1988 PLP 1711 (CLC)

AHMED ALI U. QURESHI, J.‑‑This High Court Appeal is directed against the order dated 21‑1‑1986 passed by the learned Single Judge of this Court, whereby he rejected the plaint of appellant under Order VII, Rule 11, C.P.C. The plaint was rejected by the learned Single Judge on the ground that the appellants had not obtained sanction of the Advocate‑General for filing suit against the two of the trustees namely, Parsram and Haresh.

2. In the instant case admittedly the memorandum of appeal was filed with court‑fee of only Rs.5. With the memo of appeal the learned counsel for the appellants moved an application bearing Civil Miscellaneous Application No.556 of 1986 for permission to file the appeal 'in forma pauperis'. However, this application was not pressed and was disposed of as not pressed vide order dated 19‑5‑1986 and instead an application under section 149, C.P.C. bearing Civil Miscellaneous Application No.662 of 1986 was moved alongwith court‑fee stamp of Rs.15,000 seeking permission of the Court to pay maximum court‑fee. This application was allowed vide order of this Court dated 8‑9‑1986 subject to the just exceptions and objections raised or may be raised by the respondents at the time of hearing of the main appeal.

3. Preliminary objection was raised by Mr. Syed Abbas Zia, learned counsel for the respondents that the appeal is barred by limitation as the court‑fee on the memo of appeal was admittedly paid by the appellants after the period of limitation had expired. Reliance was placed on the case of Mst. Walayat Khatun v. Khalil Khan and another P L D 1979 SC

821. Their Lordships, while discussing the implication of Order VII, Rule 11(c), C.P.‑C. alongwith sections 148 and 149, C.P.C., made the following observations:‑ "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. 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, and 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 upto a date by which tie 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 authorised 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."

4. Reliance is also placed on a Division Bench judgment of this Court in the case of H . H . S . Feldman v . Province of East Bengal PLD 1970 Kar.

295. It was held therein that 'where Court admits deficiently stamped appeal and allows deficit court‑fee to be paid, but subject to any objection by the respondent at the time of hearing of appeal, the question of limitation, in the circumstances, could be agitated at the time of hearing of appeal". It was further held that "permission for payment of deficit court‑fee could not be claimed as a matter of right, but was the discretion of the Court not to be exercised arbitrarily or capriciously, but judicially and with utmost care. Mere poverty, ignorance or inability to pay full court‑fee at the time of presenting appeal were not sufficient grounds." It is contended that in the instant case also the appellants had pleaded poverty and inability to pay the court‑fee.

5. Reliance is also placed on the case of Seth Hafiz Abdul Aziz Youbfani & Sons v. Haji Ali Muhammad & Co. P L D 1968 Kar.

883. It was held by a learned Single Judge of this Court as under:‑

"It is true that till a pauper application is dismissed, the Court has seisin of the case, and has therefore, the power to pass orders to extend time. But the power conferred whether under Order XXXIII or under section 149, C.P.C. is a discretion which has to be exercised judicially. If a plaintiff has filed a pauper, application dishonestly, the Court should not allow him extension of time, and if time is extended as a matter of course, such an order defeats the provisions of section 149, C.P.C."

6. Reliance is also placed on the case of Muhammad Ghaffar v. The State 196P S C M R 12 wherein their Lordships held that "poverty of petitioner and his difficulty in making arrangement for filing of petition was no ground for condonation of delay".

7. Mr. Gulab M. Rang learned counsel for the appellant has argued that as the appeal was filed in time, the memo of appeal cannot be rejected nor the appeal can be dismissed on the ground that court‑fee was not paid within the period of limitation. In support he has relied upon the case of Siddiq Khan v. Abdul Shakur Khan P L D 1984 SC

289. The questions for consideration before their Lordships in the aforesaid case were, amongst others; (1) whether Order XLI, Rule 3 could be read with Order VII, Rule 11(c) and sections 107 and 151 C.P.C. and accordingly the appellate Court could also, like the trial Court require the supply of deficiency in court‑fee under Order VII, Rule 11(c), C.P.C. with consequences accordingly? (2) Whether appeal could not have been rejected as time‑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. Mohammad Yousaf and 3 others 1972 S C M R 179 a party was found guilty of 'contumacy' or 'positive mala fide' in paying deficient court‑fee. Their Lordships have extensively quoted and discussed the different viewpoints expressed by the various superior Courts in Indo‑Pakistan sub‑continent and have resolved the difference of opinion holding as under:‑

"Rule 3 of Order XLI provides for the rejection of appeal on non‑compliance 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 (of 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 virtue 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 'hereinbefore' has also been used in this context in Rule 3 in 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 11 which relates to the drawing up for the plaint on a properly stamps paper as an essential 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 P L D 1964 SC 520 and the Province of East Pakistan v. Mohammad Hosain Mia P L D 1965 SC 1, 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 '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 on the subject under discussion. See also Muhammad Yaqub v. Chairman, Election Tribunal, N.‑W.F.P. P L D 1976 SC 625, wherein provisions of Order XXXIX, Rules 1 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 11(b)(c) to appeal 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 VII, Rules 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 11(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 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 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."

8. In the aforesaid case the case of Mst. Walayat Khatun v. Khalil Khan was also considered and their Lordships observed as under:‑

"Before proceeding further so as to comment upon the case of Mst. Walayat Khatun it is necessary to clarify another confusion regarding interaction 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 before 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 been 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 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 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 he 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."

9. Their Lordships have further discussed and distinguished the case of Mst. Walayat Khatun and have held that "law laid down by this Court in the cases of Muhammad Nawaz Khan and Shah Nawaz would continue to hold the field and would continue the law declared notwithstanding the judgment in the case of Mst. Walayat Khatun". The case of Muhammad Nawaz Khan, reported in P 1, p 1970 SC 37, has been referred to by their Lordshins in the case of Siddique Khan and have observed as under:‑-- "The following weighty findings and observations in the case of Mohammad Nawaz Khan are to be clearly understood and reiterated:‑ (a) It would indeed be anomalous if limitation is not saved incases 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; 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;" In the case of Shah Nawaz, reported in 1972 S C M R 179, their Lordships have reproduced the rule laid down in the case of Mohammad Nawaz Khan and have provided the following two guidelines regarding the 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." Thus, the law laid down by their Lordships can be summarised as under:‑ (a) That the provisions of Order VII, Rule 11(c), C.P.C. are applicable to the appeals. (b) That the time to pay deficient court‑fee should automatically be enlarged under section 149, C.P.C. unless the plaintiff is guilty of contumacy or he has acted in a positive mala fide manner.

10. In the instant case the main ground that the appellant has urged for not paying the court‑fee alongwith the memo of appeal, is that he had paid Rs.15,000 court‑fee in the trial Court and was, therefore, not in a position to pay immediately so much amount as court‑fee alongwith the memo of appeal. The poverty or inability to pay court‑fee has been held not to be cogent ground for extension of time for payment of deficient court‑fee, but could it be said that the appellant is guilty of any contumacy or has acted in any mala fide manner? 11, Word 'contumacy' has been defined in Black's Law Dictionary (Fifth Edition) to mean "refusal or intentional omission of a person to obey some lawful order or direction made in the cause". Word 'mala fide' has been defined in the said Dictionary to mean "bad faith. The opposite of bona fides." Word 'bona fide' has been defined in the said Dictionary to mean "in or with good faith; honestly, openly; and sincerely, without deceit or fraud".

12. The record shows that when the memo of appeal was presented, the Deputy Registrar vide his order dated 19‑2‑1986 directed the respondent to pay ad valorem court‑fee, which in the instant case is Rs.15,

000. Instead of paying this fee the appellant moved an application in forma pauperis on 20‑2‑1986 and in support thereof in the affidavit he claimed to be a pauper. This application was pending and was being adjourned at the request of appellant till 19‑5‑1986, when it was dismissed as not pressed and another application Civil Miscellaneous Application No.662 of 1986 under section 149, C.P.C. was moved alongwith court‑fee of Rs.15,

000. In support of his application Civil Miscellaneous Application No. 556 of 1986 in affidavit the appellant claimed to be a pauper. Respondent Tirathdas filed additional affidavit on 17‑4‑1986 alongwith which he filed photostat copy of the Rejoinder, filed by the present appellant in Suit No.149 of 1972. This Rejoinder was filed on 17‑11‑1982. In this Rejoinder the appellant had shown that he was a big landlord and also Commission Agent and had some Partnership business in which they carried on business to the extent of Rs.4,00,00,000 but later on he left the partnership because of heavy income‑tax. He has also stated that he has got shops in Shahi Bazar Naukot from where he was getting income of Rs.30,000 per annum.

13. It appears that after production of this Rejoinder the appellant did not press his application for leave to appeal in forma pauperis and paid the court‑fee and also moved an application under section 149, C.P.C. This conduct of the appellant cannot be considered as bona fide or based on good faith. He, therefore, appears to be guilty of contumacy and has also acted in mala fide manner. As such as held by their Lordships in the aforesaid case of Shah Nawaz, the Court may refuse to exercise its discretion under section 149, C . P.C. in enlarging time for payment of court‑fee.

14. Mr. Gulab M. Rang learned counsel for the appellant has argued that under Article 17 of the Court Fees Act, a fixed court‑fee of Rs.10 was payable as the suit was filed under section 92, C.P.C. and he could apply to the Court for the withdrawal of the court‑fee paid in excess by the appellant in the trial Court as well as in this Court. We need not go into this discussion as it would be decided as and when such application is moved. The fact, however, remains that the suit was valued at Rs.15,000 in the trial Court for the purpose of court‑fee and such court‑fee was also paid. As such same court‑fee will be payable in appeal which was not paid on institution of the appeal.

15. We have already held that the appellant is guilty of contumacy and has also acted in mala fide manner by dishonestly moving the application for leave to file appeal in forma pauperis and has paid the court‑fee subsequently after expiry of period of limitation. As such the preliminary objection raised by Mr. Syed Abbas Zia learned counsel for the respondent has great force and the appeal is not maintainable and is liable to be dismissed. In view of the above findings we need not go into the merits of the case. We accordingly dismiss the appeal, but under the circumstances, order the parties to bear their own costs. A. A./M‑517/K Appeal dismissed.