P L D 1975 Lahore 1235 (PLP)

A. R. SHEIKH, J.‑The appellant‑Bank brought a suit for recovery of Rs. 2,28,690.75 against the respondents. The trial Court directed the appel lant on the 9th of March 1971, while fixing the next date for service of the respondents as the 26th of April 1971, to make good the deficiency in court ‑fee (Rs. 158.12) within fifteen days. The appellant, however, filed the deficit court‑fee alongwith an application on the 30th of March 1971. The Court's order appearing on the application and the court‑fee stamp reads : `File' An objection was taken by respondents Nos. 1 to 7 on the 30th of October 1971, when service in the suit was yet incomplete, that deficiency in co4rt‑feu having not been made good within the period granted by the Court, the plaint be rejected under order VII, rule 11 (c) of the Code of Civil Procedure, which objection has been upheld and the plaint rejected.

2. The challenge against the order under appeal is manifold. It has been contended that the deficit court‑fee having been filed along With an application seeking permission to place the same on the record on the 30th .of March 1971 and the Court having passed an order of 'File', both on the ‑‑stamp‑paper and the application, the said order amounted to acceptance of deficit court‑fee as within time, impliedly enlarging the period by virtue of the provisions of section 148 of the Code of Civil Procedure. The contention raised in the alternate is that if the said order of 30th March 1971 is not, considered as extending the period already granted, the application remained pending and non‑disposal of the said application by the Court could not be used to prejudice the case of the appellant according the maxim `actus ,curiae nominem gravabit' (an act of the Court shall prejudice no man). It is maintained that it was a fit case for exercise of discretion under section 148 of the Code of Civil Procedure in view of the peculiar circum stances that the appellant is a juristic person, it takes time to get sanction, etc, for additional sums to be withdrawn for purchase of deficit court‑fee and as a matter of fact the deficit court‑fee had been filed much before the next date fixed for service of ‑the respondents and there was no question of gaining any advantage by disregarding the order of the Court for a trifling amount of Rs 158.12 as compared with the sum of Rs. 3,110.25 already paid :in the form of court‑fee stamp alongwith the plaint.

3. The order of the Court of 30th March 19 saying `file' is capable of two interpretations. Either the Court condoned the delay of six day impliedly and entertained the court‑fee as having been filed within time as no express order is necessary for extension of time which may even be implied ‑from the circumstances [see Boodh Raj and others v. Imam Din dad another (A I R 1932 Lah. 235)] or the application accompanying the court‑fee stamp remained on the record undisposed of. Admittedly the Court has jurisdiction to extend time under section 148 of the Code of Civil Procedure, even after the expiry of the period originally allowed, provided the party is not guilty of negligence or positive male f ides. It may be added that the argument that a party is .not to suffer for any act of the Court is applicable with full force because if the successor Civil Judge did not treat the order of 30th March 1971 .as an order impliedly extending the period and entertaining the court‑fee as within time, the failure of the Court to have passed a proper order at an earlier stage should not have been used to the prejudice of the appellant. As ,to the contention that the application of 30th March 1971 does not ask for :further time, suffice it to say that even an oral prayer could have been .sufficient to seek extension of period under section 148 of the Code of Civil Procedure all precedure is the handmaid of justice and is not to be applied to stifle justice. Malik Hadayat Ullah and 2 others v. Muraid Ali Khan (P L D 1972 S C 69) refers. There is nothing on the record to establish any deliberate and t .contumacious non‑compliance of the order of the Court or absence of good faith. Applying the law laid down by their Lordships of the Supreme Court an Shah Nawaz and 6 others v. Muhammad Yousaf and 3 others (1972 S C M R 179), approving of the principle laid down in the Full Bench decision of Jagat Ram v. Mirar Kharaiti Ram and another (A I R 1938 Lah. 361), the view taken by the trial Judge appears to be hyper‑technical and cannot be sustained. In the circumstances, it is a fit case for exercise of discretion under section 148 of the Code of Civil Proce dure. I accordingly hold that the deficiency in court‑fee has been duly made up.

4. The third contention raise is that even if it be held that deficiency in court‑fee had not been made up within time, the penal clause of Order VII, rule 11 (c) of the Code of Civil Procedure was not attracted to the facts of the case for the reason that the appellant was entitled to, get relief from the Court for the amount on which court‑fee had already been paid alongwith the plaint and its claim could have been reduced proportionately but certainly it was not a case for rejection of the plaint straightaway. Learned counsel fur the respondents has not been able to meet this argument and I have no hesitation in holding that even on this score the order of rejection of the plaint is infirm on the legal plane.

5. Before parting with the case, I may take notice of the argument that: by the time deficit court‑fee had actually been filed in Court, the plaint even if found to have not been filed with proper court‑fee initially, the suit being within time on the 30th of March 1971, the order under appeal merits setting aside. Since the question of limitation is not shown to be a pure question of law, I refrain from expressing any considered opinion an this aspect of the case.

6. For the reasons above, the appeal succeeds ‑ and is allowed with costs. The suit is remanded to the trial Judge for decision on the merits.. The court‑fee on the memorandum of appeal shall be refunded. K. B. A. Appeal accepted.