1998 PLP 1805 (CLC)

4. The learned Trial Court after framing as many as 8 issues in the case and recording evidence pro and contra, accepted the plaint on 27‑9‑1997 after having come to the conclusion that the plaintiff had visited the National Institute of Cardiovascular Diseases, Karachi by obtaining a certificate for treatment in a highly specialised cardio centre abroad and that the Government Policy regarding treatment abroad do not contain any prohibition over the treatment of Angioplasty at Government expense.

5. Not feeling satisfied, the Government of N.‑W.F.P. preferred an appeal before the learned District Judge, Peshawar on 18‑11‑1997. Application for grant of certified copy of the judgment and decree of the learned trial Court was submitted on 8‑10‑1997 and. the certified copy was provided to the defendant on 5‑11‑1997. Thus, the appeal was filed within time i.e. after 22 days. The appeal was placed before the learned District Judge, Peshawar on 19‑11‑1997, who entrusted the same to learned Additional Sessions Judge‑I, Peshawar for disposal. On receipt of the file, the learned Additional Sessions Judge on 21‑11 1997 admitted the appeal to regular hearing and also ordered the appellant (defendant) to affix proper court‑fee on the appeal on or before the date fixed. The case was posted for hearing on 29‑11‑1997 on which date though counsel for the appellant (defendant) was also present, but the directions of the Court had not been fulfilled by affixing either court‑fee on the memorandum of appeal or by presenting an application for extension of time. The learned appellate Court, therefore, adjourned the case to 1‑12‑1997 for passing appropriate orders in the case. On 1‑12‑1997 counsel for the appellant filed an application for seeking extension of time for doing the needful on the ground that due to inadvertance the appellant could not affix court‑fee on the memorandum of appeal. Counsel for the respondent (plaintiff) filed written reply to the application by contending therein that Court had already extended the time suo motu for affixing court‑fee till 29‑11‑1997 and the failure of the appellant to do the needful on or before the date fixed i.e. 29‑11‑1997 has resulted in accrual of valuable rights to the respondent which cannot be defeated. The learned appellate Court dismissed the application as well as appeal of the appellant vide impugned order dated 3‑12‑1997 by observing that the appellant has admitted in his application that due to inadvertance court‑fee was not affixed, which is not a valid ground for condonation or extension of time. Hence the present revision petition.

6. The admitted position in this case is that when the appeal of the appellant was entrusted to the Court of Additional District Judge, Peshawar, the same was admitted to full hearing on 21‑11‑1997 with directions to the appellant to affix proper court‑fee on or before the date fixed i.e. 29‑11‑1997. It is also no denying the fact that on 29‑11‑1997 when the case came up for hearing before the Court, the needful was not done by the appellant and still no court‑fee was affixed or paid. Even then the learned appellate Court adjourned the case to 1‑12‑1997 for appropriate orders but still the appellant did not comply with the directions of the Court and instead moved an application for extension of time on 1‑12‑1997. The said application was resisted by the respondent (plaintiff) by submitting written reply and arguments were also heard on the said application. It was after hearing the arguments of the learned counsel for the parties, when on the same date i.e. 1‑12‑1997 the appellant placed on file the court‑fee/Stamp Papers worth Rs.3,000.

7. Besides so many other rulings of the Superior Courts, the August Supreme Court of Pakistan has very exhaustively dealt with this question in an authority reported as Mst. Walayat Khatun v.. Khalil Khan and another PLD 1979 SC

821. The Honourable Bench has observed in the said judgment that section 28 of the Court Fees Act VII of 1870 and section 149 of the C.P.C. (Act V of 1908) lays down that a document is required to be properly stamped and no document which ought to bear the stamp under the Act shall be of any validity unless the Court orders that such document be stamped, if the Court thinks fit that such document be stamped and the Court, may, in its discretion, at any stage, allow the person, by whom such fee is payable, to make up deficiency of court‑fee. The Honourable Judges of the Supreme Court in the judgment have, therefore, held that it is a solitary provision which purports to cave suitors from drastic effects of a fiscal statute, where emphasis is more on realising of Government revenue than to punish suitors for honest delinquencies. It has been further held as under:‑‑ "However, this is only one side of the picture. In section 3 of the Limitation 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 therefor, 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. Dehra Dun Mussorie Electric Tramway Co. Ltd. AIR 1933 PC 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 the 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. If 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. " In the case of "Government of N.‑W.F.P. and others v. Gul Hayat and others 1989 CLC 2080 the learned Bench of this Court dismissed the .revision petition of the Government of N.‑W.F.P. with the following observations: "This is true but the judgment, a copy of which was filed with the appeal, clearly indicated the amount of decree to be Rs.38,239.34. For the same court‑fee was payable. It was not paid and when the lapse was detected it was fairly late and even if the appellants had supplied the stamps, they could not have got out of the bar of limitation. Rightly, therefore, the learned appellate Court had rejected the appeal on account of non‑payment of court‑fee. " The authorities reported in PLD 1981 Lah. 293 and PLD 1972 Kar. 103 can be cited with advantage to the Context

8. Now, applying the above principles on the facts and circumstances of this case it would be evident that the learned trail Court passed judgment and decree in favour of the plaintiff/respondent on 27‑9‑1997 and the defendant applied for grant of certified copy of the judgment on 8‑10‑1997 i.e. to say after 10 days of the judgment. The certificate copy was provided on 5‑11‑1997 and the appeal was filed on 18‑11‑1997 i.e. to say after 13 days. The learned appellate Court granted time to the appellant for affixing of the court‑fee till 29‑11‑1997 i.e. to say beyond the prescribed time of limitation, because the appellant was having only 7 days more, within which the appeal could be saved from dismissal on the point of limitation, if the court‑fee was affixed within that period. Anyhow, the learned appellate Court allowed in total 11 days requiring the appellant to affix proper court‑fee and if the appellant could have affixed the court‑fee, the memorandum of appeal could be deemed to have been filed on the date on which it was filed in the appellate Court. But it is not the case here. Even on 29‑11‑1997 the appellant failed to affix court‑fee, which he did on 1‑12‑1997 and that too when the Court had already heard arguments on the application of the appellant for extension of time This also points out to clear negligence of the appellant that if he .could be able to affix Court fee on 1‑12‑1997, he could have done so even before 29‑11‑1997 or at least on 29‑11‑1997 which was the last date of the extended period by the learned Appellate Court.

9. From the above, it can be safely said that the appellant/petitioner even remained negligent in spite of suo motu extension of time for affixing proper court‑fee on the memorandum of appeal and this act of the appellant can be a termed, in the circumstances of the case, as contumacious and careless of his duty in affixing proper court‑fee and the learned appellant Court was right in dismissing the appeal of the appellant on this score.

10. The appellant in his application for extension of the time besides alleging that inadvertently the court‑fee was not affixed, has also stated that some time is required for the arrangement of the court‑fee and in this respect a letter has already been issued to the concerned department. In my view, this is no excuse, for there is no difference between the Government and an ordinary litigant. Rather the Government enjoys much facilities than an ordinary litigant for the preparation and conduct of their cases. In the authority reported in 1996 SCMR 727 it has been held: "The Government cannot claim to be treated in any manner differently from an ordinary litigant. In fact, the Government enjoys unusual facilities for the preparation and conduct of their cases and its resources are much larger the those possessed by ordinary litigants, if in spite of these facilities the Government cannot comply with the requirement of the law of limitation, then it is for it to take steps to have that law changed. The litigant seeking condonation of delay must explain the delay of each day. The excuse that the matter got delayed because it remained under examination at different departmental levels was not a proper and satisfactory explanation for the delay of 36 days."

11. For the reasons stated above, I see no good ground for interference in the well‑reasoned decision/judgment of the learned appellate Court and while maintaining the impugned judgment, the revision petition is dismissed in limine. H.B.T./121/P Revision dismissed.