the appeal, the party is to be allowed time to supply the deficiency even at that
stage, It is only on his contumacy at that stage also that the consequence like that of non-
prosecution as provided under section 10 (if), shall ensue. Then and then only the plaint
shall be dismissed on account of such non-compliance with the order of the appellate
Court. If, however, he pays, no such consequence would follow regarding any earlier
stage -say of the trial proceedings, notwithstanding the fact that they were conducted
throughout (according to the finding under section 12(ii), without payment of the proper
court-fee. If time would have been the essence of the consideration of the consequence of
non-payment of "proper fee" the dismissal of suit for non-prosecution at the earlier stage,
would have been accompalished through the appellate forum without affording
opportunity of deposit. But that is not visualised by section 12 (ii) when read with section
10 (ii)-the latter also providing that the proceedings shall be stayed till the payment of the
proper fee. If it is paid within the fixed time, no injurious consequence shall ensue and
the matter would end. !f, however, it is not paid within the time allowed it shall be
dismissed for non-prosecution subject to the further extension of time under the law e.g.
under section 148, C. P. C. The application of section 19 as already noted is confined to a
limited field while sections 12 and 28 are of wider application. But the consequences of
payment or nonpayment within the time fixed/extended (though in different language and
context) are as discussed above of similar import regarding the advantage of saving the
process or losing it for non-prosecution, sections 149 and 148, C. P. C. would apply to
them as provisos and savings in addition to the ones inherent in themselves as explained
above. The position of Order VII, rule 11 (c), C. P. C. however is different. Nothing in the
Court Fees Act derogates from the obligatory character thereof. Therefore, as already
held, section 28 of the Court Fees Act or for that matter the other relevant provisions
would remain subject to Order VII, rule 11 (c) as understood and applied in the
mandatory sense discussed earlier. It further needs to be observed that in this context
what is not. permissible when done directly, cannot be permitted to be done indirectly.
Therefore, it would not be possible to avoid this consequence by the device that the suit
may not be considered at all under Order VII, rule I 1 for rejection of the plaint and thus
avoid the obligatory function under clauses (b) and (c) thereof. It is not possible because
the very purview of rule 11 which reads that "The plaint shall be rejected . . . . . . . '",
makes i mandatory for the Court to do this exercise in all cases where the court-fee is
deficient. In other words. on this relevant discovery the Court shall, as an obligation,
direct the party concerned to supply the deficiency within the time to be specified and no
its failure to do so, of course subject to the other provisions of the law in this behalf, it
shall have to reject the plaint or appeal, as the case may be. .

Now the stage has reached to state the background in which the well known case of Mst.
Walayat Khatun (1979) was decided by a Division Bench of this Court. The last case
earlier thereto in which the relevant questions 1 were examined in some detail by this
Court, was in 1972. Since 19 1 2 upto

1978 there are only few reported cases of this Court in which some question of court-fee
were noticed. However, as would be presently shown, no departure was made in any case
from what was held in the two cases of Muhammad Nawaz Khan and Shah Nawaz which
have already been analysed. These few cases during seven years are Hassan Bakhsh v.
Afzal Shah (1974 S C M R 364) wherein a party having been allowed three extensions
for supplying the deficiency in court-fee, tailed to do so-it was then held to be not entitled
to any further opportunity ; Jan Muhammad v. Ghulam Ghaus (1976 S C M R 141)
wherein this Court repelled the argument that the late supply of deficiency in court-fee by
a party entitled the opposite party to a benefit under the Limitation Act. It was also found

Page No. 28 of 33
that the counsel concerned justifiably waited for the decision of a relevant controversy by
a Full Bench of the High Court and Abdul Ghani v. Muhammad Alam (1976 S C M R
147) in which the plea to avoid rejection of plaint under Order VII, rule 11 (c),
notwithstanding sufficient opportunity of supplying the deficiency in court-fee having
been afforded, on the ground that tile concerned counsel misunderstood the order of
extension of time, was disallowed on the finding that the order concerned was
unambiguous and there was no reason to misunderstand the same.

In the foregoing background of the consistent and clear law declared by this Court
regarding interpretation of Order VII, rule 11 (b) and (c), C. P. C. to the effect that it was
obligatory to allow time for supply--of deficiency in court-fee before rejecting the plaint
and regarding refusal of discretion under section 149, C. P. C. only on grounds of
contumacious and positive mala fide conduct, it is necessary to analyse, interpret and
discover the true ratio in the case of Mst. Walayat Khatun. And also to see whether apart
from the common ratio there was any point of dissent made therein.

This exercise has become essential mainly for two reasons : One, the learned counsel for
the respondents in these appeals confidently and with full responsibility of course with
expression of due respect, contended that the decision in the case of Kist. Walayat Khatun
and subsequent decisions by this Court reported in various law Journals, has led to
conflict of authority in the J High Courts ; which according to him has further led to
confusion for the litigant public and the Bar. This, he urged, needed to be resolved. And
two, this Court in a Full Bench decision in the case of Shahna Khan already referred, has
already pointed out that the case of Mst. Walayat Khatun is authority and law declared
only to the extent of the common ratio of the two separate judgments, tendered therein.

Before considering the case of Mst. Walayat Khatun it needs to be acknowledged that
both the learned Judges who wrote the two separate judgments in that case commanded
respect as not only very senior members of Superior Judiciary but also on account of their
deep and extensive study in the field of Civil Law. With those remarks it is necessary first
to state briefly, the facts of that case as noticed in the leading judgment of Muhammad
Akram, J. as follows :

"Mat. Walayat Khatun petitioner (plaintiff on 9-2-1976 filed a suit for possession by pre-
emption of agricultural land measuring 14 Kanals 9 Marlas situated in village Gulmeri,
Tehsil and District Mianwali ostensibly sold for Rs. 12,000 vide registered sale-deed,
dated 11-2-1975. It is not necessary to narrate all the facts in detail for the purpose of the
present order It will be sufficient. to mention here that the plant was stamped with a
court-fee of Rs. 2 only and it was stated therein that the deficiency in the court-fee shall
be made good after ascertaining the net annual profits for the land after having obtained
the fard jhar pedawar for it. In these circumstances while entertaining the plaint, in the
absence of defendant, the Court on 10-2-1976/ directed the plaintiff to make good the
deficiency in court-fee before 18-3-1976. In spite of this the deficiency in the court-fee
was not made good until on 12-4-1976, 24 days after the extended time allowed by the
Court. Therefore, the defendant raised the objection that the plaint was not properly
stamped and that there was neither any sufficient ground for the grant of time to the
plaintiff to make up the deficiency in the court-fee nor the deficiency in the court-fee was
paid within the time allowed by the Court and as such there was no sufficient ground for
condonation of the delay committed by the plaintiff to make up the deficiency in court-
fee. In these circumstances the learned Civil Judge accepted the objection and dismissed
the suit/rejected the plaint undtr Order VII, rule 11, C. P. C. on 6-7-1977. Th:
plaintiff/petitioner filed an appeal but without any success and the same was dismissed by
the learned Additional District Judge, Mianwali, on the 5th December, 1977. the
plaintiff/petitioner then filed a second appeal in the Lahore High Court, (R. S. A. No. 46
of 1978) which was dismissed by a learned Single Judge of that Court on 19-2-1977. The
petitioner has now come up to this Court in this petition for special leave to appeal."

One main aspect of the afore-noted facts, it is to be emphasised, was that the plaintiff
having been allowed one month and eight days by the trial Court obviously under Order
VII, rule 11 (c), C. P. C. to supply the deficiency in court-fee, not only failed to avail of
this period but also consumed another 24 days in addition thereto, without supplying the
deficiency. Notwithstanding this aspect of the case the learned counsel for the plaintiff

Page No. 29 of 33
(petitioner in the Supreme Court) argued that all the three Courts below were in error on
facts of the case because the plaintiff could not supply the deficiency in court-fee on
account of being unaware of the annual net profits. In this behalf it was noticed in the
leading judgment that the plaintiff had got prepared a statement profits privately from the
Patwari and that after the institution of the suit a formal effort was made for obtaining the
said statement. It was also affirmed that the plaintiff had deliberately paid inadequate
court-fee of Rs. 2, but it is important that this alone was not considered as enough for
non-suiting her because the learned Judge further observed that "the Court however
allowed the extension in time to the plaintiff to make up the deficiency in the court-fee on
or before 18-3-1976 in accordance with rule I1 of Order VII of the Code of Civil
Procedure. In spite of this the petitioner failed to comply with the order within time for
any valid reason to the satisfaction of the trial Court." In this very connection it was
further noted that no reason was advanced before the First Appellate Court for the delay
even up to 12-4-1976. The learned Judge further observed that these findings by the two
Courts below were upheld by the High Court in Second Appeal because "no cogent
reason was at all assigned by the plaintiff on the record for this further delay in depositing
the deficiency in court-fee" "In these circumstances", it was held in the leading judgment,
"the trial Court was justified in rejecting the plaint in exercise of the discretion vested in
it (meaning thereby that the refusal of the trial Court to grant any further extension of
time was held justified). Likewise the two appellate Courts have also declined to interfere
with the order for good and sufficient reason we also see no force in this 'position. It has
no merits and is, therefore, dismissed." The learned Judge had also made mention of three
provisions presumably found relevant in reaching the afore-described decision. They are
section 28 of the Court Fees Act, which provides that no document which ought to bear a
stamp under this Act shall be of any validity unless and until it is properly stamped ;
section 149, C. P. C., which provides that the Court may in its discretion at any stage
allow the supply of deficient court-fee and upon such payment the document concerned
"shall have the same force and effect as if such fee had been paid in the first instance"-
section 28 supra also provides that "on being stamped accordingly the same (the said
document) and every proceeding thereto shall be as valid as if it had been properly
stamped in the first instance"; and lastly, section 148 of C. P. C. was referred which
provides that where once a period is fixed or granted by the Court for doing of any act
(for example as under section 149, Order V11, rule 11, C. P. C.) "the Court may in its
discretion from time to time enlarge such period even though the period originally fixed
or granted may have expired".

This decision cannot be assumed to have dissented from two judgments' of this Court in
the cases of Muhammad Nawaz Khan and Shah Nawaz rendered by two separate
Benches of this Court, which also included eminent Judges. No attempt was made either
to distinguish or make departure from the said well-known judgment. The initial refusal
of the learned trial Judge to reject the plaint with deficient court-fee without allowing at
least one obligatory opportunity under Order V1 I, rule 1 I and the grant of such an
opportunity to the plaintiff as an obligation (and also automatically) as ruled in the case
of Muhammad Nawaz Khan, was approved and not at all disapproved. On the contrary it
was specifically noted that "in spite of this" the plaintiff failed to supply the deficiency
within the extended period. It was further noted that she failed to supply the same during
a further (second period) of 24 days. And notwithstanding the same she having had the
benefit of privately prepared statement of net profits. further failed to place on record
upto the High Court stage any reason at all for this further delay in depositing the
deficiency in the court-fee, she was held no more entitled to indulgence by the Court. In
other words, her case was deemed to have been covered by one of the two alternatives
mentioned in the case of Shah Nawaz ; namely, contumacy without even an assertion . of
a reason for the repeated default. Therefore, leave to appeal was refused to her. No other
interpretation of the decision in the leading judgment in Mst. Walayat Khatun's case is
possible.

It is pertinent to note here that the use of word we regarding the decision reached in the
leading judgment analysed above is significant. Thus, in so far as that judgment and
reasons therein are concerned both the learned Judges concurred in the same. That
undoubtedly, therefore, is the common ratio in the decision of Mst. Walayat Khatun's
case. This supposition is supported) with the opening words in the separate judgment

Page No. 30 of 33
rendered by the second learned Judge-Karam Elahee Chauhan, J. It reads : "I agree with
my
learned brother". This should close the discussion on this subject with the remark that
thus for there is nothing in the said judgment to show that it declared any law different
from that in the two earlier cases and could not be cited in preference thereto. But the
discussion would not be complete without going into the effect of the other judgment.

The detailed second judgment commences with the quotation of section 28 of the Court
Fees Act. Sections 4 and 6 thereof are then mentioned with particular reference to the law
of validity of the document mentioned therein. Along therewith is also the statement
regarding section 149, C. P. C., its heading and contents. This section is described as a
great concession because it saves the document from dismissal "both for want of proper
court-fee or for consequently becoming time-barred, by the time the deficiency is made
good." It is also observed that it (section 149) is a salutary provisions which purports to
save litigants from drastic effects of a fiscal statute, where emphasis is more on
realization of Government revenue than to punish them for honest mistakes. Then more
specific reference is made to the dismissal of suits as time-barred under section 3 of the
Limitation Act if instituted after period of limitation without then holding that the initial
presentation of the plaint would not be "institution" thereof under section 26 read with
Order IV, C. P. C. It was repeated that the resort to section 28 of Court Fees Act and
section 149, C. P. C. when reckless "may destroy the plea of limitation available to a
defendant". It is in this strain that several other factors in addition to contumuclousness
and positive male fides were added by analysing different instances in which the vested
right vis-a-vis limitation, was interjected as a positive consideration. Lest further analysis
by us of these factors, as given in the second judgment, might lead to any further
misunderstanding, it is being avoided except the remark that the decision in the second
judgment on merits then proceeded on additional different considerations then those
which, as held above, are the common ratio in the leading judgment of Muhammad
Akram, J.

It is necessary to repeat that the wider question of limitation, which as already noticed in
the general discussion, has been the major consideration in some of the High Courts
which followed the restricted view of exercise of powers under Order VII, rule 11 and
sections 149 and 148, C. P. C. and section 28, Court Fees Act, was not made the basis of
the leading judgment. On the other hand, it is not at all mentioned therein. It is an
additional factor in the second judgment which, with respect, cannot be considered as
common ratio between the two judgments nor can it be considered as the deciding factor
in the case, nor as the law declared.

At this stage it needs to be mentioned that it is not unusual for a Court consisting of a
Bench of more than one Judge to render a decision consisting of more than one
judgments. It is obvious from the analysis of the decision in the case of Mst. Walayat
Khatun that Mr. Justice Karam Elahee Chauhan, with respect, insofar as his individual
opinion is concerned wanted to express a more strict view of the legal provisions
involved in the matter. He was aware that that strict view was not followed by this Court
in the cases of Muhammad Nawaz Khan and Shah Sawaz nor was adopted by
Muhammad Akram, J. in his leading judgment in that case of (Hsi. Walayat Khatun), to
which the former had agreed and which had become the common decision. But he also
wanted to place on record the other more strict view of the matter. This method of
expression of an opinion containing a line of dissent also, in addition to or apart from the
general line in the decision of the Court, is not in any way improper nor was against any
accepted practice; which in so far as the development of law is concerned is a healthy
practice. But that would not mean that the learned second Judge, with respect, tried to
overrule tile cases of Muhammad Nawaz Khan and Shah Nawaz by expression of such
single opinion in addition to the common decision rendered in the leading judgment, to
which he had agreed. These cases would not be de--med to be overruled or even departed
from. That being so the law laid down by this Court in cases of, Muhammad Nawaz Khan
and Shah Nawaz would continue to hold the field and contain the law declared,
notwithstanding the judgment in the case of Mst. Walayat Khatun.

The foregoing interpretation of the decision in the case of Mst. Walayat Khatu.n also
finds support from a judgment written by Karam Elahee Chauhan, J., a year after the

Page No. 31 of 33
decision in that case to which one of us (Aslam Riaz Hussain, J.) was also a party. It is
the case of Muhammad Shatif v. Maysood Ali (1979 law Notes S C 470). Incidentally
this case is on facts almost identical to, and would govern, both the cases before us.
Muhammad Sharif the petitioner in the Supreme Court (the plaintiff in a pre-emption
suit) raised objection during first appeal filed by the unsuccessful vendee-defendant, to
the effect that the appeal having been insufii„iently stamped had, by the time the
discovery of the insufficiency was made, become time-barred. The defendants-vendees
filed application for permission to supply the court-fee. It was allowed and the court-fee
was accordingly paid. The vendees' appeal, however was, subsequently dismissed on the
ground that the supply of the deficiency in the court-fee was at a time when the period of
limitation for filing the appeal had expired. On second appeal the Lahore High Court set
aside the judgment of the First Appellate Court by rejecting the said plea of limitation and
remanded the case for decision on other on issues on merits. The plaintiff then came to
the Supreme Court. The argument of the plaintiff that the defendants should have
stamped their appeal properly in accordance with the law of court-fee, and that it was not
a case for extension for making good the deficiency of court-fee, as also because
allegedly a right bad accrued to the plaintiff on ground, of limitation (as was held by the
lower Appellate Court), was rejected with very weighty observations as follows :

"No doubt, ignorance of law, generally speaking, is no excuse, but then each case
depends on its own facts and circumstances. In the instant case, it is a common ground,
that the appeal bore the same court-fee which had been filed by the plaintiff-petitioner
himself on his plaint and the same was the quantum of court-fee shown in the judgment
and a decree under appeal before the learned Additional District Judge. The defendants
thus were led in trap by the court-fee fixed on the plaint and the learned Additional
District Judge had rightly granted them time to get fard khalis munafa prepared so as to
fix the court-fee in accordance with the new scale or standards which had in the
meantime come into operation. It was, therefore, not a case merely of ignorance of law,
but, there was some element of mistake, firstly due to the endorsement of the Registry
of !he District Judge that the appeal was correctly stamped and secondly due to the
amount of the court-fee which had been affixed on the plaint and which was so shown in
the relevant copies of the judgment and decree granted to the defendants.

The question was essentially one of discretion and if the High Court in the regular second
appeal rectified the mistake committed by the learned Additional District Judge and
passed an order which ought to have been passed by the latter, the High Court committed
no mistake warranting interference by this Court."

Thus, the point regarding limitation which was the mainstay of the judgment impugned
before the High Court, was not given any importance in the consideration of the question
of grant of time regarding supply of deficiency in the court-fee in the exercise of powers
in this behalf whether under Order .11, rule 11, read with section 107 (2), C. 1'. C.; or
under section 149 read with section 148, C. P. C. ; or under various provisions of Court
Fees Act. It may further be observed that the judgment in the said case of Muhammad
Sharif can also be considered as an authority for the view that the court-fee on appeals
would be leviable in ; accordance with the law as it prevailed at the time of filing of the
appeal _P and not that which applied to the suit. And this very view we have already
adopted when approving the judgment of the Lahore High Court in the case of Syed
Manzoor Hussain Ghazi (P L D 1972 Lab. 743). Be that as it may it needs to be observed
that the opinion expressed by the same learned Judge in Mst. Walayat Khatun's case a
year earlier was not treated as !he law declared by the Supreme Court for the obvious
reasons already discussed including the one that it did not form the common ratio.

Another projection of this interpretation of Mst. Walayat Khatun's case by the same
learned Judge is found in the leave granting order, dated 18th July, 1979 (again more than
a year after the decision in Mst. Walayat Khatun's case) in Civil Petition No. 596 of 1978
out of which present Civil Appeal No. 136 of 1979 had arisen. This leave granting order
was also written by Karam Elahee Chauhan, J. to which one of us (Muhammad Afzal
Zullah. J.) was a party. The questions noted in another leave granting order (in Civil
Appeal No. 173 of 1978) as have now been discussed in this judgment, were by reference
noted for examination , obviously because Mst. Walayat Khatun's case was not deemed as
having finally resolved them. In the light of the foregoing comment in this behalf, it is

Page No. 32 of 33
accordingly had that the strict view expressed - in the second judgment in Mst. Walayat
Khatun's case is not the common ratio of the decision and has to be treated as individual
opinion of one learned Judge as discussed in this judgment and it -was yet to be made the
subject for a fuller examination by the Court.

This controversy (which as expressed by the learned counsel for the respondents some
amount of confusion) having ended, a short comment is necessary, with regaid to the
decisions by the High Courts and this Court after the decision in Mst. Walayat Khatun's
cage wherein either it was referred to directly or kept in mind indirectly. Learned counsel
is somewhat right in stating that two lines of approach-one strict and the other liberal, can
be seen in these cases. In view of the foregoing discussion and decision on vital questions
involved in the controversy it is not necessary to discuss all these subsequent judgments
except that they shall be deemed to be judgments in the facts and circumstances of those
cases. And that the cases of Muhammad Nawaz Khan and Shah Nawaz shall be deemed
as having declared the law holding the field, as explained and held in this judgment.

It is hoped and desired that the controversy would be deemed to have been set at rest and
not even seemingly disrespestful and unguarded remarks would be made in regard to the
case of Mst. Walayat Khatun one way or the other ; and the judgments in Sohara v.
Rashid Ahmad and others and in Muham nad Siddiq v. Muhammad Ibrahim as also any
other case in that line, would have to be read and construed accordingly ; though some of
the views expressed therein might have otherwise been, upheld in this judgment. The
treatment of the subject in any manner other than with respect is thus not approved.

With the foregoing remarks and the discussion on various controversial questions and
their ansNers vis-a-vis the difference of opinion amongst the High Courts of the Sub-
Continent and while interpreting and adopting the view expressed in the cases of
h1uhammad Nawaz Khan and Shah Nawaz as explained and held in this judgment, these
appeals are allowed with the remand of both the cases as directed in the short orders
already. passed. They read as follows :

"Civil Appeal No. 1174 of 1978

For the reasons to be recorded later the appeal is allowed and the case is remanded to the
first appellate Court for re-decision of the appellants' paying the court-fee in accordance
with the then amended law, within six weeks from today. There shall be no order as to
costs.

Civil Appeal No. 136 of 1979

For the seasons to be recorded later the appeal is allowed and the case remanded the first
appellate Court for re-hearing the appellant's appeal without being influenced by the
observation made by the High Court, but subject to the appellant paying the deficiency in
the court-fees paid by him for the first appeal (this sum as agreed by both the learned
counsel is Rs. 171 within six weeks from today.

There shall be no order as to costs. Appeal accepted. Case remanded.

Page No. 33 of 33
P L D 1984 Supreme Court 157

Present : Muhammad Haleem, Actg. C. J., Aslam Riaz Hussain, Muhammad Afzal
Zullah and M. S. H. Quraishi, JJ

SHAHNA KHAN-Appellant

versus

AULIA KHAN AND OTHERS-Respondents

Civil Appeal No. 184 of 1980, decided on 21st November, 1983.

(On appeal from the judgment of Lahore High Court dated 2nd June, 1980 in R. F. A. No.
81 of 1980).

(a) Constitution of Pakistan (1973)--

Art. 185(3)-Civil Procedure Code (V of 1908), S. 149, O. VII, rr. 11 & 1-Punjab Pre-
emption Act (I of 1913), Ss. 4, 21 & 30-Court Fees Act (VII of 1870), Ss. 6, 9, 10, 12 &
28-Pre-emption suit Court-fees - Limitation - Leave to appeal granted to ascertain
correctness of approach of High Court arming dismissal of preemption suit as time-barred
on two main considerations : (1) Failure of plaintiff to ascertain correct amount of net
profits within period of limitation, and (2) sup,)ly of requisite court-fee (alongwith
application made in that behalf) about a month after institution of suit.
Link

(b) Punjab Pre-emption Act (I of 1913)

-- Ss. 4, 21, 27 & 30-Court Fees Act (VII of 1870), Ss. 9 & 10-Limitation Act (IX of
1908), Arts. 10 & 120-Suit barred by limitation on account of supply of deficit court-fee-
Plaintiff not required to obtain statement of net profits before filing suit for pre-emption
-Failure of plaintiff to obtain statement of net profits will operate against him when
considering question of entertaining court-fee, if same was supplied after institution of
suit on, (or even without) objection from defendant or Court-Right of pre-emption
established-Court cannot refuse such right in exercise of discretion-Piaintiff cannot be
deprived of his right for mere lapse of time unless there had been abandonment,
acquiescence or waiver or at least, an alteration in position of defendant in that other
party has been put in a situation in which it would not be reasonable to place him, if
remedy were afterwards to be asserted-Mere fact that plaintiff waited till last day of
limitation would not disentitle him to any relief, discretionary or otherwise simply
because plaintiff availed of full period of limitation.
Link

Mst. Walayat Khatun v. Khalil Khan and another P L D 1979 S C 821; Ghulam Nabi and
others v. Seth Muhammad Yaqub and others P L D 1983 S C 344 and Fateh Muhammad
v. Abdul Ghani and another P L D 1981 S C 371 ref.

(c) Punjab Pre-emption Act (I of 1913)

-- Ss. 4, 21, 27 & 30-Relevant net profits of land wrongly assessed or not assessed at all,
or if assessed statement not made available to plaintiff within period of limitation or even
if plaintiff obtained statement same appeared to be tainted with overwriting or forgery
and plaintiff not taking any risk and not filing-Held, law of limitation or for that matter
pre-emption, did not in any way provide that if and when plaintiff files a suit without
statement of net profits, same shall be deemed that plaintiff acted illegally or dishonestly.
Link

(d) Court Fees Act (VII of 1870)

-- Ss. 6, 1001), 12(ii) & 28-Limitation Act (IX of 1908), S. 3-Section 6, Court Fees Act,
1870) could not be read in isolation or independently of those provisions of Court Fees

Page No. 1 of 7
Act, 1870 which relate to ascertaining proper court-fee-Certain amount of court-fee, if
and when adjudged, as proper fee as was visualised by S. 6, Court Fees Act, 1870 result
would follow as provided in Ss. 10(ii), 12(ii) & 28 of Court Fees Act, 1870 and not as
provided in S. 3, Limitation Act, 1908 Validity mentioned in Ss. 10(ii), 12(ii) & 28, Court
Fees Act, 1870 was vis-a-vis fiscal requirement (and consequences) as a measure of .
prosecution of lis and not regarding physical institution of a document by act of
presentation --Question of limitation arises if after determining "proper" court-fee
document was returned and time was allowed for fresh presentation of same (after supply,
of deficiency) and same was not refiled within specific period.
Link

(e) Practice and procedure

-- Precedent-Supreme Court-Judgment of two Judges of Supreme Court, each of them

writing separate judgment-Common features in two judgments on basis of which petition
for leave to appeal filed by plaintiff pre-emptor was dismissed-Held, whether each
observation. by one Judge' was agreed to by other, was, however, a different matter-
Nevertheless common ratio discoverable therefrom would have to be read in accoruance
with normal rule of practice, as subject to law laid down by Supreme Court on same
question in an earlier judgment unless of course it was intended to be departed from-
None of two judgments containing any conscious departure from what was laid down by
Supreme Court in earlier cases-Dissent from or change of a previous view held by
Supreme Court, is not lightly, or as a matter of course, assumed-Each case coming before
Supreme Court will have to be decided on its own facts and circumstances-[Supreme
Court-Precedent].
Link

Mst. Walayat Khatun v. Khalil Khan and another P L D 1979 S C 821 and Muhammad
Nawaz Khan and another v. Makhdoom Syed Ghulam Mujtaba Shah and another P L D
1970 S C 37 ref. 1,

(f) Punjab Pre-emption Act (I of 1913)

Ss. 4, 21 & 30-Court Fees Act (VII of 1870), Ss. 9 & 10-Limitation Act (IX of 1908),
Arts: 10 & 120-Civil Procedure Code (V of 1908), S. 149-Plaintiff making application for
supply of relevant statement of net profits on day he filed suit with understanding therein
that as and where proper court-fees is determined plaintiff would pay same ; together
with his application on receipt of said statement, for submission of proper court-fees
worked out on basis thereof-Challan for purchase of court-fee stamps submitted with
such application was for proper - court-fees and accordingly amount was deposited-Held,
it was an amply fit case for allowing request of plaintiff made (amongst other provisions)
under S. 1.49, C. P. C.-Failure to exercise discretion in favour of plaintiff in such case
was on account of misunderstanding of legal question of limitation and liable to be
corrected by High Court-High Court having not corrected question of limitation, Supreme
Court allowed appeal, set aside judgment and decree and allowed application of plaintiff
seeking permission to pay court-fees and simultaneously producing challans of deposit of
court fees with necessary consequences that suit as instituted would in law be deemed to
have been filed with proper fee-Case and record remitted to trial Court for determination
on merits.
Link

(g) Punjab Pre-emption Act (I of 1913)

Ss. 4, 21 & 30-Court Fees Act (VII of 1870), Ss. 6, 9, 10, 11, 12 & 28-Civil Procedure
Code (V of 1908), S. 149 -Payment of court-fees in pre-emption suit on determination of
value of subject-matter in that behalf through (prevalent) practice of calculation on basis
of annual net profits, held, has led to unfortunate long delays, unnecessary expense and
unnecessary litigation on hypertechnical issues-Attempts also made to misuse law and
practice in order to obtain undue advantage-Amendment in relevant law suggested.

The experience so far gained regarding the payment of court-fee in preemption suits on
determination of the value of the subject-matter in that behalf through the prevalent

Page No. 2 of 7
practice of calculation on the basis of the annual net profits, has led to unfortunate long
delays, unnecessary expense as also unnecessary litigation on hypertechnical issues.
Sometimes attempts are made to misuse the law and practice in order to obtain undue
advantage. It is appropriate that the concerned agency should examine the feasibility of
amending the law regarding court-fee in pre-emption cases (at whatever limit of valuation
it is decided to levy) on the basis of the sale price asserted by the vendee as paid by him.
On account of devaluation and widespread inflation the value of immovable property has
increased many times. If a pre-emptor is ready to pay the price paid by the vendee or
whatever is determined by the Court, as the price payable by him, he should be ready to
pay the court-fee accordingly (if, of course, on principle the court-fee is made leviable as
the limit of the value concerned). In cases where ultimately the amount of court-fee
determined by Court as payable, on a claim to be presented by the plaintiff, is found to be
less than what was originaily paid by him at the time of the filing of the suit, the excess
amount could be refunded in accordaace with law. The principle and procedure for refund
of income-tax paid in excess of the due amount can, with advantage mutatis mutandis be
adopted in this behalf also:
Link

Bashir Ahmad Ansari, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record
for Appellant.

Maulvi Sirajul Haq, Senior Advocate Supreme Court and Muhammad Afzal Siddiyue,
Advocate-on-Record for Respondents.

Date of hearing : 21st November 1983.

JUDGMENT

MUHAMMAD AFZAL ZULLAH, J. -This appeal through special leave of this Court is
directed against judgment dated 2-6-1980 of the Lahore High Court ; whereby a Regular
First Appeal of a plaintiff arising out of a pre-emption suit, was dismissed ; on the
affirmation of findings by the trial Court that the suit was barred by limitation, on account
of late supply of the deficient court-fee.

The facts noted for grant of leave to appeal are that the appellant filed pre-emption suit on
8-3-1970 without paying any court-fee, on a statement that the relevant net profits of the
land . were less than 25,000 and thus below the exemption limit. He however when filing
the suit undertook to . pay the requisite court-fee "if the net profits were found to be more
than 25,000". After ascertaining the annual net profits the appellant submitted an
application on 4-4-1979 to the trial Court seeking permission to pay the court-fee of Rs.
4,149 and simultaneously produced challans of deposit of court-fee stamps worth Rs.
4,150. No order of rejection on this application was passed by the learned trial Judge till
an objection was raised from the vendee-respondent side in the written statement that the
suit was barred by time. On this the learned trial Judge framed an issue ; whether the suit
was within time, and, after hearing the parties held that the plaintiff had full one year of
limitation to make preparation for filing the suit and by the time he obtained the
statement of net profits the suit had already become time-barred. Therefore, the
subsequent payment of the court-fee on 4-4-1979 or for that matter the submission of the
application for permission to supply the court-fee. are of no avail to the plaintiff. It was
also held that the plaint shall be deemed to have been filed only on the.day when the
deficiency in the court-fee was supplied i.e. on 4-4-1979. And because it was nearly a
month after the expiry of the period of limitation, therefore, the suit was barred by time.
Accordingly basing his judgment on two main considerations : one, the failure of the
plaintiff to ascertain the correct amount of net profits within the period of limitation and
second, the supply of the requisite court-fee (alongwith an application made in that
behalf) about a month after the institution of the suit, had rendered the same as time-
barred. Reliance in this behalf was placed on Mst. Walayat Khatun v. Khalil Khan and
another (PLD1979SC821). It was accordingly dismissed.

A learned Single Judge in the High Court on first appeal examined the same
circumstances in more detail and relying on the case of Mst. Walayat Khatun dismissed

Page No. 3 of 7
the plaintiff's appeal. Leave to appeal was granted to consider the correctness of the
approach of the trial Court and of the learned Single Judge in the High Court,

Learned counsel for the appellant addressed lengthy arguments on various aspects of the
questions of court-fee and limitation. Reference was made to Order VII, rule 11 and
section 149, C. P. C. as also to sections 6, 9, 10, 12 and 28 of the Court Fees Act (VII of
1870), together with section 3 and other related provisions of the Limitation Act.

It is not necessary to examine all these provisions in any detail as, spread in several
decisions by this Court, all the questions seem to have already been resolved.

It has been held by this Court in a very recent judgment Ghulam Nabi and others v. Seth
Muhammad Yaqub and others (PLD1983SC344), that the ordinary rule regarding
limitation is that a party cannot be non-suited for mere ]aches when the period of
limitation is yet to expire. Several judgments were cited wherein it was held that in no
case does mere lapse of time deprive) the plaintiff of his right to specific performance,
unless it be held that there has been abandonment, acquiescence or waiver, or at least, an
alteration in the position of the defendant in that the other party has been put in a
situation in which it would not be reasonable to place him, if the remedy) were afterwards
to be asserted. It may be remarked that these judgments were rendered in cases of specific
performance where the grant of relief in favour of the plaintiff was discretionary.
Notwithstanding the same, exercise of discretion in his favour, was not refused merely
because he consumed the full period of limitation allowed to him. In cases of pre-emption
there is no question of the same being a discretionary relief. If the right is established, the
Court cannot refuse the same in exercise of its discretion. Hence the rule stated above
will apply with comparatively more stress. The mere fact that in this case the plaintiff
waited till the last day of th limitation would not thus disentitle him to any relief
discretionary o otherwise simply because be availed of the full period of limitation.

It is nowhere required of a plaintiff by any law, at least none has been cited, that before
filing a suit for pre-emption he must obtain the statement of net profits and further that if
he fails to do so, this necessarily will operate against him when considering the question
of entertaining th court-fee, if it is supplied after the institution of the suit, on (or even
without) an objection from the defendant or Court. An example here would illustrate the
point. Supposing the relevant net profits of the land are wrongly assessed or not assessed
at all, or if assessed the statement is not made available to the plaintiff within the period
of limitation, or even if he obtains the statement it appears to him to be tainted with
overwriting or forgery and he does not want to take any risk and it is not filed. Here the
law of limitation or for that matter pre-emption does not in any way provide that if and
when the plaintiff files a suit without the statement of net profits it shall be deemed that
he was acting illegally or dishonestly.

It is not necessary to go into the requirements of sections 9 and 10 of the Court Fees Act.
They were examined in another judgment of this Court, namely, Fateh Muhammad v.
Abdul Ghani and another (PLD 1981 SC 371), and it was held that if the material is
sufficient on record to make it possible for the trial Court to render a confident decision
on the question of the amount .of court-fee it might not be necessary, in the circumstances
of a particular case, then to launch an independent investigation in this behalf. Amongst
others, the statement of account of net profits was considered as a material which could
be looked into, but it was not laid down as a law that without obtaining and filing such
statement within the period of limitation the suit for pre-emption would become time-
barred.

As to the question whether for non-payment of required court-fee within the period of
limitation a suit could be dismissed as time-barred, it was considered in another recent
judgment of this Court in Mst. Perveen v. Mst. Jamsheda Begum and another (P L S 1983
SC 227). The following observations are relevant in this behalf :

"The learned trial Judge was fully competent to grant time under section 149, C. P. C. to
the plaintiffs for supplying the court-fee. Once having done so and the respondents
having complied with the order passed under section 149, C. P. C. the plaint, it is
provided in the said section, shall be deemed to have the same force and effect as if such

Page No. 4 of 7
fee had been paid in the first instance. Thus the question of the bar of limitation would
not at all arise. The argument of the learned counsel thus has no force. It may also be
observed that the learned trial Judge could not have rejected the plaint under Order VII,
rule 11, C. P. C. on the mere discovery that the claim was under valued, unless under
clause (b) of rule 11, the plaintiffs having been required by the Court to correct the
valuation within a time specified by the Court, had failed to do so. Similarly regarding
insufficiency of court-fee, the plaint could be rejected under clause (e) of rule 11, if the
plaintiffs, on being required by the Court to supply the requisite stamp-paper within a
time to be fixed by the Court, failed to do so. In both these eventualities, the plaint could
have been rejected under Order VII, rule 11, C. P. C. and it would not have been proper,
without recourse to this provision, to dismiss the suit as time-barred. It could not be said
that if the suit was within time on the day the plaint was duly presented, it became
time,barred simply because the plaint could be rejected under clause (b) or (c) or for that
matter clause (a) or (d) of rule 11 (after the period of limitation) for the reasons
mentioned in the said clauses ; the suit could not be dismissed on the ground of limitation
merely because the plaint when originally otherwise duly presented in a Court, was not
correctly stamped. Section 3 of the Limitation Act, whereunder a suit can be dismissed,
applies only if it is instituted after the period of limitation. It is not the case of the
appellant that as visualised by the explanation to section 3 of the Limitation Act, the
plaint was presented not to the proper Officer, or after the expiry of limitation. And if it
was presented properly before a proper Officer prior to the expiry of period of limitation
then the relevant provision for consideration would be Order VII, rule 11, section 149,
and in some cases section 148, C. P. C. ; as also, section 10(ii) of the Court Fees Act,
whereunder a suit can be dismissed for non-compliance with the order of the Court for
supply of the requisite fee and not on the ground that for the same reasons it had become
time-barred. The two considerations would be totally different."

Learned counsel for the respondents, however, pointed out that the provisions contained
in section 6 of the Court Fees Act which required that no document's specified therein
shall be filed, exhibited or recorded in any Court of justice unless in respect of such
document there be paid the proper court-fee, was not noticed in the case of Mst. Perveen.
Learned counsel could not deny that this provision could not be read in isolation or
independently of those provisions of Court Fees Ac which relate to the ascertaining of the
proper court-fee and that if and when a certain amount of court-fee is adjudged as "proper
fee" as is visualized by section 6, the results would follow as provided in section 10(ii),
section 12(ii) and section 28 and not as provided in section 38 of the; Limitation Act. The
validity, mentioned in those provisions vis-a-vis the fiscal requirement (and
consequences) as a measure of prosecution of the: lis and not regarding the physical
institution of a document by the act o presentation. It would, however, be a different
matter if after determinine the "proper" court-fee the document is returned and time is
allowed for fresh presentation of the same (after supplying the deficiency) and the same
is not re-filed within the specified period-question of limitation might then arise. But that
aspect of limitation is not relevant in the presen context. .

It is the case of both the learned counsel that in addition to Shah Nawaz and 6 others v.
Muhammad Yousuf and 3 others (1972S CMR 179), the question of exercise of power
under Order VII, rule 11 (c) and under section 149, C. P. C., prior to the judgment in the
case of Mst. Walayat Khatun, was by and large governed by the rule laid down by this
Court in Muhammad Nawaz Khan and another v. Mukhdoom Syed Ghulam Mujtaba
Shah and another (PLD1970SC37). The contention involved and rule laid is reproduced
below:

"According to the learned counsel only those cases fall under clause (c) (of rule 11 of
Order VII, C. P. C.) in which the relief claimed is correctly valued in the first instance. In
other words if the relief claimed is under-valued and as would necessarily happen in
every case the plaint is written on a paper insufficiently stamped then neither clause (a)
nor clause (b) would be attracted and the case will fall within the ambit of section 149
under which the. Court has the discretion to refuse an opportunity to supply the requisite
stamp paper.

We .are unable to accept the interpretation placed by the learned counsel on the
provisions of section 149 and Order VII, r. 11, C. P. C. There is not a single precedent

Page No. 5 of 7
case which supports this view while the contrary view is supported by the Full Bench
decision of the Lahore High Court repgrted in Jagat Ram v. Misar Kharaiti Ram and
another A I R 1938 Lah. 361 and a number of other judgments delivered by various High
Courts in the sub-continent including a judgment of the Peshawar Bench of the High
Court of West Pakistan.

Apart from these weighty judgments 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 snaking up
deficiency in the stamp paper affixed on the plaint, but time should automatically be
enlarged in cases in which the Court has the discretion to grant time to pay the whole or
part of the court-fee prescribed. 7 his will offend against the rule of harmonious
construction. The provisions of O. VII, rule 11 and section 149 are, therefore, to be read
together. Consequently where the plaintiff is 'required to correct the valuation of the relief
claimed in the suit, he shall further be required to supply the requisite stamp paper and on
compliance it shall have the same force and effect as if such fee had been paid in the first
instance." (It was followed in the case of Shah Nawaz).

It needs to be mentioned that it was a pre-emption suit out of which the case of
Muhammad Nawaz Khan and another had come before the Supreme Court and the
ultimate decision regarding payment of court-fee and the question of limitation went in
favour of the pre-emptor and against the vendee.

Some arguments were addressed with regard to the interpretation of the judgment of this
Court in the case of Mst. Walayat Khatun. It cannot be denied that it was a judgment of
the learned Judges of this Court and each of them wrote a separate judgment. There are
common features in the two, judgments on the basis of which the petition for leave to
appeal filed by a plaintiff pre-emptor was dismissed. It is a different matter, however,
whether .each observation by one learned Judge was agreed to by the other. Nevertheless
the common ratio discoverable, therefrom would have to be read in accordance with the
normal rule of practice, as subject to the law laid down by this Court on the same
question in an earlier judgment, unless of course it was intended to be departed from. In
none of the two judgments in Mst. Walayat Khatun's case there was any conscious
departure from what was laid down by this Court and quoted earlier, from the case of
Muhammad Nawaz Khan and another. Otherwise .too it is agreed that the dissent from of
change of a previous view held by this Court, is not lightly, or as a matter of course,
assumed.

Keeping in view the foregoing legal position, it goes without saying 'bat each case
coming before the Court will have to be decided on its own facts and circumstances. In
the present case we are satisfied that the appellant made an application for the supply of
the relevant statement of net profits on the day that he filed the suit with an undertaking
therein that as and when the proper court-fee is determined he would pay the same;
together with his application on the receipt of the said statement, for submission of the
proper court fee worked out on the basis thereof. The challan for purchase of the court-
fee stamps submitted with the application was for the proper court-fee and accordingly
the amount was deposited. Unless the technical approach of the learned trial Court and
with respect of the learned Single Judge in the High Court regarding the question of
limitation, which as already observed was not strictly in accordance with the law, is
followed, it was an amply fit case for, allowing the request of the plaintiff made (amongst
other provisions) under section 149, C. P. C. Failure to exercise discretion in his favour in
this case was on account of misunderstanding of the legal question regarding limitation. It
was liable to be corrected by the High Court. The same not having been done we allow
this appeal, set aside the impugned judgments and decree and allow the plaintiff's
application dated 4-4-1979 regarding supply of the court-fees with the necessary
consequence that the suit as instituted on 8-3-1979 would in law be deemed to have been
filed with 'proper fee ; with the result that the case and records thereof shall now be
remitted to the learned trial Court for determination on merits.

Before parting with this judgment it needs to be observed that the expert. once so far
gained regarding the payment of court-fees in pre-emption suits on determination of the
value of the subject-matter in that behalf through the prevalent practice of calculation on

Page No. 6 of 7
the basis of the annual net profits, had led to unfortunate long delays, unnecessary
expense as also unnecessary litigation on hypertechnical issues. Sometimes attempts are
made to misuse the law and practice in order to obtain undue advantage. It is appropriate
that the concerned agency should examine the feasibility of amending the law regarding
court-fees in pre-emption cases (at whatever limit of valuation it is decided to levy) on
the basis of the sale price asserted by the vendee as paid by him. On account of
devaluation and widespread inflation the value of immovable property has increased
many times. If a pre-emptor is ready to pay the price paid by the vendees or whatever is
determined by the Court, as the price payable by him, he should be ready to pay the
court-fee accordingly (if of course, on principle the court-fee is made leviable at the limit
of the value concerned). In cases where ultimately the amount of court-fee determined by
Court as payable, on a claim to be presented by the plaintiff, is found to be less than what
was originally paid by him at the time of the filing of the suit, the excess amount could be
refunded in accordance with law. The principle and procedure for refund of income-tax
paid in excess of the due amount can, with advantage mutatis mutandis, be adopted in
this behalf also.

M. Z. M. Appeal allowed.

Page No. 7 of 7
1982 S C M R 753

Present : Karam Elahee Chauhan and M. S. H. Qureshi, JJ

KHURSHID-Petitioner

versus

GHULAM MUHAMMAD AND ANOTHER-Respondents

Civil Petition No. 367 of 1981, decided on 29th August, 1981.

(Against the judgment and order of the Lahore High Court, Lahore, dated 2$-2-1981 in
Writ Petition No. 3416 of 1980).

Constitution of Pakistan (1973)-

-- Arts. 185(3) & 199 and Court Fees Act (VII of 1870), S. 28-Court-
fee-Deficiency-Member, Board of Revenue non-suiting respondent for not having made
up deficiency in Court-fee for six years-High Court however, holding decision to be of no
legal effect due to question of late payment having not been taken in suit or memo. of
appeal Whether High Court in its constitutional jurisdiction could interfere with order of
Member Board of Revenue on such grounds-Leave to appeal granted to consider
question.-[Court-fee-Leave to appeal].

Jari Ullah Khan, Advocate Supreme Court with Sh. Abdul Karim, Advocate-on-Record
for Petitioner.

Malik Talib Hussain Awan, Advocate Supreme Court with Salahuddin,

Advocate-on-Record for Respondents Nos. 1 and 2.

ORDER

M. S. H. QURESHI, J.-In this case respondents 1 and 2 had affixed court-fee of Rs. 2.00
only on their plaint when they instituted the pre-emption suit on 17-7-1974. They did not
make up the deficiency within the time allowed by the Court. They made it up on
19-1-1979, just a few days before the decree was passed. The appellate Court took notice
of it and remanded the matter to the trial Court for a fresh decision. In revision, the
learned Member, Board of Revenue, on-suited them on account of their not having made
up the deficiency in the Court-fee for six years. The High Court, however, held the
decision to be unlawful and of no legal effect on the view that the question of late
payment of the Court-fee, which had not been taken in the suit or the memorandum of
appeal, could not be imported belatedly. Leave is granted to consider whether the High
Court in its constitutional jurisdiction could have interfered with the order of the
Member, Board of Revenue. Security Rs. 2.000.00 (Rupees two thousand only).

2. Mailk Talib Hussain Awan, Advocate, accepts notice on behalf of respondents Nos. 1
and 2.

3. Pending the disposal of the appeal, the proceedings before the trial Court shall be
stayed.

Page No. 1 of 1
1980 S C M R 672

Before: Karam Elahee Chauhan and Nasim Hasan Shah, JJ

FAZAL AHMAD AND OTHERS-Petitioners

Versus

MASOOD AKHTAR SHAH ETC.-Respondents

Civil Petitions for Special Leave to Appeal Nos. 496, 497, 498 and 499 of 1979, decided
on 6th February, 1980.

(On appeal from the judgments and orders of the Lahore High Court, dated 13-3-1979, in
F. A. O. Nos. 71/76, 72/76, 73/76 and 74/76).

Court Fees Act (VIII of 1870)-

-- S. 28-Court-fee-Deficiency-Point of deficiency of court-fee once taken up by

Court-Court, held, possesses jurisdiction to deal with such matter in accordance with law
on subject.

C. M. Latif Rawn, Advocate Supreme Court and Muhammad Aslam,

Advocate-on-Record for Petitioners (in all Petitions).

Syed Afzal Haider, Advocate Supreme Court and M. A. Qadri, Advocate-on-Record for
Respondents.

Date of hearing : 6th February, 1980.

ORDER

KARAM ELAHEE CHAUHAN, J.-This order will dispose of four petitions bearing
No. C. P. S. L. A. Nos. 496/79, 497/79, 498/79 and 499/79,

2. The facts of these cases are few and simple. The petitioners filed four suits to pre-empt
the sales mentioned therein. Their plaints were rejected under Order VII, rule 11, C. P. C.
on the ground that they had not made good the requisite deficiency of court-fee, despite
the opportunity having been given to them to do the needful. The petitioners filed
appeals, which were accepted by the learned District Judge by order dated 14th
November, 1975, whereby he remanded the cases to the learned trial Court to make
investigation regarding valuation for the purposes of court-fees and then proceed with the
matter in accordance with the law afresh.

The vendees filed four appeals in the High Court, which were accepted on 13th March,
1979. The High Court modified the order of the learned District Judge and issued a
direction to the learned trial Court to enquire whether the plaintiffs had acted with due
diligence and in good faith in fixing the valuation at 15 times of the annual net profits. It
was further directed that it should be found out whether the petitioners had moved the
revenue authorities concerned for obtaining the proper excerpts in time etc. for the
purpose of fixing the annual net profits of the land. A further direction issued was to see
whether the plaintiffs/ petitioners were negligent in all these matters. It was indicated that
after attending to all these aspects the Court would be competent to proceed under Order
VII, rule II if the facts so warranted.

4. The petitioners have come up in petitions for special leave to appeal against the
aforesaid orders of the High Court.

5. We have heard the learned counsel at length but he could not satisfy us as to what was
the legal error in the orders of the High Court. Learned counsel tried to argue that the
order for depositing the court-fees at such a late stage of the case where it stood at the
relevant time could not have been passed. The contention has no merit. Once the point of

Page No. 1 of 2
deficiency of the court-fees had been taken up by the Court it had every jurisdiction to
deal with the same in accordance with law on the subject. Learned counsel should have
rather availed of the opportunity which had been given by the High Court to make out a
case for condonation of delay or extension of time in the payment of court-fees instead of
making grievances about it in the form of these petitions. The orders of the High Court
are in accordance with law, and even otherwise quite just and fair inasmuch they purport
to safeguard rights of both the contesting parties and leave ample scope for them to
present and prove their respective pleas on the subject.

6. In our opinion this is not a fit case for grant of leave. The petitions are dismissed.

Petitions dismissed.

Page No. 2 of 2
P L D 1979 Supreme Court 821

Present : Muhammad Akram and Karam Elahee Chauhan, JJ

Mst. WALAYAT KHATUN-Petitioner

versus

KHALIL KHAN AND ANOTHER-Respondents

Civil Petition No. 227 of 1978, decided on 1st June, 1978.

(On appeal from the judgment and order of the Lahore High Court, Lahore, dated
19-2-1978 in R. S. A. No. 46/ 1978).

Per Muhammad Akram and Karam Elahee Chauhan, JJ.

(a) Civil Procedure Code (V of 1908)

----O. VII, r. 11 & Ss. 148 &149 read with Court Fees Act (VII of 1870),
S.28-Court-fee-Deficiency, making up of-Plaint filed in Court deliberately with an
inadequate court-fee of Re- 2 only Court allowing extension in time to make up
deficiency by a particular date but plaintiff failing to comply with order within time for
any valid reason to satisfaction of trial Court-Deficiency however made up about 25 days
after time allowed by Court-Trial Court, held, justified in rejecting plaint in exercise of its
discretion.-[Court-fee Plaint].

Per Karam Elahee Chauhan, J.

(b) Civil Procedure Code (V of 1908)

--- O. VII, r. 11 & S. 149 read with Court Fees Act (VII of 1870), S. 28 and Limitation
Act (IX of 1908), S. 3-Court-fee-Deficiency, making up of-Proper court-fee paid after
expiry of period of limitation but within time extended by Court-Defect stands cured with
retrospective effect-Such provision of law though helping suitors yet their indiscriminate
and reckless exercise may destroy a plea of limitation available to defendants-Court thus
to strike a balance between two and apply its independent mind carefully and attend to
detailed facts and circumstances judicially and fairly Plaintiff thoroughly negligent,
contumacious, and careless of his duty in affixing proper court-fee-Held : Not entitled to
any indulgence for grant of time having effect of causing prejudice to defendant whose
title may have become perfect by expiry of period of limitation. [Court-fee-Limitation].

Hansraj Gupta and others v. Dehra Dun-Mussoorie Electric Tramway

Co. Ltd. A I R 1933 P C 63 ref.

(c) Court Fees Act (VII of 1870)-

-----S.28 read with Limitation Act (IX of 1908), S. 5---Condonation of

delay-Mistake-Inadvertence-Negligence-Carelessness-Want of bona ides-Examples
of.-[Words and phrases--Condonation of delay.

(d) Limitation Act (IX of 1908)-

S. 5-Condonation of delay-Plaintiff guilty of contumacy, positive mala fides or lack of

bona fides-Held, not entitled for any indulgence- Nor poverty or ignorance any excuse.
[Condonation of delay].

(e) Civil Procedure Code (V of 1908)-

- O. VII, r. 11-Deficiency in court-fee-Making up of-Grant of time for-Court, held, not

bound to first grant time to plaintiff to make up deficiency in court-fees.-[Court-fee].

Page No. 1 of 5
(f) Civil Procedure Code (V of 1908)-

Ss. 148 & 149 & O. VII, r. 11-Deficiency in court-fees-Making up of-When to be allowed
and when not.--[Court-fee].

Suits or plaints can be divided into two categories. One category is where the plaint is
filed well in time, and there is still some period of limitation left in favour of the plaintiff.
In such a suit the Court is obliged and bound to grant time under Order VII, rule 11(c), C.
P. C. and the time granted itself should also be within the meaning period of limitation.
This is a stage when the matter is solely between a subject and the State. However, if
despite grant of such an opportunity the needful is not done the Court shall reject the
plaint. The second category is that where on the date of grant of time the suit has already
become time-barred, or where though the time was granted on a date when suit was
within limitation but it was granted or extended up to a date by which the suit will
become time-barred. However the matter is not confined solely between a subject and the
State because in such a situation a third person namely defendant has also in the
meantime due to running out of the period of limitation in his favour acquired a vested
right. These cases are distinguishable from the first category and are a class by
themselves. These ace to be regulated by sections 148 and 149 of the C. P. C. which as is
obvious authorise the Court to destroy the defence of limitation which may have become
available to a defendant in the meantime. It is this category of cases in which a Court is
not bound or obliged to grant time nor is it to be granted just in routine or mechanically
but by keeping in view the considerations above mentioned.

(g) Civil Procedure Code (V of 1908)-

----O. VII, r. 11-Court-fee, deficiency in-Making up of---Suit filed a day or two before
expiry of period of limitation by a ridiculously low court-fee of Rs. 2---Trial Court next
day directing plaintiff by means of ex parte order to make good deficiency in court-fee by
a particular date, such date falling beyond period of limitation-Order granting time to
make up deficiency, held, could not in circumstances be passed without notice, to
defendant and order passed without such notice liable to be taken exception to by
defendant.-[Notice-Court-fee].

S. M. Rashid, Advocate Supreme Court instructed by Sh. Abdul Karim,

Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing : 1st June, 1978.

JUDGMENT

MUHAMMAD AKRAM, J.-Mst. Walayat Khatun petitioner/plaintiff on 9-2-1976 filed

a suit for possession by pre-emption of agricultural land measuring 14 kanals 9 marlas
situated in village Gulmeri, Tehsil and District Mianwali ostensibly sold for Rs. 12,000
vide registered sale-deed dated 11-2-1975. It is not necessary to narrate all the facts in
detail for the purpose of the present order. It will be sufficient to mention. here that the
plaint was stamped with a court-fee of Rs. 2 only and it was stated therein that the
deficiency in the court fee shall be made good after ascertaining the net annual profits for
the land after having obtained the ford jhar pedawar for it. In these circumstances while
entertaining the plaint, in the absence of defendant, the Court on 10-2-1976 directed the
plaintiff to make good the deficiency in court-fee before 18-3-1976. In spite of this the
deficiency in the court-fee was not made good until on 12-4-1976, 24 days after the
extended time allowed by the Court. Therefore, the defendant raised the objection that the
plaint was not properly stamped and that there was neither any sufficient ground for the
grant of time to the plaintiff to make up the deficiency in the court-fee nor the deficiency
in the court-fee was paid within the time allowed by the Court and as such there was no
sufficient ground for condonation of the delay committed by the plaintiff to make up the
deficiency in court-fee. In these circumstances the learned Civil Judge accepted the
objection and dismissed the suit/rejected the plaint under Order VII, rule 11, C. P. C. on

Page No. 2 of 5
6-7-1977. The plaintiff/petitioner filed an appeal but without any success and the same
was dismissed by the learned Additional District Judge, Mianwali, on the 5th December,
1977. The plaintiff/petitioner then filed a second appeal in the Lahore High Court, (R. S.
A. No. 46 of 1978) which was dismissed by a learned Single Judge of that Court on
19-2-1977. The petitioner has now come up to this Court in this petition for special leave
to appeal.

In this connection the learned counsel has argued that the three Courts have erred in their
failure in extending the time to the plaintiff to make up the deficiency in court-fee on the
plaint. His submission is that the plaint was filed with a deficient court-fee because the
plaintiff did not have with her the fard jhar pedawar (statement of net annual profits) for
the land in suit prepared in time. This was prepared for her later on and in the
circumstances of the case there was sufficient cause for extension of the period of
limitation for the payment of the court-fee. As such the three Courts ought to have
allowed further time to the plaintiff to make up the deficiency.

We find that the fard jhar pedawar (statement of net profits) was got prepared by the
petitioner privately from the Patwari and that a move in that direction was made by her
only after the institution of the suit. In this connection section 28 of the Court-Fees Act
VII of 1870 lays down that "no document which ought to bear a stamp under this Act
shall be of any validity unless and until it is properly stamped". At the same time, under
sections 148 and 149 of the C. P. C. (Act V of 1908) the Court has the discretion to allow
and extend the time in order to make up the deficiency in court-fee for good and
sufficient reasons.

In the instant case, to begin with, the plaint had been filed in Court deliberately with an
inadequate court-fee of Rs. 2 only on it. On 10-2-1976 the Court, however, allowed the
extension in time to the plaintiff to make up the deficiency in the court-fee on or before
18-3-1976 in accordant with rule 11 of Order VII of the Code of Civil Procedure. In spite
of this the plaintiff failed to comply with the order within time for any valid reason to the
satisfaction of the trial Court for pre-emption. In this connection in appeal the learned
lower appellate Court observed that the trial Court had ordered the plaintiff to deposit the
deficiency in the court-fee on or before 18-3-1976 but that it was not made up until on
12-4-1976 and no reason was advanced for this delay on the file. This order was upheld
by the High Court in second appeal as no cogent reason was at all assigned by the
plaintiff on the record for this further delay in depositing the deficiency in the court-fee.

In these circumstances the trial Court was justified in rejecting the plaint in exercise of
the discretion vested in it. Likewise the two appellate Courts had also declined to
interfere with the order for good and sufficient reason.

We also see no force in this petition. It has no merit and is therefore, dismissed.

KARAM ELAHEE CHAUHAN, J.-I agree with my learned brother. However, in view
of the important points involved in this case I would like to add a few words of my own.

2. Section 28 of the Court- Fees Act VII of 1870 is headed as "Stamping documents
inadvertently received", and lays down that "no document which ought to bear a stamp
under this Act shall be of any validity, unless and until it is properly stamped. But, if any
such document is through mistake or inadvertence filed or used in any Court or office
without being properly stamped, the presiding Judge or the head of the office, as the case
may be, or, in the case of a High Court, any Judge of such Court, may, if he thinks fit,
order that such document be stamped as he may direct ; and, on such document being
stamped accordingly, the same and every proceeding relative thereto shall be as valid as
if it had been properly stamped in the first instance." (To the same strain are the
provisions of sections 4 and 6 of that Act). A plaint is a "document" within the meanings
of this section, and therefore, if it is insufficiently stamped, then according to the
aforesaid section, it shall not "be of any validity". This may be read with section 149 of
the C. P. C. (Act V of 1908) which is headed as "power to make up deficiency of
court-fee," and stated that "where the whole or any part of any fee prescribed for any
document by the law for the time being in force relating to court-fees has not been paid,
the Court, may, in its discretion, at any stage, allow the person, by whom such fee is

Page No. 3 of 5
payable, to pay the whole or part, as the case may be, of such court-fee ; and upon such
payment the document, in respect of which such fee is payable, shall have the same force
and effect as if such fee had been paid in the first instance." Reading both these sections
together, it will be evident that if by order of Court, a plaint which was originally
insufficiently stamped, is allowed to be properly stamped then law confers a retrospective
validity on the said plaint. If by the time the proper court-fee on a plaint is paid, it has
already become time barred, that defect will stand cured if the deficiency was being made
good under the order of a Court under the provisions of law relevant on the subject. This
is a great concession shown by law to suitors whose suits otherwise would have become
liable to be dismissed both for want of proper court-fee or for consequently becoming
time barred by the time the deficiency in made good by them. No doubt it is a solitary
provision which purports to save suitors from drastic effects of a fiscal statute, where
emphasis is more on realization of Government revenue than to punish suitors for honest
delinquencies. However, this is only one side of the picture. In section 3 of the Limitation
Act (Act IX of 1908) which deals with "dismissal of suit, etc. instituted, etc, after period
of limitation," it is laid down that "subject to the provisions contained in sections 4 to 25
(inclusive), every suit instituted, appeal preferred, and application made after the period
of limitation prescribed therefore by the First Schedule shall be dismissed although
limitation has not been set up as a defence." The word "suit" as laid down in Hansraj
Gupta and others v. Dehrp Dun Mussoorie Electric Tramway Co. Ltd. (AIR 1933 P C 63)
"ordinarily means, a civil 'proceeding instituted by the presentation of a plaint". To the
same strain is section 26 of the C. P. C. If the position) is therefore examined from that
point of view, it becomes manifest that whereas the provisions of law earlier mentioned
on the one hand help suitors, on the other hand their indiscriminate and reckless exercise
may destroy the plea of limitation available to a defendant. The Court has therefore to
strike a balance between these two, and whereas at one place it should not be harsh on the
plaintiffs, equally and at the same time it should not be harsh on defendants to easily take
away a 'valuable defence of limitation from them. The Court must therefore in all cases
apply its independent mind carefully and attend to their detailed facts and circumstances
judicially and fairly. 1f in a case the plaintiff has been thoroughly negligent,
contumacious and careless of his duty in affixing a proper court-fee he would not be
entitled to any indulgence for grant of time, which has the effect of causing prejudice to a
defendant or to his rights and title to a property which may have become perfect by
expiry of the relevant period of limitation in the meantime. Examples of negligence,
carelessness, want of bona fides etc., may vary from case to case and no hard and fast
rule in this respect can be laid down. However, just to give a few examples which are
merely illustrative and not exhaustive, where for instance, a plaintiff deliberate describes
the suit land as agricultural land assessed to land revenue and stamps it accordingly, in
spite of the fact that the land to his knowledge is urban agricultural land or urban
immovable property situated within the municipal limits subject to property tax under the
West Pakistan Urban Immovable Property Tax. (Act V of 1958) and exempt from land
revenue under section 56(1)(c) of the West Pakistan Land Revenue Act XVII of 1957,
then it will not be a case warranting grant of time so as to destroy the defence of
limitation which in the meantime may have accrued to the defendants and nor will it be a
case of mistake or inadvertence within the meanings of section 28 of the Court-Fees Act.
Similarly where a plaintiff puts ridiculously low court-fee, or where the plaint appears to
have been filed not for any bona fide object of its serious pursuit, but to tease of harass
another or others concerned, then a Court will not be justified t allow time for validating
such a plaint and destroy the plea of limitation which may have been perfected in favour
of a defendant in the meantime sheerly due to no seriousness of the plaintiff or causes of
similar nature. A plaintiff who is guilty of contumacy, positive mala fides, or lack o bona
fides will not be entitled for any indulgence. In this respect similarly F poverty or
ignorance will also be no excuse.

3. The next point to be seen is whether in all cases a Court is first bound to grant time to a
plaintiff to make up the deficiency in the court-fee under Order VII, rule 11(c), C. P. C.,
before proceeding to take any further action on an insufficiently stamped plaint. My
answer is in the negative. And for this purpose I will divide suits or plaints into two
categories. On category is where the plaint is filed well in time, and there is still some G
period of limitation left in favour of the plaintiff. In such a suit the Court is obliged and
bound to grant time under Order VII, rule 11 (c), C. P. C. and the time granted itself
should also be within the meaning period of limitation. This is a stage when the matter is

Page No. 4 of 5
solely between a subject and the State. However, if despite grant of such an opportunity
the needful H is not done the Court shall reject the plaint. The second category is that
where on the date of grant of time the suit has already become time barred, or where
though the time was granted on a date when suit was within limitation but it was granted
or extended upto a date by which the suit will become time barred. However the matter is
not confined solely between a subject and the State because in such a situation a third
person namely defendant has also in the meantime due to running out of the period of
limitation in his favour acquired a vested right: These cases are distinguishable from the
first category and are a class by themselves. These are to be regulated by sections 148 and
149 of the C. P. C. which as is obvious authorise the Court to destroy the defence of
limitation which may have become available to a defendant in the meantime. It is this
category of cases in which a Court is not bound or obliged to grant time and nor is it to be
granted just in routine or mechanically but by keeping in view the considerations above
mentioned. To continue this subject and examining the present case in the light of the
above principles here the sale took place on I1-2-1975. The pre-emption suit was filed a
day or two before the expiry of the period of limitation on 9-2-1976 by a ridiculously low
court-fee of Rs. 2 only. The Court by means of ex parts order on 10-2-1976 directed the
plaintiff to make good the deficiency of court-fee on or by 18-3-1976. Obviously this was
a date by which time the suit would have been time-barred and such an order could not
have been passed without notice to the defendant or if passed without notice to the
defendant he had every right to take exception to the same. However, the plaintiff did not
file the court-fee by the requisite date and later on during the hearing surreptitiously on
12-4-1976 put it in without getting any further extension from the Court and without
making any application under section 149, C. P. C. Later, on objection of the defendant,
the Court rejected the plaint under Order VII, rule 11(c), C. P. C. The appeal filed against
the same was dismissed, and that order was maintained in second appeal by the High
Court who observed that "the appellant not only failed to comply with the order of Court
but went to the extent of deceiving the Court by telling that the deficiency bad not been
made up upto 18-3-1976. The right course was to make an application under section 149
for extension of time giving food reason but instead of doing so, quietly the court-fee
stamps were filed on 12-4-1976. Even after an issue was framed on the point, the
plaintiff/appellant did not care to produce any evidence to show that she was not at fault
and that the Revenue authorities had supplied to her the statement of net profits and jhar
pedawar late. It is, therefore, clear that the default was wilful. A person who comes
forward to exercise a predatory right like the right of pre-emption, he should be very
vigilant at every stage. The Courts below rightly held that without any reasonable cause,
the deficiency in the court-fee was not made up within ,the time allowed by the Court." I
find no fault with the aforesaid order of the High Court. However, I want to add that in
my opinion. even the initial grant of time was subject to question because by it the period
of limitation stood ex parts extended upto 18-3-1976. The Court did not give any reason
as to why that time was being granted ; was there no negligence of the plaintiff ; or was
he not careless. It is to be remembered that in this- case the plaintiff got jhar pedawar
prepared privately after the institution of the suit. If so why, could he not get it prepared
before institution of suit? This shows that the plaintiff was negligent and non-serious
right from the beginning and did not deserve any indulgence by the Court.

S. A. H. Petition dismissed.

Page No. 5 of 5
1974 S C M R 364

Present : Hamoodur Rahman. C. J. and Muhammad Gul, J

HASSAN BAKIISH AND OTHERS-Petitioners

versus

Syed AFZAL SHAH AND Others-- -Respondents-

Civil Petition for Special to Appeal No. 27 of 1973, decided on 3rd October 1973.

(From the judgment and order, dated 20th October 1972, passed by the Lahore High
Court, Lahore, in R. S. A. 354 of 1967). ''

Court Fees Act (VII of 1870)-

-- Ss. 4 & 28 read with Civil Procedure Code (V of 1908), Ss. 149 &
151-Court-fee-Opportunity to make up deficiency-Petitioners failing to make up
deficiency in court-fee although given three opportunities to do so-Valuable right having
in meantime accrued to opposite-party he could not be deprived of such right on account
of petitioner's lack of diligence and care in prosecution of their appeal Petition dismissed.

Ch. Ghulam Mujtaba, Advocate-on-Record for Petitioners.

Abdus Samad Hashmi, Advocate Supreme Court instructed by Sh. Abdul Karim,
Advocate-on-Record for Respondent No. 1 (Caveator).

Nemo for Respondent No. 2.

Date of hearing : 3rd October 1973.

JUDGMENT

MUHAMMAD GUL, J.--Syed Afzal Shah, respondent No. 1 herein sued for possession
by pre-emption of land measuring 95 kanal 8 marlas sold to the petitioners herein. The
transaction was oral and a mutation was sanctioned for an ostensible consideration of Rs.
18,000. According to the pre-emptor, however, only Rs.12,000 were in fact paid and that
Rs.18,000 were recited in the mutation as the sate price, to avoid pre-emption. The
petitioner-vendees contested the suit on a number of pleas, including the plea that the
plaint was insufficiently stamped. Fee on the suit was payable on fifteen times the annual
net profits. Accordingly, the trial Court issued a commission for the determination of the
net profits, and found the value of the land for purposes of court fee to be Rs. 18,000.
Respondent No. 1 made up the deficiency in the court-fee and the triad Court after
consideration of merits of the case, decreed the suit in his favour on payment of Rs.
18,000.

2. The petitioner filed an appeal in the High Court and in first instance paid a court-fee of
Rs. 7f0. However, their learned counsel endorsed a note on the same appeal that the
court-fee was paid in accordance with the valuation in the copy of the plaint, though
according to the copy of the decree sheet, the court-fee payable is Rs. 1,010. The
petitioners' counsel however, undertook that upon verification of the proper court-fee
payable, the petitioners will make up the deficiency. In the Registry of the High Court,
the memorandum of appeal was found to be insufficiently stamped and the petitioners
were given time to make up deficiency in the court-fee. This they failed to do so despite
the appeal was adjourned thrice for the purpose. Finally the petitioners paid court-fee in
the aggregate sum of Rs. 1,072.50 although the proper court-fee payable was Rs. 1,095.
Thus there was deficiency of Rs. 22.50. In the meantime, the appeal was transferred to
the Additional District Judge because of the change in law investing the District Judge
with enhanced pecuniary jurisdiction to hear the appeals. Before the learned Additional
District Judge, on 13th May 1964, respondent No. 1 moved a formal application praying
for the dismissal of the appeal for being insufficiently stamped. The petitioners in their

Page No. 1 of 2
reply, admitted that the memorandum of appeal was insufficiently stamped; they
however, prayed that the time be extended for making up the deficiency to exercise of the
Court's power under sections 149 and 151, C. P. C. Learned Additional District Judge
refused to extend time and rejected the appeal under section 4 of the Court Fees Act.

3. The petitioner's Regular Second Appeal No. 354 of 1967 having been dismissed by a
learned Single Judge, they have moved this leave petition.

4. Learned counsel for the petitioners argued that the petitioners were victims of a bona
fide error and that there was no deliberate default or neglect on their part to make up the
deficiency in the court-fee. Reliance was also placed upon the provisions of section 28 of
the Court Fee Act which gives wide discretion to a Court to allow opportunity to make up
the deficiency in the court-fee if a document is found to be insufficiently stamped. It is,
however, not denied that on the basis of the report of the local Commissioner, the learned
trial Court had fixed the value of the suit for purposes of court-fee and jurisdiction at
Rs.18,000-1-9 on which court fee of the value of Rs. 1,095 was paid by respondent No. 1
as plaintiff. The petitioners had only to peruse the record of the trial Court to find out the
correct valuation of the appeal for purposes of court-fee. Having failed to do so, and to
avail of at least three opportunities to make up the deficiency, the learned Additional
District Judge was amply justified not to further extend time to enable them to make up
the deficiency. Needless to say, a valuable right had accrued to the respondent No. 1, of
which he cannot be justly deprived when the petitioners did not show due diligence and
care in the prosecution of their appeal.

5. There is no force in this petition which is hereby dismissed.

Petition dismissed.

Page No. 2 of 2
P L D 1991 Lahore 1

Before Akhtar Hasan and Mian Nazir Akhtar, JJ

Dr. KHALID KARIM--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, RAWALPINDI and 10 others--Respondents

Writ Petition No.247 of 1990, decided on 3rd November, 1990.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)--

----S. 13---Court Fees Act (VII of 1870), Schd. 1, Art. 1 & Ss.28 & 10- -Memorandum of
appeal-- -Deficiency in court-fee--- Effect- --Appeal against the order of Rent Controller
having force of decree was governed by Art. 1 of Schedule I of the Court Fees Act and ad
valorem court-fee was payable on the. subject-matter of the dispute ---Words "if he thinks
fit" occurring in S.28, their significance and effect ---Such words give discretion to the
Court in the matter- -Circumstances when exercise of discretion by Court in favour of
defaulting party not considered proper--- Negligence and contumacy on the part of
defaulting party disentitle him to exercise of discretion in his favour.

Under the law; a plaint or a memorandum of appeal cannot be considered to be properly

filed as long as it does not bear the requisite court-fee on the amount of Rs.90,000 which
was the value of the subject-matter of the dispute according to the tenant's own claim.
According to the claim of the landlord, the value of the subject-matter was Rs.1,80,000.
The tenant opted to pay Court-fee of Rs.15 only and did not make good the deficiency
despite an objection raised by the landlord in that behalf. No application was made by the
tenant, at any stage, during the pendency of the appeal for permission to make good the
deficiency of the court-fee. Instead, the tenant hotly contested the landlords' objection to
the deficiency of court-fee. It was not a case involving wrong estimation of net profits or
market value resulting in insufficient or excess payment of court-fee. Hence, the
provisions of section 10 of the Court Fees Act were not relevant. Similarly, there was no
mistake or inadvertence in filing the appeal with insufficient court-fee so as to entitle the
tenant to exercise of discretion in his favour under section 28 of the Court Fees Act. It
was a case in which the tenant consciously and deliberately chose to pay a court-fee of
Rs.15 on the memorandum of appeal, which, according to the First Part of section 28 of
the Act, was of no validity. Even if it is found that the memorandum of appeal was
received by the Court through mistake or inadvertence, it was entirely for the appellate
Court to order that the appeal be stamped with the requisite court-fee. The use of the
words "if he thinks fit" gives discretion to the Court in the matter. In the present case, the
Court took into account all the relevant circumstances and did not think it to be a fit case
for exercise of discretion in the matter of allowing an opportunity to the petitioner to
make good the deficiency in the court-fee. The discretion did not appear to have been
exercised in an arbitrary or . capricious manner. Hence, no interference was called for in
the exercise of Constitutional jurisdiction by the High Court [p. 4] A

In the present case the tenant acted with negligence and contumacy. On the one hand
despite alleging that the monthly rent of the property was Rs.7,500, he failed to pay the
court-fee on the annual rental value of the property and on the other stubbornly insisted
that the calculation and determination must be made by the Court and then he would pay
it. Such a demand may be countenanced in a case in which there is some 'confusion, or
ambiguity or difficulty in calculating the value of the subject-matter of dispute. In the
present case, there was no such ambiguity, confusion or difficulty. Hence, the appellate
Court was justified in not exercising the discretion in favour of the tenant. [p. 6] B

In the present case the tenant had acted with gross negligence and his conduct reflected
contumacy calling for no indulgence on the part of the Court. The impugned order could
not be termed to be either without jurisdiction or without lawful authority and of no legal
effect. The Court below had not been shown to have exercised its discretionary power in
an arbitrary, capricious or injudicious manner. [p. 7] C

Page No. 1 of 2
Siddique Khan and 2 others v. Abdul Shakoor Khan and another PLD 1984 SC 289;
Hakim Shahab-ud-Din v. Abdul Majid and others 1985 CLC 2495; Sikandar Din v.
Additional Commissioner (Revenue), Rawalpindi Division, Rawalpindi 1987 CLC 2428;
Mukhi Chatromal etc. v. Khubchand and 6 others 1988 CLC 1711; Mahmood Ahmad etc.
v. Mr. S.M. Ishfaq Ali, Claims Commissioner and others PLD 1974 Note 32 at p. 69;
Mian Bashir Muhammad v. Ch. Abdul Rahman Gill and 7 others PLD 1987 Lah. 145 and
Allah Bakhsh v. Muhammad Sharif and others 1989 SCMR 1791 distinguished.

Lal Shah v. Muhammad Ishaq PLD 1977 Lah. 1058; Sher Muhammad Shah v. Malik
Abdul Aziz NLR 1980 Civil (Lah.) 160 and Nawab Din v. Basharat Ali 1986 MLD 692
rel.

Muhammad Younus Bhatti for Petitioner.

Sheikh Shuja-ud-Din Mahmood for Respondents.

Dates of hearing: 7th and 8th October, 1990.

Page No. 2 of 2
1987 C L C 2428

[Lahore]

Before Gul Zarin Kiani, J

SIKANDAR DIN--Petitioner

versus

ADDITIONAL COMMISSIONER (REVENUE), RAWALPINDI DIVISION,

RAWALPINDI and 2 others- -Respondents

Writ Petition No. 114 of 1983, heard on 16th September, 1987.

(a) Court Fees Act (VII of 1870)--

----S. 7(vi)--Punjab Court Fees (Abolition) Ordinance (X of 1983), S.2(b)--Land Reforms

Regulation, 1972 (M.L.R. 115), para.25(7)-Pre-emption suit-- Court-fee--Claims filed in
Courts earlier to the enforcement of the Ordinance X of 1983 were clearly liable to court-
fees in accordance with the law then prevailing.

(b) Court Fees Act (VII of 1870)--

--- Ss. 6 & 28---Limitation Act (IX of 1908), S.3--Civil Procedure Code (V of 1908),
O.VII, R.1--Plaint--Court-fee--Limitation--Land Reforms Regulation, 1972 (M.L.R.
115), para. 25(7)--Unless required amount of court-fee chargeable on document (which
term includes plaint also) as was indicated in schedules, was not paid, it shall not be taken
to be of any validity--Such rule however, does not lead to a necessary corollary that the
plaint which was not adequately stamped was not a 'proper plaint' at all in the eyes -of
law and further that for the limitation purposes suit shall be deemed to have been
instituted only when proper and required court-fee was paid on it.

Siddique Khan and 2 others v. Abdul Shakur Khan and another P L D 1984 SC 289 ref.

(c) Civil Procedure Code (V of 1908)--

--- O. IV, R. 1--Limitation Act (IX of 1908), S.3--Land Reforms Regulation, 1972,
(M.L.R. 115), para. 25(7)—Date of the suit be reckoned from the time when the plaint
was presented to the Court competent to receive it-- Insufficiency or deficiency of court-
fee shall not affect the question of limitation at all--Validity of plaint for the purposes of
the Limitation Act is not dependent on its validity for the purposes of Court Fees Act.

(d) Court Fees Act (VII of 1870)--

--- Preamble--Court Fees Act as its very title suggests was passed to secure revenues for
the State and it was never its purpose to arm a litigant with a weapon of technicality
against his opponent--Parties must win or lose their cases on substantial grounds and not
'technical tortures' and the Courts cannot be abettors- -Remand of case for hearing de
novo and decision afresh would involve the parties into purposeless and wasteful vortex
litigation.

(e) Constitution of Pakistan (1973)-

---Art. 199--Land Reforms Regulation, 1972 (M. L. R. 115), para. 25 (7)- -Pre-emption
suit by tenant-- Constitutional petition-Maintainability- -Petitioner, if aggrieved of the
impugned judgment was obliged to have invoked the remedy of revision before the Board
of Revenue- -Petitioner, held, was not entitled to by-pass statutory remedy and approach
High Court in its extraordinary jurisdiction without exhausting all the statutory remedies
in the hierachy of the special law enacted for decision of the pre-emption suits by tenant.

(f) Constitution of Pakistan (1973)--

Page No. 1 of 5
--- Art. 199--Land Reforms Regulation, 1972 (M.L.R. 115), para. 25 (7) --Pre-emption
suit by tenant-- Court-fees- -Deficiency---Constitutional jurisdiction being not in
continuity of the suit, arid it being doubtful as to whether the High Court in
Constitutional jurisdiction can call upon the defaulter to make up deficiency in court-fees
on the plaint, decision of Court below to the extent that it decided the question of court-
fees erroneously, was however, found by High Court in constitutional jurisdiction, to be
without lawful authority and remanded the case with specific directions with regard to the
court-fees.

Sh. Zamir Hussain for Petitioner.

Muhammad Munir Paracha for Respondent.

Date of hearing: 16th September, 1987.

JUDGMENT

By a sale-deed, dated 25-7-1977, Abdul Ghafoor sold 20 Kanals 7 Marlas of land 48/96th
share from Khasras 3046, 4165, 4170, situate at Mouza Kud-Lathi, Tehsil Attock at the
price of Rs.25,000 to one Sikandar Din defendant in the suit. Muhammad Din, as plaintiff
claimed that he was tenant of the land and pre-empted the sale. Suit was instituted in the
Court of Collector on 24-7-1978. In addition to asserting of his right of pre-emption,
plaintiff disputed the price paid for the land and alleged that it was sold for Rs.14,000
only and the rest of the amount was mentioned in the sale-deed merely to defeat the pre-
emption suit. Defendant contested the suit. It was pleaded that plaintiff was estopped to
sue; that pre-emption suit was instigated by some other person whose name, however,
was not stated in the written statement. Right to pre-empt was also traversed and it was
submitted that land in suit was purchased for Rs.25,000 which price was fixed in good
faith and was actually paid also. Market value of the land, it was stated, was not less than
the price actually paid. On 25-11-1978, Court framed issues which covered pleas in
regard to estoppel, right to pre-empt, price paid for the land, its market value and also
whether the valuation set up in the plaint for court-fees was incorrect. It appears from
trial ' Court's records that suit was adjourned on a number of dates for evidence. Finally,
on 6-7-1982, plaintiff appeared as his own witness, gave his statement, produced copy of
Jamabandi Ext.P.1 and copy of Khasra Girdawari Ext.P.2. For the defendant, his attorney
Mehboob Elahi, made statement as D.W., produced copy of the sale-deed Ext.D.1 and
power of attorney executed in his favour Ext.D.2.

On 30-8-1982, learned Collector gave decision for the defendant and dismissed the suit
on the short ground that the plaintiff had neither produced schedule of net profits in time
nor had paid the deficit court-fee. On appeal, this decision was reversed by learned
Additional Commissioner, (Revenue), Rawalpindi on 30-11-1982. It was held that
plaintiff had superior right of pre-emption to the extent of land in Khasras 4165, 4170
only, Rs.21,223 were found as price payable for the land, and Court gave decree for pre-
emption to the plaintiff on the payment of the aforesaid price which the plaintiff was
directed to deposit till 31-12-1982. Usual default clause was also added in the decree
sheet. In regard to court-fee payable on the plaint, Court was of the view that according to
fifteen times of annual net profits calculated on the basis of the schedule available on trial
Court's record, payment of court-fee was not required at all. Though the defendant
against whom suit was decreed, had a right to file revision to the Board of Revenue under
para. 25(7) of the- Land Reforms Regulation 115 of 1972, yet without availing this
statutory remedy, he chose to avail of the extraordinary remedy by an application under
Article 199 of the Constitution, to this Court and prayed that records of the Courts below
be called and the impugned order, dated 30-11-1982 be declared to have been made
without lawful authority and of no legal effect.

Constitutional petition was admitted to hearing on 13-4-1983 to examine the point of

court-fee only and its causative effect on the question of limitation in regard to the pre-
emption suit.

Page No. 2 of 5
Factual matrix of the case and evidence bearing thereon and the points raised in the writ
petition are fairly short and simple. Plaintiff's tenancy is established beyond dispute and
is clearly' proved by entries in Jamabandi Ext.P.1, extract from register Kasra Girdawari
Ext.P.2, his oral testimony and the clear admission of the defendant's attorney conceding
possession of the plaintiff over the land decreed to him. On the records, there is no
material to discredit the weight of this evidence. Also there appears to be no dispute about
price fixed and found payable for the land decreed to the plaintiff. From the endorsement
appearing on the back of the sale-deed Ext.D.1, it is manifest that sum of Rs.25,000 was
paid to the vendor at the time of the registration of the sale-deed. In the circumstances,
parties rightly did not raise dispute in regard to the fixation and payment of the price.
Khasras 4165, 4170, recorded in the cultivating possession of the plaintiff -pre-emptor
are classification-wise 'Maira Doem' and 'Banjar Qadeem'. Khasra No. 3064 excluded
from the decree is also 'Maira Doem'. When the nature of the land and its classification
are taken account of, proportionate price on the payment of which partial decree was
given to the plaintiff, appears to be absolutely correct. On question of estoppel, there is
not a syllable of evidence and no attempt was made to urge anything in support thereof.
At the hearing, findings on substantial issues like right of pre-emption, sale price and
estoppel were not questioned at all. Much time was, however, devoted by Sh. Zamir
Hussain, Advocate, to debate the question of court-fee and its effect on the pre-emption
suit. It was contended that valuation set up in the plaint for purpose of the court-fees was
extremely inadequate and that the plaintiff had also failed to provide to the Court
schedule of annual net profits in time and had not paid the required amount of court-fee
within the period of limitation prescribed for the pre-emption suit. Court-fee of Rs.113
was paid upon the plaint. Statement in the plaint in regard to annual net profits was based
on a mere guess work. In the circumstances, defendant disputed the correctness of the
amount of court-fee paid on the plaint and urged that the plaint was deficiently stamped.
On the objection of the defendant, Court raised a separate issue. Records indicated that in
the course of trial, plaintiff had made an application to the Court for permission to pay
court-fees on the basis of the statement of annual net profits got prepared by him without
the assistance of the Court. It is also seen from the records that the defendant resisted this
attempt and submitted that time for taking on record the schedule of net profits an4
payment of deficit court-fee had long run out. Scrutiny of records, however, reveals that
the trial Court had neither ascertained the correct amount of court-fees payable on the
plaint nor had given any time in the plaintiff -pre-emptor to make good the discovered
deficit if any. It is common ground that plaint was deficiently stamped. Appeal Court on a
totally wrong assumption of law proceeded to hold that the plaint was exempt from
payment of court-fees. This appears to be an incorrect approach. In terms of section 2(b)
of Punjab Ordinance No.X of 1983 (The Punjab Court Fees (Abolition) Ordinance,
1983), no court-fee was chargeable on any case of civil nature, the value of the subject-
matter whereof or the relief claimed wherein did not exceed Rs.25,000. Aforesaid
Ordinance took effect from 1-8-1978 and it did not touch the issue prior thereto. Schedule
of net profits available on the trial Court's file, correctness whereof was not seriously
disputed by the parties before me indicated Rs.1,159 as the annual net profits arising from
the land in suit. Under section 7(vi) of Court Fees Act, court-fee payable on the plaint in
the pre-emption suits, shall be calculated on fifteen times of the annual net profits arising
from the land in the year next before the date of presenting the plaint. As said above, suit
was filed on 24-7-1978 and the provisions of the Ordinance X of 1983 giving exemption
from the payment of court-fee upto a stated limit, were applied from 1-8-1978. On proper
calculation, the amount on which the court-fee was payable comes to Rs.17,385. There is
no dispute that the claims filed in Courts earlier to the enforcement of the Ordinance X of
1983, were clearly liable to court-fees in accordance with the law then prevailing. Mr.
Muhammad Munir Peracha, Advocate, for the respondent conceded to the correctness of
the above statement. From the facts either proved or admitted, it cannot be said that the'
plaint at the time of its presentation to the Court was adequately stamped. In brief, both
the learned counsel are agreed that the plaint in the pre-emption suit when it wits filed
before Collector was deficiently stamped. This brings me to the consideration of the
question of deficiency in court-fees and its legal effects on the future fate of the suit. This
question has engaged my serious attention. For the proper appreciation of the question
raised, reference to sections 6 and 28 of the Court Fees Act becomes necessary. Section 6
of the Court Fees Act provides that no document of any of the kinds specified as
chargeable in the First or Second schedule annexed to this Act shall be filed, exhibited or
recorded in any Court of justice, or shall be received or furnished by, any public officer,

Page No. 3 of 5
unless in respect of such document there be paid a fee of an amount not less than that
indicated by either of the said schedules as the proper fee for such document. Section 28
of the same Act says that the document which required stamp shall not be of any validity
unless it was properly stamped. It appears that unless required amount of court- fee
chargeable on the document (which term includes plaint also) as was indicated in the
Schedules was not paid, it shall not be taken to be of any validity. But this statement does
not lead to a necessary -corollary that the plaint which was not adequately stamped was
not a 'proper plaint' at all in the eyes of law and further that for the limitation purposes
suit shall be deemed to have been instituted only when proper and required court-fees
was paid on it. See Siddique Khan and 2 others v. Abdul Shakur Khan and another P L D
1984 SC 289 (at page 315). What are the necessary legal requirements of a valid plaint (a
phrase not defined in the C.P.C.) and what points it must contain are expressly given by
Order VII, Rule 1, C.P.C. Reference to other provisions of the Code in regard to
pleadings is not necessary. Order IV, Rule 1, C.P.C. which is headed 'Institution of suits'
provides that a suit shall be instituted by presenting a plaint to the Court or such officer as
it appoints in this behalf Explanation to section 3 Limitation Act 1908, to the extent it is
relevant to the occasion, says 'A suit is instituted in the ordinary cases when the plaint is
presented to the proper officer'. Read C together, the date of the suit must be reckoned
from the time when the plaint was first presented to the Court competent to receive I and,
in my opinion, insufficiency or deficiency of court-fees shall not affect the question of
limitation at all. Also, in my judgment, validity of the plaint for the purpose of Limitation
Act is not dependant on its validity for the purposes of Court Fees Act. On merits, the
petitioner has no case. All the issues which affect the pre-emptor's entitlement to get the
land have been found in his favour and have been correctly resolved except the question
of court-fee. Parties must win or lose their cases on substantial grounds and not 'technical
tortures' and the Courts cannot be abettors. It is trite law that Court Fees Act as its very
name suggests was passed to secure revenues for the State and it was never its purpose to
arm a litigant with a weapon of technicality against his opponent. I fail to understand as
to what real benefit shall accrue to the petitioner from the matter of court-fees except that
it may enrich the State by a certain amount of money. Remand of the case for hearing de
novo and decision afresh shall further involve the parties into a purposeless and wasteful
vortex of litigation. Decision of the Shariat Appellate Bench of the Supreme Court
holding against the pre-emption right tenant does not operate retrospectively to set at
naught the decree already passed by Courts of competent jurisdiction. Petitioner, if
aggrieved of the impugned judgment was obliged to have invoked the remedy of revision
before the Board of Revenue. He was not entitled to by-pass the statutory remedy and
approach High Court in its extraordinary jurisdiction without exhausting all the statutory
remedies in the hierarchy of the special law enacted for decision of the pre-emption suits
by tenants. On the view that proper role of a Judge for which purpose alone the institution
exists is to do justice' between the parties before him and that technicalities unless found
un-surmountable, should not be allowed to stand in his way to do justice in accordance
with the law, I am of the opinion that interference, with the findings on the merits of the
case in regard to the entitlement of the respondent to get the land at the price fixed by the
Court below, may not at all be proper and just. At the same time, respondent cannot be
permitted to evade the payment of correct amount of court-fee payable by him on his
claim. To this extent, the impugned judgment is bad and is liable to be set aside. As
jurisdiction in writ is not in continuity of the suit and it being doubtful as to whether the
High Court in writ jurisdiction can call upon the defaulter to make up the deficiency in
court-fee on the plaint, the decision of the Court below to the extent that it decided the
question of court-fee erroneously, is found to be without lawful authority. Except for the
above, findings on the remaining issues are not disturbed. Result is that the impugned
judgment to the extent indicated above (question of court-fee only) is set aside and the
case is remanded to learned Additional Commissioner, (Revenue), Rawalpindi with the
direction to ascertain the amount of court-fee eligible on the plaint in accordance with the
Schedule of net profits already on the trial Court's record, give the pre-emptor an
opportunity to make good the deficiency within a time to be fixed by him and in case of
default of payment of court-fees, if the learned Additional Commissioner, (Revenue)
finds no good ground to further extend the time, relevant provisions of law in regard to
non-payment of court-fees shall be allowed to take their due course. Except for the
question of court-fee, impugned decision does not seem to suffer from any infirmity
qualifying for interference in writ jurisdiction. As stated above, merits favoured the
respondent whereas technicality assisted the petitioner. On consideration of all the

Page No. 4 of 5
relevant circumstances arising in the case and the related provisions of the Court Fees
Act, course adopted, to me, appears to be just and proper. In the circumstances, the
parties are left to bear their own costs.

Records be sent down to the Court of learned Additional Commissioner, (Revenue),

Rawalpindi, where parties are directed to appear on 21-9-1987.

M.B.A./S-105/L Order accordingly.

Page No. 5 of 5
1989 SCMR 1791

Present: Muhammad Haleem, CJ., Shafiur Rahman and Ali Hussain Qazilbash, JJ

ALLAH BAKHSH—Appellant

Versus

MUHAMMAD SHARIF and others--Respondents

Civil Appeal No.133 of 1985, decided on 3rd May, 1989.

(From the judgment of the Lahore High Court, dated 26-1-1980, passed in Regular
Second Appeal No.34-1 of 1975).

(a) Court Fees Act (VII of 1870)----

--S.6--Constitution of Pakistan (1973), Art.185(3)--Leave to appeal was granted to

consider the legality of the refusal to extend time for making up the deficiency in the
court-fee on memorandum of appeal, in the light of the latest pronouncements of the
Supreme Court.

(b) Court Fees Act (VII or 1870)--

---S.6--Constitution of Pakistan (1973), Art. 185(3)--Court-fee--Neither any objection as

to deficiency in the payment of court-fee was raised by the office nor by the Court when
the appeal was admitted--Fact of deficiency in paying court-fee was brought to the notice
of Court by the appellant himself through an application wherein a complaint was made
that he was misled in paying a lesser court-fee by the decree-sheet and prayed for
permission to make up deficiency-Held the Court was under a legal obligation to have
allowed the appellant to make the deficiency in the payment of court-fee--Case remanded
by Supreme Court to decide the appeal on merits after making up deficiency in court-fee.

Hamid Aslam Qureshi, Advocate-on-Record for Appellant.

Rana MA. Qadri, Advocate-on-Record (absent) for Respondent No.l.

Date of hearing: 3rd May, 1989.

JUDGMENT

ALI HUSSAIN QAZILBASH, J.--This appeal, by leave, arises from the order of a
learned Single Judge of the Lahore High Court, dated 26-1-1980.

2. In a suit for pre-emption a decree was passed in favour of respondent No.l by the Civil
Judge, Vehari, on 23-6-1973. The appellant filed an appeal from the said decree but the
same was dismissed by the Additional District Judge, Multan on 28-5-1975, on the sole
ground of deficiency in the payment of the court-fee on the memorandum of appeal. The
appellant's regular second appeal was also dismissed as per the impugned order.

3. Leave in this case was granted to consider the legality of the refusal of the Additional
District Judge, Multan, to extend time for making up the deficiency in the court-fee on
the memorandum of appeal against which the appellant's regular second appeal before the
High Court failed in the light of the latest pronouncements of this Court.

4. After hearing the learned counsel for the appellant we think that the order of the
Additional District Judge Multan, and that of the High Court cannot be sustained. True
that the memorandum of appeal before the first appellate Court did not bear proper court-
fee but it is equally true that under section 6 of the Court-fees Act a duty is cast upon the
Court to determine the correct amount of court-fee and not to accept a plaint or appeal
which does not carry a proper court-fee. In the instant case nether any objection as to the
deficiency m the payment of the court-fee was raised by the office nor by the Court

Page No. 1 of 2
when .the appeal was admitted. The fact that the appeal was filed with a lesser amount of
court-fee was brought to the notice of the Court by the appellant himself through an
application wherein a complaint was made that he was misled in paying a B lesser court-
fee by the decree sheet; that no such objection was raised by the Court and prayed for
permission to make up the deficiency. The Court, therefore, was, in the circumstances,
under a legal obligation to have allowed the appellant to make up the deficiency in the
payment of the court-fee.

5. The new rates of court-fee were introduced by the Punjab Finance Act, 1973. The
deficiency in the payment of the court-fee at the new rates may have been the result of
lack of knowledge on the part of the appellant and, therefore neither contumacious nor
mala fide, more so when the amount of court-fee indicated in the decree sheet had been
paid by him.

6. The view, therefore, that we take in the matter is that we allow the appeal and set aside
the order of the learned Additional District Judge, Multan, dated 28-5-1975, and that of
the learned Judge of the High Court, dated 26-1-1980. The case is remanded to the
learned Additional District Judge to decide the appeal on merits. The appellant is directed
to make up the deficiency in the court-fee within three weeks from today. There is no
order as to costs.

MA.K/A-513/S Case remanded.

Page No. 2 of 2
P L D 1970 Supreme Court 37

Present: Muhammad Yaqub Ali and Sajjad Ahmad, JJ

MUHAMMAD NAWAZ KHAN AND ANOTHER---Petitioners

Versus

MAKHDOOM SYED GHULAM MUJTABA SHAH AND ANOTHER----Respondents

Civil Petition for Special Leave to Appeal No. 94 of 1969, decided on 30th October 1969.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore,
dated the 28th November 1968, in R. F. A. No. 6 of 1966/BWP).

Civil Procedure Code (V of 1908),

O. VII, r. 11 & S. 149----Provisions to be read together---Relief claimed undervalued and

plaint written on insufficiently stamped papers----Contention that such cases of under
valuation of relief excluded from purview of O. VII, r. 11 (c)----Held, not correct.

The contention in the case was that only those cases fall under clause (c), rule 11 of C. P.
C. in which the relief claimed is correctly valued in the first instance. If the relief claimed
is undervalued and written on insufficiently stamped papers then neither clause (a) nor
clause (b) of rule 11 would be attracted and the case would fall within the ambit of
section 149, C. P. C. under which the Court has discretion to refuse an opportunity to
supply requisite stamped papers

Held, 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, but time should automatically be enlarged in cases in which the Court has the
discretion to grant time to pay the whole or part of the court-fee prescribed. This will
offend against the rule of harmonious construction. The provisions of Order VII, rule 11
and section 149, are, therefore, to be read together. Consequently, where the plaintiff is
required to correct the valuation of the relief claimed in the suit, he shall further be
required to supply the requisite stamp paper and on compliance it shall have the same
force and effect as if such fee had been paid in the first instance.

Jagat Ram v. Misar Kharaiti Ram and another A I R 1938 Lah. 361 ref.

Muhammad Shafi, Senior Advocate Supreme Court instructed by S. Wajid Hussain,

Senior Attorney for Petitioners.

Parvez Akhtar, Advocate Supreme Court instructed by Abdul Karim Sheikh, Attorney for
Respondent No. 1.

Nemo for Respondent No. 2.

Date of hearing: 30th October 1969.

ORDER

MUHAMMAD YAQUB ALI, J.-The petitioners are vendees of agricultural land situated
in mauza Matoi, district Muzaffargarh. A suit for pre-empting the sale was filed by the
respondent No. 1 which the petitioner contested inter alia on the grounds that it was
undervalued and the plaint was insufficiently stamped. The trial Judge framed
preliminary issues covering these objections and found the suit undervalued as five out of
the eight khatas were not assessed to land revenue and the plaintiff had omitted to
compute the value of the rest of the khatas in accordance with the relevant provisions of
the Court Fees Act.

Page No. 1 of 2
Instead of requiring the respondent No. I to re-value the plaint and pay the Additional
court-fee as required by Order VII, rule 11, C. P. C. the trial Judge, however, proceeded to
dismiss the suit on the view that although ample opportunity was afforded to the
respondent No. I by the petitioner to re-value the suit and pay the deficient court-fee, he
had on the contrary chosen to contest these issues and thereby allowed the period of
limitation to expire.

The High Court on a first appeal by the respondent No. 1 found the order of the trial
Judge contrary to the provisions of section 149 and Order VII, rule 11, C. P. C. under
which he was required to allow the plaintiff an opportunity to correct the value of the suit
and pay deficient court-fee which shall have the same force and effect as if such fee had
been paid in the first instance. The order dismissing the suit was accordingly set aside and
the suit remanded to the High Court for allowing the plaintiff to make good the
deficiency in the court-fee.

Sh. Muhammad Shafi, appearing in support of the petition for leave to appeal emphasised
that cases of under valuation of relief are excluded from the purview of Order VII, rule 11
(c) and that under section 149 it was within the discretion of the trial Judge to refuse an
opportunity to make good the deficiency in the court-fee after the limitation had expired.
Rule l t provides:-

"11. The plaint shall be rejected in the following cases:-

(a) where it does not disclose a cause of action ;

(b) where the relief claimed is undervalued, 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;

(c) where the relief claimed is properly valued, but the plaint is written upon paper
insufficiently stamped, and the plaintiff, on being required by the Court to supply the
requisite stamp-paper within a time to be fixed by the Court, fails to do so;

According to the learned counsel only those cases fall under clause (c) in which the relief
claimed is correctly valued in the first instance. In other words if the relief claimed is
undervalued and as would necessarily happen in every case the plaint is written on a
paper insufficiently stamped then neither clause (a) nor clause (b) would be attracted and
the case will fall within the ambit of section 149 under which the Court has the discretion
to refuse an opportunity to supply the requisite stamp paper.

We are unable to accept the interpretation placed by the learned counsel on the provisions
of section 149 and Order VII, rule 11, C. P. C. There is not a single precedent case which
supports this view while the contrary view is supported by the Full Bench decision of the
Lahore High Court reported in Jagat Ram v. Misar Kharaiti Ram and another (A I R 1938
Lah. 361) and a number of other judgments delivered by various High Courts in the
subcontinent including a judgment of the Peshawar Bench of the High Court of West
Pakistan.

Apart from these weighty judgments 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, but time should automatically be
enlarged in cases in which the Court has the discretion to grant time to pay the whole or
part of the court-fee prescribed. This will offend against the rule of harmonious
construction. The provisions of Order VII, rule 11 and section 149 are, therefore, to be
read together. Consequently where the plaintiff is required to correct the valuation of the
relief claimed in the suit, he shall further be required to supply the requisite stamp paper
and on compliance it shall have the same force and effect as if such fee had been paid in
the first instance.

The petition is dismissed.

K. B. A.. Leave refused.

Page No. 2 of 2
P L D 1987 Lahore 127

Before Amjad Khan. J

KHUDA YAR AND 4 OTHERS-Petitioners

versus

Resaldar Malik NAWAZ KHAN AND 2 OTHERS-Respondents

Civil Revision No. 1851/D of 1984, decided on 22nd December, 1986.

(a) Civil Procedure Code (V of 1908)

-- S. 149 & O. VII, R. 11-Court Fees Act (VII of 1870), Ss. 6 & 10-Rejection of plaint for
non-payment of court-fee-Requirement-Liability of a suit to be taken off, held, could
follow only upon failure of plaintiff to supply requisite stamp paper on requisition from
Court, to pay same within specified time-Where Court comes to conclusion that a plaint
was to be properly stamped, proper course would be an order under S. 10, Court Fees
Act, to direct payment of requisite court-fee-Such order could also be passed by Trial
Court under S. 6, Court Fees Act in conjunction with S. 149 of Civil Procedure Code,
1908.

Siddique Khan and 2 others v. Abdul Shakur Khan and another P L D 1984 S C 289 and
Rachappa Subrao Jadhar Desai v. Shidappa Subrao Jadhav Desai A I R 1918 P C 188 rel.

(b) Punjab Pre-emption Act (I of 1913-

-- S. 30-Limitation Act (IX of 1908), Arts. 10 & 120-Suit for preemption-Limitation-

Limitation for filing of suit to enforce right of pre-emption is contained in Art. 10 of
Limitation Act- Cases which do not fall under Art. 10, Limitation Act, 1908, held, would
fall under Art. 120 of the Act which is a residuary provision-Provisions of S. 30 of Punjab
Pre-emption Act, 1913, was enacted as a provision supplementing those of Art. 10 of
Limitation Act, 1908.

(c) Punjab Pre-emption Act (I of 1913)

-- S. 30-Limitation on basis of possession-Objection to-Provisions of Art. 10 of

Limitation Act, is the primary provision to apply in pre-emption suit-In cases where Art.
10 Limitation Act, 1908 was not applicable, limitation for a pre-emption suit would be
governed by Art. 120 of Limitation Act, 1908-Provision of S. 30, Punjab Pre-emption Act
is in the nature of an exception to Art. 120 of Limitation Act, 1908-Application of Art.
120, Limitation Act, 1908 would therefore stand curtailed by S. 30 of Punjab Pre-emption
Act, 1913-For sustaining objection about limitation on basis of possession, essential
requisites would be one of physical possession and the other of such possession being
`under the sale'.

(d) Punjab Pre-emption Act (I of 1913r-

-- S. 30-Physical possession-Fractional share of joint property whether capable of

physical possession-Fractional share of joint property, held, was incapable of physical
possession.

Wali Muhammad v. Dost Muhammad and another 1986 C L C 1220 rel.

(e) Punjab Pre-emption Act (I of 1913)-

-- S. 30-Limitation Act (IX of 1908), Art. 10 - Suit for preemption - Limitation,

determination of - Provision of S. 30, Punjab Pre-emption Act provides limitation to run
from date of attestation of mutation or from the date of taking by vendee of physical
possession under the sale of any part of property sold, whichever date is earlier-In case of
oral sale wherein land was incapable of physical possession, though such sale was

Page No. 1 of 5
confirmed by a civil Court, decree would not fall under S. 30, Punjab Pre-emption Act -
Suit for pre-emption against an oral sale of such land as was incapable of physical
possession though confirmed by civil Court decree, would not fall under S. 30 of Act and
would be governed by Art. 120 of Limitation Act and such suit could be filed within six
years from the date "the right to sue accrued" to pre-emptor.

(f) Punjab Pre-emption Act (I of 1913)--

-- S. 15-Court Fees Act (VII of 1870), Ss. 6 & 28-Payment of proper court-fee, a pre-
condition for trial of a suit-Payment of proper court-fee, held, was a pre-condition to be
fulfilled by a plaintiff for having his suit tried-Court was required to hold up decision of a
suit until after requisite court-fee was paid-Where court-fee was not paid despite
opportunity provided in accordance with law for its payment and suit was perforce to be
dismissed on account of default, even then obligation to direct that court-fee was to be
recovered from defaulting party still remained-Practice of Courts whereby suits for
default in payment of court-fee were dismissed without direction to recovery of court-fee
depreciated by High Court.

(g) Punjab Preemption Act (I of 1913)

-- S. 15-Court Fees Act (VII of 1870), Ss. 6 & 28-Non-payment of court-fee-Recovery

of-High Court in exercise of powers under S. 28 of Court Fees Act directed Collector
immediately to recover court-fee from defaulting parties, whose causes though decided
by Courts were still liable to pay requisite court-fee.

(h) Civil Procedure Code (V of 1908)

-- S. 115-Punjab Pre-emption Act (I of 1913), S. 30-Revisional jurisdiction, exercise of-

Where conclusions arrived by Appellate Court were correct in spite of matter having been
treated from a different angle which High Court did not find either complete or quite
correct, High Court declined to upset such findings in revisional jurisdiction.

Zulffqar All Bhatti for Appellant.

ORDER

Respondents Nos. 1 and 2 filed a suit on 1-3-1979, for possession through pre-emption,
with regard to 118 Kanals 17 Marlas of land, being the 41/192nd share of a joint Khata of
532 Kanals 3 Marlas, situated in village Attra South, Tehsil Khushab ; on the ground of
their being the collaterals of the vendors and also co-sharers in the land in suit. Vendee-
defendants, the petitioners herein, contested the suit by denying their claim and raising
the pleas also of limitation and incorrect valuation of the suit, which had been mentioned
in the plaint as Rs. 3,000 (on the basis of net-profits of Rs. 200 stated to have accrued
during the one year immediately preceding the presentation of the plaint) to claim
exemption from the payment of court-fee and none was paid thereon. Necessary issues
were settled and evidence was led. The Civil Judge decreed the suit on 17-5-1980 by
deciding all the issues in favour of the plaintiffs. An appeal there against filed by the
vendees was, however, accepted by the learned District Judge by remanding the suit on
22-6-1983. Consequent thereto, learned Civil Judge again decided the suit on 3-10-1983
and, though he decided the remaining issues in favour of the plaintiffs by holding that
they are co-sharers in the suit land and the vendee-defendants are strangers, yet, he
dismissed their suit with the findings adverse to them recorded under the first two issues
relating to the valuation and limitation. He held that according to the statement of net-
profits, Rs. 2, 536.48 was the correct amount and there could not be any reason for
deduction therefrom of Rs. 1,268.24 as the tenant's share because the land had remained
under self-cultivation and the correct figure to be reached was the 15 times of the entire
profits, which far exceeded the limit of exemption. As regards the question of limitation,
he found that the land was under cultivation of the vendees in Rabi 1978 which would
have been sown somewhere in the months of September-October 1977 and hence, the suit
instituted on 1-3-1979, was barred by time under Article 10 of the Limitation Act.

Page No. 2 of 5
2. An appeal there against filed by the said plaintiffs has been accepted by Mr. Abdul
Ghaffar Khan, learned Additional District Judge, Khushab on 24-10-1984 to reverse the
findings of the trial Court on both the issues and, setting its decree aside, he decreed their
suit. The dispute about the valuation of the suit was disposed of by him with reference to
his order passed on 10-10-1984 whereby he had accepted the application filed. as under
protest, by the plaintiff-appellants before him to be permitted to pay the court-fee worth
Rs. 2,853.54 on the appeal, on the basis of the valuation assessed by the trial Court. who,
however, had not provided them an opportunity to pay the requisite court-fee on their
plaint. With reference to the said order, the learned Additional District Judge observed
that neither of the parties had advanced arguments there about and they were unanimous
that the question of limitation alone had to be considered by him. Then he took up the
issue about limitation and the sale in suit having been made by means of a consent decree
passed by the civil Court on 5-3-1978, he observed that the vendees had not produced any
documentary evidence to prove that the sale may have taken place at any time earlier than
5-3-1978, therefore, he concluded that the possession of the vendees, admitted by the
witness of the plaintiffs to be held by the vendees as tenants in the previous crops, could
not be regarded to be proved to have been taken by them under the sale. Learned
Additional District Judge considered the suit to be within time from the date of decree (5-
3-1978) and accordingly reversed the trial Court's findings about limitation. Vendees have
now come up to this Court on revision.

3. Learned counsel has argued that despite the liability of the plaint to bear the court-fee
of the value of Rs. 2,853.54 on a correct valuation, the plaintiffs acted dishonestly in not
paying any court-fee on the plaint on account of an incorrect representation made to the
effect that the valuation bad to be worked out on only the half of the net-profits and that
the figure thus reached would be exempt from liability of payment of court-fee. On this
premises learned counsel maintains that the suit of the respondent had been rightly
dismissed by the trial Court and did not deserve to be decreed in their appeal. There is no
merit in this contention. I have already upheld the appellate Court's order dated 10-10-
1984, relating to the question of court-fee, in Civil Revision No. 1662 of 1984. It is
noticed also that learned trial Judge had not provided opportunity to the plaintiffs to pay
the deficient court-fee in accordance with his findings, ultimately upheld. Such was the
requirement of clause (c) of rule 1 I of Order VII of the C. P. C. and the liability of the
suit to be taken off could have followed only upon the failure of the plaintiffs to supply
the requisite stamp-paper on a requisition from the Court, to pay it within such time as
may have been fixed for the purpose. This course was not adopted by the trial Court who
after coming to the conclusion that the plaint was liable to be properly stamped, should
have proceeded to pass an order under section 10 of the Court Fees Act, to direct the
payment of requisite court-fee. A similar power vested in the trial Court under section 6
of Court Fees Act read with section 149 of the C. P. C. but even this was not adverted to
and the straight out dismissal of the suit was clearly wrong. To the above effect are also
the views expressed by their Lordships of the Supreme Court in Siddique Khan and 2
others v. Abdul Shakur Khan and another (1). Question of court-fee is a matter between
the subject and the State and a litigant cannot be allowed to use it as a weapon of
technicality against his opponent, as has been held in Rachappa Subrao Jadhav Desai v.
Shidappa Subrao Jadhav Desai (2). Since the dispute relating to court-fee does not
involve any question of jurisdiction of the Court nor does it affect the litigation on its
merits, which have not been assailed before me by the learned counsel, therefore, by
virtue of section 99 of the C. P. C., the decree passed in favour of the respondents cannot
be interfered with. Contention of the learned counsel is, hence, repelled.

(1) PLD 1984 SC 289 (2) AIR 191 8PC 188

4. Learned counsel has next argued that the suit of the plaintiffs was barred by time under
section 30 of the Punjab Pre-emption Act in so far as it had not been filed within one year
of the delivery of possession to the vendees, as had even been admitted by the witness of
the plaintiffs. This contention is clearly misconceived in the facts of this case and cannot
be sustained. Limitation for filing of suits to enforce the right of pre-emption is contained
in Article 10 of the Limitation Act and those cases which do not come under this Article
would have fallen to be governed by Article 120 thereof, which is a residuary provision
but section 30 of the Punjab Preemption Act, 1913 was enacted as a provision

Page No. 3 of 5
supplementing those of the said Article 10. For facility of reference, the relevant parts of
these three provisions, so far as they are in point here, are reproduced as under :

(i) Article 10 of the Limitation Act provides the limitation of one year to run from the
date;

"When the purchaser takes, under the sale sought to be impeached, physical possession of
the whole of the property sold, or, where the subject of the sale does not admit of physical
possession, when the instrument of sale is registered."

(ii) Article 120 of the Limitation Act provides a period of 6 years for a "suit for which no
period of limitation is provided elsewhere in this Schedule", to run from the date-

"When the right to sue accrues."

(iii) Section 30 of the Punjab Pre-emption Act lays down :-

"In any case not provided for by Article 10 of the Second Schedule of the Limitation Act,
1908, the period of limitation in a suit to enforce a right of pre-emption under the
provisions of this Act, shall, notwithstanding anything in Article 120 of the said Schedule,
be one year--

(1) in the case of a sale of agricultural land or of village immovable property, from the
date of the attestation (if any) of the sale by a Revenue Officer having jurisdiction in the
register of mutations maintained under the Punjab Land Revenue Act, 1887, or from the
date on which the vendee takes under the sale physical possession of any part of such
land or property, Whichever date shall be the earlier ; "

A conjuncted reading of the above provisions leads to the results as under :--

(a) that Article 10 of the Limitation Act is the primary provision td apply in pre-emption
suits;

(b) that in cases whereto Article 10 may not apply, limitation would be liable to be
governed by Article 120 thereof ; and

(c) that the application of Article 120 to such suits for pre-emption stands curtailed by the
provisions of section 30 of the Punjab Pre-- emption Act to the extent that a given case
may fall thereunder; because it is a provision in the nature of an exception to Article 120
of the Limitation Act.

The date of taking of possession by the vendee of the property sold is provided to be the
sine-qua-non for limitation, both in Article 10 and section 30 which has not merely to be
`physical' but has also to be `under the sale'. The distinction, however, is that whereas
under the former provision it has to be 'of the whole of the property sold'; under the later
one it may be 'of any part of such property'.

Hence, for the purpose of sustaining the objection about limitation on the basis of
possession, whether under one of above provisions or the other, the possession claimed
by the defending vendee has to stand two tests, first that it should be `physical possession'
and, second, that it should be `under the sale'.

5. More than one situation can be visualized where a property sold may not be capable of
being physically possessed by the vendee. For instance, it may be in the possession of a
mortgagee or be in the occupation of a tenant. Another example thereof stands provided
by this case wherein the land sold, as mentioned already, is the 41/192nd share, of a joint
Khat land measuring 532 Kanals 3 Marlas, amounting to 118 Kanals 17 Marla which
cannot be a perceptible entity to become a tangible property and b capable of being
physically possessed. I have already considered this point in Wali Muhammad v. Dost
Muhammad and another 1986 C L C 1220, wherein a conclusion was reached that such a
factional share of a property is incapable of physical possession.

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As such, in this case, first part of the third column of Article 10 does not apply and since
this is not a case of sale by a registered deed, therefore, even the second part thereof does
not get attracted and the case will fall under Article 120, provided its application thereto
is not excluded by the provisions of section 30 of the Punjab Pre-emption Act, 1913
which, in relation to cases regarding agricultural land, provides the limitation to run from
the date of attestation of mutation or from the date of taking by the vendees of physical
possession under the sale of any part of the property sold, whichever date be earlier.
Neither of these conditions exists in this case because sale is not made by a mutation and,
as has been held above, physical possession could not have been taken and muchless so,
under the sale. Hence, this case of oral sale, of such land as is incapable of physical
possession, though confirmed by a civil Court's decree, does not fall under section 30 of
the Act and, for this reason, it cannot be regarded to have been excluded from the
purview of Article 120 of the Limitation Act which, therefore, will continue to govern the
suit of the plaintiffs who, thereunder, had six years to file the suit from the date that 'the
right to sue accrued' to them. Since no date other than the one of the passing of the
consent decree (5-3-1978) has even been suggested as the one on which the sale in suit
may have become known to the plaintiffs and it goes without saying that no one can be
said to have had a 'right to sue' without his having known it, therefore, there could not be
any question of this suit becoming barred by time. Hence, learned Additional District
Judge has rightly reversed the trial Court's finding on the point by holding the suit of the
plaintiffs to be within time and even though he has viewed the matter from a different
angle which, of course. I do not find either complete or quite correct, yet, hi; ultimate
conclusion is not wrong and the decree passed by him is correct Contention of the learned
counsel fails and is accordingly repelled.

6. However, before parting with this file, it must be observed that it has been frequently
noticed that, of late, there has grown a tendency in the Civil Judges to record findings
about the issues relating to court-fee in the final judgments to, in the end, dismiss the
suits on the ground of their being unstamped or understamped, on the assumption perhaps
that the concerned plaintiff may have been adequately punished in his suit having been
dismissed, whether on that ground or another. This is not the correct disposal of a suit.
Policy of the law is that payment of proper court-fee is a pre-condition to be fulfilled by a
plaintiff for having his suit tried and a mere finding adverse to a plaintiff recorded at the
end of a trial or even the dismissal of his suit on that score does not achieve the object
because, as has been laid down in sections 6 and 28 of the Court Fees Act, in absence of
payment of proper court-fee the suit remains incapable of being tried and, still, in such a
disposal, a trial in fact takes place. Hence, the concerned Judge has not to remain content
merely with the decision of the relevant issue, one way or the other, but has also to
enforce it under the provisions referred to above which should be kept in view to hold up
the decision of the relevant suit until after the requisite court-fee is paid and where so is
not done despite opportunity provided in accordance with law for its payment and the suit
has per force to be dismissed on account of default even then the obligation to direct that
the due court-fee will be recovered from the concerned person still remains. Where, by
mistake or inadvertence a trial Court omits to have the due court-fee paid, there the duty
to do the needful rests upon the higher Court but the exchequer cannot be made to suffer
for the lapse of one Court or the other.

7. Since the plaint in this suit continues to be unstamped despite its liability to bear court-
fee of the value of Rs. 2,853.54 and neither of the two Courts below has passed any order
for its payment, therefore, I air obliged to exercise power under section 28 of the Court
Fees Act for recovery from the plaintiffs of the said court-fee. Accordingly, it i; directed
that the Collector, Khushab will immediately recover on amount of Rs. 9,853.54 from the
plaintiffs on that count and since the earlier appeal filed in this case by the vendees in the
Court of Syed Sibtain Raza Naqvi, District Judge, Khushab (decided on 22-6-1983) had
also to bear the court-fee of the same value which was not paid thereon, therefore, the
learned Collector will also similarly recover an equivalent amount ever from the present
petitioners on that count.

8. There does not emerge any case for exercise of revisional jurisdiction. Hence,
dismissed in limine.

A. A./ 676/L Revision dismisses

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