1979 PLP 243 (SCMR)

MUHAMMAD HALEEM, J.‑This petition is directed against the judgment of the Lahore High Court dated 16th of October 1977 by which R. F. A. No. 52/72‑BWP was dismissed. The petitioners, by two separate agreements dated 7th of June 1977, and 21st of November 1977, agreed to sell to the respondents 295 kanals and 7 marlas of land situate in village Pallu Shah, Tehsil and District Rahimyar Khan for a total consideration of Rs. 64,

670. A dispute arose in regard to the execution of the second agreement and the payment of Rs. 29,900 as advance to the petitioners which led to the filing of the suit for the specific‑ performance of the aforementioned agreements which was ‑decreed by the trial Court on the 10th of November 1,976, and the petitioners were directed to deposit the balance amount of Rs. 34,607.81 by the 15th of December 1976. The petitioners, thereupon, filed a Regular First. Appeal in the Lahore High court and valued it, for the purpose of jurisdiction at Rs. 64,607 and for, the purpose of court‑fee at Rs. 18,860 on which they paid ad valorem court‑fee of Rs. 1,

419. The appeal was admitted to regular hearing without any objection. However, the respondents took preliminary objection at the time of the hearing of the appeal to the deficient Court fee paid by the petitioner. It was urged that as the market value of the property was Rs. 64,607 therefore, ad valorem court‑fee should have been paid on this amount under section 7(x)(a) of the Court Fees Act. But the petitioners had deliberately undervalued it for the purpose of court‑fee to evade payment of proper duty. The learned counsel for the petitioners did not contest the payment of the deficient court‑fee but contended that his clerk had wrongly computed it and he also failed to notice it before filing the memo of appeal. When his attention was drawn to the fact that in the opening sheet the value for the purpose of court‑fee was shown as Rs. 18,860 when it ought to have been Rs. 64,607 his explanation was "that a stamp of Rs. 1,419 had been fixed as the same amount was the court‑fee on the plaint and the clerk picked up the Schedule to find as to how much amount was leviable". The learned Judges were not convinced by this explanation and held :‑ "The appeal was not properly stamped and was considered deficient. The appellants have not been able to furnish any good reason for extension of time to make up the deficient court‑fee. A valuable right having already accrued to the respondents it is not desirable in the interest of justice to exercise discretion in appellants'. favour." and dismissed the appeal with costs. In seeking leave to appeal the learned counsel for the petitioners relied on Mahmood Ahmed and others v. S. M. Ishfaq Ali, Claims Commissioner etc. (P L J 1974 Lah. 253) to contend that the memorandum of appeal should not have been rejected if it was insufficiently stamped without giving an opportunity for making good the deficiency, within the time fixed by the Court and since no opportunity was given to the petitioners, the learned Judges erred in dismissing the appeal. It is true that no objection was raised by the office but there is no reasonable explanation as to why the appeal was undervalued for the purpose of court‑fee, when for the purpose of jurisdiction it was valued Rs. 64,

607. This undervaluation of the appeal for the purpose of court‑fee was not inadvertent but deliberate and the explanation given that the court‑fee at the old rate was paid hardly fits in with this device. The more so, because by that time the rates were enhanced by the Provincial Government and the same rate could not have been payable even otherwise. It was, therefore, that the learned Judges held that the proper court‑fee was deliberately not paid and that there was no justification to extend the time for making good the deficiency. The above cited case is distinguishable on facts as in our view the principle laid down could be applicable to a case of a bona fide mistake or where for some good reason proper court‑fee had not been paid. But this principle cannot be extended to a case where the party is guilty of contumacy as in the present case. In this connection I would refer to the observation made in the Full Bench case of Jagat Ram v. Misar Kharaiti Ram and another (A I R 1938 Lah. 361) which is as under :‑ "It seems to me that the discretion conferred on the Court by section 149, C. P. C. is normally expected to be exercised in favour of the litigant except in cases of contumacy or positive mala fides or reasons of similar kind." Accordingly no case is made out for interference with the conclusion of the learned Judges in the High Court. The petition has, therefore, no substance and is dismissed. Petition dismissed.