1991CLC1655 (PLP)

This Regular Second Appeal was filed on the 29th of April, 1975, against the judgment/decree dated the 15th of April, 1975, of the learned Addl. District Judge, Mianwali. Court‑fee worth Rs.15.00 was paid on the memo. The Office objected to this valuation for court‑fee on the ground that under section 7 (v) of the Court Fees Act, as amended by the Punjab Finance Act XIV of 1973, it should have been the value of the subject‑matter of the suit. The appellants did not accept correctness of the objection reiterating that the fixed court‑fee worth Rs.15.00 was enough and that the Punjab Finance Act XIV of 1973 related to suits rather than appeals. Ultimately, the matter was placed before the Registrar in his capacity as Taxing Officer who, vide his order dated the 7th of May, 1975, upheld the objection directing the appellants to pay court‑fee within thirty days on the value of the subject‑matter of the appeal. The appellants challenged the order of the Taxing Officer in a writ petition filed on the 13th of May, 1975. It was dismissed on the 24th of January, 1977, and even a Civil Petition for Special Leave to Appeal filed against it on the 2nd of February, 1977, was finally dismissed on the 21st of November, 1983. The Supreme Court, however, did not suspend operation of the order of the Taxing Officer. Meanwhile, the appellants made an application on the 2nd of March, 1977, before the High Court seeking permission to file the deficient portion of the court‑fee and, in fact, filed the same that very day, of course, subject to any objection of the opposite party.

2. The respondents raised a preliminary objection that the court‑fee paid on the 2nd of March, 1977, much beyond the period of thirty days prescribed by the Taxing Officer was of no consequence and that the appeal was hit by limitation. Reliance was placed by them on Tej Ram, etc. v. Maqbul Shah, etc. (A I R 1928 Lah. 370 (371) stating that the order of the Taxing Officer could not be upset by the Court.

3. In reply, Malik Mohammad Nawaz, Advocate for the appellants sought support from Mrs. Momtaz Malik v. The Taxing Officer (Registrar, High Court), etc. (P L D 1966 S C 753) for the view that the order of the Registrar was not of the Court for the purpose of section 9 of the Court Fees Act and that instead it should have been an order of any Judge of the Court.

4. It was a case in which the Taxing Officer finally determined the amount of court‑fee payable on the memo. of appeal. He even gave a grace period of thirty days for paying the same but the appellants somehow did not avail the opportunity. Counsel claimed that although the Taxing Officer could finally determine the fee payable, yet he was not the Court in terms of section 10 (ii) of the Court Fees Act for giving an obligatory adjournment to enable the appellants to pay up the deficient portion. He emphasized that the High Court as per its definition contained in Article 192 of the Constitution of the Islamic Republic of Pakistan, 1973, consisted of a Chief Justice and the Judges of the Court and, therefore, the obligatory adjournment for making good the deficiency, had to be allowed by a Judge of the Court. He added that since no such adjournment' was granted by any Judge, they could not be visited with the dismissal of the appeal merely because they failed to comply with the direction of the Taxing Officer.

5. The contention that the Taxing Officer was not the Court could not indeed be disputed. The authority relied upon by the learned counsel for the appellants fully supports it, but there is another aspect which certainly calls for a little deeper attention. The Court‑fees Act is divided into Chapters. Chapter II deals with "Fees in the High Courts" while Chapter III deals with "Fees in other Courts and in Public Offices". It is abundantly clear that the provisions of sections 6 to 19 covered by Chapter III would not be applicable to the High Court which contrarily shall be governed by Chapter II specifically captioned for it. Chapter II has no provision like section 10 (ii) requiring an obligatory adjournment to enable the party concerned to pay the court‑fee. The entire discussion in Siddique Khan, etc. v. Abdul Shakur Khan, etc. (P L D 1984 S C 289) appeared to hinge round Chapter III especially section 10 thereof holding that after determining the valuation for court‑fee, it was indispensable to adjourn the case at least once with a view to afford opportunity to the party concerned to clear the fiscal liability. It would be appreciated that Chapter II dealing with "Fees in the High Courts" did not enjoin adjournment of a case for the peculiar purpose. Any order of the Taxing Officer under section 5 ibid, is final as held in the Mrs. Momtaz Malik's case. Even the Court cannot ordinarily upset it. The inference obviously was that the party concerned had to comply with it. Since this Chapter did not visualize adjournment, there was no vested right for the party concerned to claim it. Section 4 falling in this Chapter was very relevant. It peremptorily enacted that "No document of any of the kinds chargeable with fees, shall be filed, exhibited or recorded in, or shall be received or furnished by, any of the High Courts in any case coming before such Court in the exercise of any of its jurisdictions. Elaborating this provision in Chief Inspector of Stamps, U.P. Allahabad v. Mrs. Panzy Feruandas, Major widow of H. Jhonson (A I R 1964 Allahabad 66), the Full Bench took the view that since the memo. of appeal was properly stamped, the "appeal as presented was entertainable and should not be thrown out in limine under S.4 of the Court Fees Act ....". The observation obviously implied that in a converse case where the memo. of appeal may not be bearing the necessary court‑fee, it may be "thrown out in limine under S.4 of the Court Fees Act". Further, in a series of cases, namely Brijbhukhan, etc. v. Tota Ram etc. (A I R 1929 All. 75), Shri Krishna v. Sm. Saraswati Devi (A I R (37) 1950 Allahabad 499), and S.Wajid Ali v. Mt, Isar Bam Urf Isar Fatma (A I R (38) Allahabad 64), it was expounded that the High Court .had full power to refuse to accept the memo. of appeal when it: appeared that the amount of the court‑fee paid was insufficient; otherwise, the provisions of section 4 of the Court Fees Act would be evaded. Likewise, it was pronounced in Atmaram v. Singhai Kasturchand (A I R 1930 Nag. 224) that the Court would be justified in rejecting a memo. of appeal ii filed with a court‑fee of eight annas where it should have borne court‑fee amounting to Rs.90.00 as the appellant should at the time of filing the appeal determine whether he should incur the expenses or not. The tenor of these decided cases clearly established that the Court could reject a memo. of appeal in limine in case it did not bear the requisite court‑fee. In none of these cases it was suggested that the Court, as distinguished from the Taxing Officer, should grant time by adjourning the proceedings for receiving the deficient portion of the court‑fee. Thus, it may not be possible to assert that the High Court is bound to adjourn the case obligatorily. In the Chief Inspector of Stamps, U.P. Allahabad's case at page 69 it was thought that even if the Full Bench decided that the court fee paid was insufficient, the case would have gone back to the Single Judge for consideration of the question whether time should be given to the appellant to make up the deficiency. This enunciation contained in itself the possibility of the Single Judge granting or refusing to grant adjournment for making good the deficiency. This again will be an indicator that in the cases falling under Chapter II, the High Court could refuse what has been elsewhere described to be an obligatory adjournment.

6. Coining to the case in hand, I could find little reason to allow the appellants an adjournment which would be purely ex gratia. They contested the office objection; got the matter referred to the Taxing Officer; challenged his decision in a writ petition; and lastly, went to the Supreme Court where too they failed to drive home their point. They should have known that the order of the Taxing Officer in regard to the quantum of the fee payable on the memo., was final. In spite of it, they had the cheek to call it in question up to the highest Court of the country. They did not avail even the grace period allowed to them by the Taxing Officer though stricto senso the same was not supported by any provision of Chapter II of the Act. They were supposed to have known that the entire Chapter did not provide for allowing them a compulsory adjournment for the purpose and indeed should have been doubly cautious to utilize the first ever available opportunity to pay up the fiscal duty. I do not think by their typical conduct, they could claim indulgence of an adjournment by the Court which on its own side was not equipped with the necessary power by any of the sections contained in Chapter II. The rule expounded in the case of Siddique Khan, etc., of course, could not be invoked before the High Court as it was evolved in circumstances relating to payment of court‑fee before "other Courts". In the alternative, counsel urged that once the Taxing Officer gave them a period of thirty days, they were entitled at least to the un-expired portion thereof on equitable grounds. Various dates have to be kept in view. The Taxing Officer passed the order on the 7th of May, 1975, which was assailed in the writ petition by the appellants filed on the 13th of May, 1975, and dismissed on the 24th of January, 1977. Even if it be accepted that the order dated the 7th of May, 1975, remained under suspension during the period of pendency of the writ petition, that is till the 24th of January, 1977, there was no reason for allowing them any concession for the time taken by them till the 2nd of March, 1977, when they filed the deficient portion of the court‑fee. They had already allowed to pass away five days before filing the writ petition and took additional thirty‑six days when they filed the court‑fee on the 2nd of March, 1977. All told they took forty‑one days. The un-expired period of twenty‑five days, commencing after dismissal of the writ petition taking place on the 24th of January, 1977, expired on the 18th of February, 1977, but they filed the court‑fee on the 2nd of March, 1977, that is eleven days later. There was no explanation for this delay which should have been guarded against rather with greater vigilance as the appellants were fighting on wrong premises. As a consequence, even the so‑called un-expired period calculated above cannot be conceded to them primarily because (i) the Taxing Officer had no authority to extend time; (ii) any such extension was against the vested right of the opposite party of insisting upon rejection in limine of the memo. of appeal under section 4 of the Act; and (iii) even the Court itself as per Chapter 11 ibid. was not clothed with authority to allow such extension. A fortiori the objection to the entertainability of the memo. of appeal was well‑placed and accepting the same, the memo, is rejected. H.B.T/S‑912/L Memo of appeal rejected.