P L D 1962 (W (PLP)

ANWARUL HAQ, J.

This further appeal by the defendants arises out of a suit for declaration that the plaintiffs had become owners of 319 kanals and 11 marlas of land situated In the area of village Dheri Zardad Khan, on account of adverse possession for more than twelve years. A prayer was also made for a permanent injunction restraining the defendants from interfering with the plaintiff's' possession. For purposes of jurisdiction the suit was valued at Rs. 4,090-5-0, whereas for the purpose of Court-fee the value was fixed at Rs. 10 and a Court-fee of Rs. 10 was paid. An objection was raised on behalf of the defendants that although the plaintiffs had sought the consequential relief of permanent injunction, they had not paid any Court-fee on It. This objection was incorporated in Issue No. I by the trial Court, and the discussion of this issue in paragraph 6 of the judgment of the trial Court shows that the position was not contested by the plaintiffs and they offered to value the relief of Injunction at Rs. 130 and to make up the deficiency of the Court-fee. The trial Court allowed three days for this purpose by its judgment dated the 18th of September 1958. The plaintiffs made up the deficiency of Rs. 10 that very day. On merits the trial Court accepted the claim of the plaintiffs, with the result that the suit was decreed in their favour.

2. The defendants filed on appeal in the District Court at Peshawar, paying only Rs. 10 as Court-fee on the memorandum of appeal. On behalf of the plaintiff-respondents an objection was raised that the memorandum of appeal was undervalued and the Court-fee paid thereon was deficient. The learned counsel appearing for the defendants urged before the learned District Judge that the undervaluation was the result of inadvertance for the reason that the heading of the decree-sheet showed the value for court-fee as Rs.

10. This plea did not find favour with the learned District Judge who observed that on the reverse of the decree sheet the calculation of costs showed Rs. 20 as Court-fee, and also in the copy of the judgment the value for purposes of Court-fee was clearly shown separately for the relief of declaration and of permanent injunction. He also observed that it were the defendants themselves who had objected to undervaluation of the plaint before the trial Court and, therefore, they were fully aware of the correct valuation. Holding that the deficiency in Court-fee was the result of negligence, the learned District Judge refused to extend time and dismissed the appeal.

3. It is urged by Mr. Allah Baksh, the learned counsel for the defendant-appellants, that the deficient Court-fee was paid by him under a bona fide mistake, resulting from -the fact that the heading of the decree-sheet showed the value for Court?fee as Rs.

10. He bad represented the defendants before the learned District Judge but not before the trial Judge. He admitted that if he had perused the reverse of the decree-sheet or the heading of the judgment, be would have discovered that the relief of injunction had been separately valued at Rs. 130 and that an additional Court-fee of Rs. 10 was required to be paid on the memorandum of appeal. He, however, submitted that the clients should not be penalised for his negligence, as he had acted in good faith, and that this was a fit case where the Court should have exercised its discretion in favour of the appellants under section 149 of the Civil Procedure Code.

4. Mr. Allah Bakhsh referred us to Jagat Ram v. Misar Kharaiti Ram and another (A I R 1938 Lah. 361) which is a decision by a Full Bench comprising Dalip Singh, Monroe and Din Muhammad, JJ., while dealing with section 149, Civil Procedure Code, their Lordships observed as follows :- "The discretion conferred on the Court by section 149 is normally expected to be exercised in favour of the litigant except 1n cases of contumacy or positive mala fides or reasons of a similar kind. The question of bona fides in this connection should be construed in the sense that the word is used in the General Clauses Act and not as used in the Limitation Act. A thing should be presumed to be done bona fide if it is done honestly whether it is done negligently or not, for the purpose of judging whether the discretion under section 149 should or should not be exercised in favour of the litigant."

5. On behalf of the plaintiff-respondent Mr. Pir Bakhsh Khan has argued that the deficient Court-fee in this case was paid deliberately, as would appear from the observations in the judgment of the learned District Judge that even up to the time of the full hearing of the appeal by him the deficiency had not been made good. It was further contended by the learned counsel for the respondents that, in any case, there was clear negligence on the part of the appellants, and in these circumstances the discretion exercised by the lower Appellate Court should not be interfered with by us.

6. On the facts of the case, we have no doubt whatsoever that the deficient Court-fee was paid on the memorandum of appeal due to a bona fide mistake on the part of Mr. Allah Bakhsh, the learned counsel who represented the defendants before the lower Appellate Court and who signed the memorandum of appeal, We have no reason to question his statement at the Bar that he was misled by looking at the heading of the decree?sheet. He has frankly admitted before us that he did not peruse the reverse of the decree-sheet or the heading of the judgment. This is not a case where insufficient Court-fee was paid con?tumaciously or deliberately or for any mala fide reasons. The question is whether under these circumstances the learned District Judge should have exercised his discretion under section 149 of the Civil Procedure Code in favour of the appellants or not.

7. If we follow the dictum of their Lordships in Jagat Ram v. Misar Kharaiti Ram and another, we are bound to hold that in the present case the discretion should have been exercised in favour of the appellants and not against them. Mr. Pir Bakhsh Khan, however, referred to several cases with a view to showing that negligence on the part of the appellant or his counsel was a sufficient cause for refusing to act under section 149 of the Civil Procedure Code. These cases may be briefly noticed.

8. The first case relied upon by the learned counsel for the plaintiff-respondents is Dalla Singh and others v. Umrao Singh and others (130 P L R Vol. XIV p. 463), in which it was held that "the discretion allowed to Courts by section 149 of the Civil Procedure Code for deficiency in Court-fee to be permitted to be made up at any time in the course of an appeal cannot be exercised In favour of an appellant unless he showed reasonable diligence in the prosecution of his appeal." In that case the appeal was filed on the 25th of October 1909, and a Court-fee of Rs. 25 only was paid as against Rs. 625 found due. That was the amount which the plaintiff?-appellant had himself paid in the trial Court. The memorandum of appeal was returned to the appellant by the Deputy Registrar of the High Court in order that he should complete the Court-fee but the memorandum was not refiled until after the lapse of one whole year i.e., the 25th of October 1910. The learned Judges held that "obviously the appeal is barred by limitation unless the appellant can satisfy us that he had sufficient cause for not paying the full Court-fee until the last-mentioned date." It seems to us that the facts of that case are clearly distinguishable from those of the instant case. There was no question of a bona fide mistake in that case ; on the contrary the conduct of the appellant would appear to be contumacious. We are, therefore, of the view that this case affords no assistance to the plaintiff-respondents.

9. The next case relied upon by Mr. Pir Bakhsh Khan Is Shahadat and others v. Hukam Singh (A I R 1924 Lah. 401) which, however, is not a case dealing with section 149 of the Civil Procedure Code, but with section 5 of the Limitation Act. It is clear that different considerations obtain under the Limitation Act in view of the peculiar definition of "good faith" given in that Act, which is different from the one embodied in the General Clauses Act.

10. In Mst. Noor Jana and others v. Mst. Chana (widow of Sher All Khan) and others (A I R 1943 Pesh. 43), the learned Judicial Commissioners refused to entertain that part of the second appeal in which the question of costs was raised by the appellants and did not agree to extend time for making good the deficiency in Court-fee, on the ground that there was clear negligence on the part of the appellants in not stamping the memorandum of appeal properly in the first instance. These observations of the learned Judicial Commissioners are embodied in the closing sentence of their judgment and there is no discussion at all of the principles which should obtain in connection with the exercise of discretion under section 149 of the Civil Procedure Code.

11. The learned counsel for the respondents then referred us to Saeed Ahmad and others v. Karam Singh and others (P L D 1949 Lah. 380). While dealing with section 148 of the Civil Procedure Code the learned Judges observed that "under section 148 Civil Procedure Code, the Court undoubtedly has discretion to enlarge time for the doing of any act allowed by the Code, even after expiry of the period originally fixed for the purpose, but it could not be said that where the plaintiff had plainly been so very negligent, and had, moreover completely failed to provide any excuse for his default that discretion had been properly exercised". While dealing with section 149, their Lordships made the following observations :- "The civil law leans always in favour of freedom of contract, and security of title. The statutory law of pre-emption con?stituted a draw-back on both these principles, and its provisions must, therefore, be construed and applied strictly against the claims of pre-emptors. The discretionary power given to the trial Court by section 149, Civil Procedure Code, as it fell to be exercised in the circumstances of the present case was in effect a power to extend limitation. It must be held that, specially where the suit is one for pre-emption, the discretion conferred by section 149, Civil Procedure Code, needs to be exercised with the greatest care, where extension of limitation is also involved. Any acts mistaken or otherwise of the litigant, or matters affecting his condition, for example, poverty or physical inability, can hardly be adduced as "sufficient cause", when account is taken, on the other hand, that by lapse of time, the vendee's title in the property has become secure from attack by a pre-emptor." A perusal of the judgment of their Lordships makes it clear that the case before them was not one of a bona fide mistake on the part of the plaintiffs ; on the contrary it was a case where time had been allowed twice for making up the deficiency. Their Lordships were also Influenced by the fact that the plaintiffs were seeking to enforce the right of pre-emption "which is predatory right and the exercise of which should be strictly in accordance with legal requirement." However, their Lordships observed that "it is not possible to lay down the limits within which the dis?cretion conferred by section 149 of the Civil Procedure Code may be exercised in favour of the litigant, each case will need to be considered in the light of its own special circumstances." It will be seen, therefore, that this case is not an authority for holding that the discretion conferred by section 149 of the Civil Procedure Code should not be exercised in favour of an appellant, even If he has acted under a bona fide mistake, using that phrase in the sense of an honest mistake.

12. Incidentally, this case provides an effective answer to the contention of Mr. Pir Bakhsh Khan that the High Court should not interfere with the discretion already exercised by the learned District Judge in this matter, or rather his refusal to act under section 149 of the Civil Procedure Code. The following observa?tions of their Lordships in the above cited case are directly relevant in this behalf "There can be no manner of doubt that an appellate Court has power to review an order made by an inferior Court in the exercise of discretion under section 149, Civil Procedure Code. It is always open to a superior Court in appeal to correct the exercise of such discretion where it had been wrongful, in that no weight, or insufficient weight, has been given to relevant considerations, although the appellate Court must, of course, refrain from interfering merely because it would itself have exercised such discretion differently had it been dealing with the case."

13. We were next referred to Ghulam Sarwar Khan v. Government, N.-W. F. P. and another (P L D 1955 Pesh. 8). The head-note of this case read as follows: "When the non-payment of the requisite Court-fee on the memorandum of appeal and the copies of the decree-sheet and the judgment was deliberate, and due to the negligence of the law officers of the Provincial Government and the appeal was filed on the last day of limitation, held, that there was no legal appeal filed by the Government and the learned District Judge was absolutely wrong in exercising his discretion under section 149, Civil P. C., in favour of the Government. Where the Court is authorised to exercise a discretion, then the elementary principle of law is that the discretion should be exercised not capriciously but judicially and with proper care and caution."

14. It is not certain whether this decision is still good law because we were informed that this judgment had been reversed in appeal by the Supreme Court. Unfortunately, the judgment of their Lordships of the Supreme Court does not appear to have been reported in the Law Journals nor is it available in the office. The only papers available are : (a) order of the Supreme Court dated the 6th of November 1956, granting special leave to appeal to the Government of West Pakistan, which was the party aggrieved by the order of the High Court, and (b) a copy of the decree of the Supreme Court dated the 6th of February 1960, showing that the appeal was accepted. However, in the body of the judgment delivered by Muhammad Shafi, J., in the High Court, the following observations appear :- "There can be no manner of doubt as is clear from the words used in section 149, Civil P. C., itself, that the question under that section is one of the Court's discretion and not that of the appellant's right. Where the Court is authorised to exercise a discretion, then the elementary principle of law is that the discretion should be exercised not capriciously but judicially and with proper care and caution. Such discretion can in no case be exercised in favour of a party, who has not acted bona fide, i.e., who is not under any honest mistake or doubt, or who has not made an honest attempt to comply with the law." It can be gathered from these remarks that the learned Judge accepted the existence of a bona fide mistake as a sufficient reason for the exercise of discretion under section 149 of the Civil Procedure Code.

15. The next case relied upon in this connection by Mr. Pir Bakhsh Khan is Sultan Muhammad v. Muhammad Yusuf and others (P L D 1959 Pesh. 120) and the following observations appearing in the head?note will suffice :- "Comparing section 28 of the Court Fees Act, 1870, with section 149, Civil Procedure Code, 1908, it is clear that while the first deals with a mistake or inadvertance on the part of the Court officials, the second is a general provision very wide in scope, which gives a discretion to the Court to allow the plaintiff to pay the Court-fee within a certain time, and upon such payment having been made, the plaint has the same force and effect as if the fee has been paid In the first instance. The 'discretion' given In both these sections must necessarily be used judiciously, that is to say, only if the Court is satisfied that some grounds exist for the exercise of the 'discretion' and a bona fide mistake has been made in the valuation. In the very nature of things the discretion exercised one way or the other by a Court of law is subject to scrutiny by the superior Court." It may be remarked that this is a Division Bench decision and the leading judgment is written by Muhammad Shafi, J., who decided the case cited as Ghulam Sarwar Khan v. Government, N.-W. F. P. and another, while sitting as a Single Judge.

16. The last case is Raghunandan Sahay and others v. Ram Sundar Prasad (A I R 1925 Pat. 299), which was cited mainly to support the pro?position that the discretion exercised by the lower Appellate Court should not be interfered with. The rule formulated by their Lordships is to the following effect :- "Questions like the exercise of discretion under section 148 or 149, Civil Procedure Code, should be left to the discretion of the trial Court and In the absence of a very strong case, the Appellate Court must not interfere with the trial Court's discretion."

17. A perusal of the authorities noticed above leaves us in no doubt that the principles enunciated by their Lordships of the Full Bench in Jagat Ram v. Misar Kharaiti Ram and another still hold good, if we may say so with respect. Cases where negligence of the appellant or his counsel was penalised are distinguishable, as those were not cases of a bona fide or honest mistake as to the valuation of the suit ; but were cases which involved a deliberate or contumacious default on the part of the appellant. The authorities seem to be consistently of the view that a bona fide mistake In the matter of valuation should be condoned. It is A also equally clear that the High Court will interfere where the lower Courts have not exercised their discretion in a proper manner or in accordance with correct principles.

18. We have already observed that the case before us is a case of a bona fide mistake as to valuation on the part of the appellant's counsel, and, therefore, the learned L istrict Judge should have exercised the discretion vested in him under section 149 of the Civil Procedure Code in favour of the defend?ant-appellants. He has clearly noted on a wrong principle, and we would be justified in setting aside his order. The result is that we accept the appeal, set aside the judgment and decree of the learned District Judge and direct that an opportunity should now be given to the defendant-appellants to make good the deficiency of Court-fee in the lower Appellate Court, and the appeal should be beard on merits by the learned District Judge, Peshawar. The respondents shall pay the appellant's costs in this Court. A. H.??????????????????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.