2019 PLP 233 (YLR)

M. TABASSUM AFTAB ALVI, C.J.

The supra titled appeal has been filed against the impugned judgment and decree dated 14th July, 2017, recorded by the learned District Judge, Bhimber, whereby, suit filed by appellants-plaintiffs was rejected, while exercising powers as visualized under Order VII, Rule 11 of Civil Procedure Code, 1908.

2. Precise facts of the case are that appellants, herein, and pro-forma respondents filed a suit for recovery of Rs.1,45,00,000/- along with perpetual and mandatory injunctions before the learned District Judge, Bhimber, against respondents, herein, on 06th June, 2017. The respondents, herein, during proceedings, filed an application under Order VII, Rule 11 of Civil Procedure Code, 1908, before the trial Court on 06th July, 2017, which after obtaining objections and hearing, was allowed and consequently plaint was rejected, vide the impugned judgment and decree dated 14th July, 2017, hence, the instant appeal.

3. The appellants at the time of filing appeal on 17th August, 2017 affixed Court-fee of Rs.5000/- instead of Rs.15,000/- and undertook as per paragraph 4 of memorandum of appeal to make up deficiency earliest. After passing about one year, they were directed to supply the deficiency within 10 days, vide order dated 30th July, 2018. The case was adjourned for 10th September, 2018. On the aforesaid date, appellant No.2, was present before Court, however, needful was not done. On 18th September, 2018, the learned counsel for appellants, however, moved an application for extension of time, which was opposed by the other side through objections dated 19th September, 2018.

4. Mr. Khurram Saif Ali, Advocate, appearing on behalf of appellants submitted that his clients were directed to supply deficiency of court-fee within 10 days vide order dated 30th July, 2018, however, needful could not be done due to misunderstanding of order and he could not inform appellants to supply deficiency who are residing at far flung area of Gujrat. He pressed into service that as per section 148 Civil Procedure Code, 1908, this Court enjoys vast powers to extend time, therefore, to make up the deficiency, in the interest of justice, time may be extended. The learned counsel in support of his contention referred to and relied upon the following case law:- i. Executive Engineer, Building Division, Mirpur and 4 others v. Raja Muhammad Nawaz Khan and Co. of Pran, District Gujrat [PLD 1994 Supreme Court (AJ&K) 32]. ii. Ch. Nazir Ahmed v. Abdul Karim and another [PLD 1990 Supreme Court 42]. iii. Sultan Ahmad and others v. Khuda Bux and others [1986 SCMR 1005].

5. Sheikh Masood Iqbal, Advocate, appearing on behalf of contesting respondents, however, opposed the application for extension of time and submitted that as appellants failed to supply deficiency of court-fee and violated Court order dated 30th July, 2018, hence, they are not entitled to any relief under law. He further argued that in case of any sufficient reason appellants could move an application for extension of time at least on last day of fixed period, however, due to their negligence a valuable right has been accrued in favour of his clients, therefore, submitted for dismissal of application as well as appeal. The learned counsel in support of his contention referred to and relied upon a case titled "Gul Hasan and another v. Azad Government and 3 others" [2003 SCR 221].

6. I have perused the contents of appeal, application for extension of time, objections filed by the other side and examined the record made available with utmost care.

7. A glance perusal of file reveals that to supply deficiency court-fee following order was passed by Court on 30th July, 2018:-- However, admittedly neither appellants supply deficiency within 10 days nor moved any application for extension of time. It further reflects from record that appellant No.2, was present on 10th September, 2018, however, neither deficiency of court-fee was supplied nor any application for extension was moved. To resolve the controversy it would be appropriate to reproduce Section 149 as well as Clauses "b" and "c" of Order VII, Rule 11, Civil Procedure Code, 1908, herein below:-- "

149. Power to make up deficiency of court-fees:

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-fee 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." Order VII, Rule 11 Clauses (b) and (c):-- "

11. Rejection of plaint.-- The plaint shall be rejected in the following cases:-- (a) xxx xxx xxx (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 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: (d) xxx xxx xxx." It may be firstly noted that section 149 applies to a case in which whole of the Court-fee is unpaid, apart from a case in which a part only of the fee is unpaid. The section confers, in view of its phraseology, a discretionary power which is exercisable at any stage. If section 149 is read in isolation the argument that a Court is bound to give at least one opportunity to a defaulting party cannot be sustained. However, clauses (b) and (c) do require that a plaint cannot be rejected unless at least one opportunity is given to the defaulting party, by fixing a time for compliance of the order. This aspect of the matter should not engage Court attention because by now the law has become settled that these two provisions, section 149 and Order VII, Rule 11, have to be read together and must be given effect to accordingly. It follows that these two provisions cannot be considered to mutually destructive. The question, therefore, is how the apparent difference that section 149 is discretionary while clauses (b) and (c) of rule 11 are mandatory in nature may be reconciled. A close look at the two provisions would show that this difference is only apparent and is not real. Section 149 is a general provision which deals with all categories of cases but clauses (b) and (c) only deal with two given situations. Clause (b) deals with a situation where the relief claimed is under-valued, while clause (c) caters to a situation where the relief claimed is properly valued but the plaint is written upon insufficient stamp-paper. The plain interpretation, therefore, is that in situations falling in clauses (b) and (c) the requirement of giving one opportunity is mandatory and if a case does not fall in any of the two categories the power would be discretionary.

8. As observed earlier, appellants were granted 10 days time to supply deficiency on 30th July, 2018, who did not bother to comply with the order. Even after passing about one year they again remained mum for 01 month and 10 days, who failed to make up deficiency on 10th September, 2018. The order, supra, passed by the Court was crystal clear and stance of misunderstanding seems as baseless. No any plausible reason, therefore, has been given in application for non-compliance of deficiency. The appellants were guilty of contumacy and positive mala fides in putting deficient court-fee along with memorandum of appeal only to drag the other side. A similar proposition came under consideration before the Apex Court of Azad Jammu and Kashmir in case titled "Gul Hassan and another v. Azad Government and 3 others" [2003 SCR 221], wherein, at page 223, of the report, it was held as under:-- "

7. The appeal right from the day first could not have been entertained, as rightly pointed out by the High Court, due to non-payment of court-fee but the appellants through an application requested the Court that the limitation was running out and they would make up the deficiency in the court-fee by the next date of hearing, but did not honour the commitment. This shows that the appellants deliberately did not make payment of necessary court-fee in spite of seeking opportunities for the purpose." An identical view was expressed by the Apex Court of Pakistan in case titled "Siddique Khan and 2 others v. Abdul Shakur Khan and another (PLD 1984 Supreme Court 289), wherein, at page 323 of the report, it was opined as follows:-- "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 on 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." The same view was expressed by the Peshawar High Court, in case titled "Khalifa Abdul Ghani v. Amir Hamza and 7 others" (1998 CLC 1851).

9. A glance perusal of the impugned judgment dated 1401 July, 2017, reveals that appellants filed suit for permanent and mandatory injunctions along with recovery of Rs.1,45,00,000/- before the Court of District Judge, Bhimber, on 06th June, 2017, however, appended only Rs.5000/- as court-fee. It further reflects from the impugned judgment that previously a suit of similar nature was filed by appellants on 07th February, 2005, and thereafter they moved an application for withdrawal of the same on 06th June, 2005, hence, the earlier suit for the same reliefs was withdrawn between the same parties. The later suit was, however, filed after 12 years, hence, the plaint was rejected by the Court below as hopelessly barred by limitation through the impugned judgment and decree dated 14th July, 2017, therefore, appellants have got no case even on merits, who do not deserve any leniency.

10. The facts of authorities referred to and relied upon by the learned counsel for appellants are distinguishable which are not helpful to his clients.

11. The crux of above discussion is that application for extension of time filed by appellants, to supply deficiency of court-fee, is rejected. Consequently appeal is also dismissed. The cost shall follow the eventuality. ZC/34/HC(AJ&K) Appeal dismissed.