2017 PLP 88 (CLCN)

CH. MUHAMMAD MASOOD JAHANGIR, J.

This revision petition has arisen out of a pre-emption suit. It would be advantageous to express a little milieu of the case. The land in dispute measuring 08 kanals was sold out by Khalid Mansoor, real brother of the petitioners to respondents for an amount of Rs.600,000/- through mutation No. 1260 dated 05.04.2013. The petitioners by bringing their suit on 08.05.2013 pre-empted the sale and in paragraph No.12, they assessed the value of the suit equivalent to 30 times of revenue of preceding year, which being not determined, the value for the purpose of court fee was fixed at Rs.500/-, whereas an application was going to be moved for determination of produce index units and any deficiency of court fee would be made good. It appears that while admitting the suit, the Presiding Officer himself or concerned official of the court did not conduct proper scrutiny to ascertain whether plaint was duly stamped or not. This suit was definitely revisited by respondents and with regard to non-affixation of proper court fee, a specific objection was also raised by them. While facing with the contest, learned Trial Court while framing necessary issues invited the petitioners to examine their evidence and in meantime on 21.05.2015 on a vocal objection, learned Trial Court without specifying or determining the exact amount of deficiency directed petitioners to furnish stamps of court fee according to produce index units up till 10.06.2015. For ready reference this basic order of learned Trial Court in verbatim is reproduced hereunder:- Verily, this order was not honoured and the learned Trial Court adjourned the matter to 01.07.2015 for the same purpose but on the said date, judicial officer was on leave and it was again adjourned to 06.07.2015 when while invoking jurisdiction under Order VII, rule 11(c) of the Civil Procedure Code, 1908, the plaint of the suit of petitioners was rejected for non- payment of court fee. Despite challenging the same, petitioners remained unsuccessful before learned Lower Appellate Court, when their appeal was also dismissed through the impugned judgment and decree dated 06.01.2016. Hence, the instant civil revision.

2. The headmost emphasis of learned counsel for petitioners is that in case of deficiency in the court fee, the court was required to specify exact amount of deficiency, which the petitioners were required to make up and on the basis of such defective order dated 21.05.2015 without specification of the real amount of deficiency while granting time to make up dearth, no penal action was required to be taken against the petitioners and the impugned orders being result of material irregularity, illegality and wrong exercise of jurisdiction cannot be sustained. He has supplemented his submissions while relying upon dicta laid down by the Full Bench comprising five honourable Judges of the apex court in case reported as Sardar Noor Ahmed Yar Jang v. Sardar Noor Ahmed Khan (PLD 1994 Supreme Court 688).

3. Conversely, on their turn, learned counsel for respondents have supported impugned orders on the ground that it was a case where petitioners failed to affix court fee of the value prescribed under the Court Fees Act at the time of institution of suit for which time was also awarded to them and it was their bounden duty to themselves calculate the value of the suit for the purposes of court fee according to law applicable on the day of institution of suit, but they intentionally failed to do so, therefore it was not a case where court was under obligation to specify the amount at which the suit should have been valued for afore-referred purpose. They while relying upon the dicta laid down in Mubarak Ahmad and 2 others v. Hassan Muhammad, through legal heirs (2001 SCMR 1868) and Riffat Iqbal v. Mst. Fatima Bibi, etc. (2007 SCMR 494), submitted that case in hand is classic example of failure of the petitioners to discharge their legal obligation and it being contumacy act on the part of petitioners, both the courts below rightly non-suited the petitioners through verdicts impugned herein, which need no interference by this court in the exercise of revisional jurisdiction.

3. Arguments of learned counsel for the parties considered in relation to the facts and circumstances of this case and the relevant law.

4. Sole question to be resolved is, whether the deficiency in court fee on the asking of respondents could be made a ground for rejection of plaint. Suffice it to say that subject sale was effected on 05.04.2.013 whereas the suit was instituted on 08.05.2013, much prior to the expiry of prescribed limitation of four months and definitely it was the duty of ministerial staff of the learned Civil Court to pinpoint non-payment as well as deficiency of court fee, who having failed to discharge the said effective order could be passed at the relevant time for the petitioners to make up deficiency of court fee. The said objection was also raised by respondents through their written statement, but without attending to the same, learned Trial Court felt it proper to frame the issue and when issues were framed, then without answering the same in either way after examination of evidence, the learned Trial court in midway required the petitioners to make up the deficiency without specifying the exact amount. The respondents in the case in hand have not disputed the fact that jurisdiction of the learned Trial Court to adjudicate upon the suit and order passed thereon was not affected adversely on account of non-payment of court fee. Therefore, to my mind, the basic order for rejection of plaint, despite the fact that petitioners did not pay the requisite court fee is fully protected by the mandate of section 99 of the Code of Civil Procedure, 1908 and plaint could not be rejected on the ground of mere error or irregularity, which was not affecting the merits of the case or jurisdiction of the court. For ready reference section 99 of the Code ibid is reproduced hereunder:- "No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction. No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court." While keeping in mind, the mandate and scheme of the afore-noted provision, the apex court in a case reported as Qazi Shams-ur-Rehman and another v. Mst. Chamam Dasta and others (2004 SCMR 1798) laid down as under:- "This Court in the case of Muhammad Swaleh PLD 1964 SC 97 has held that every irregularity or illegality in exercise of jurisdiction will not render the order of Court void and without jurisdiction. Any party aggrieved of such irregularity has to further show that there was such violation of statutory provision which rendered proceedings coram non judice. It is a known principle of law that a procedural irregularity cannot be allowed to stand in the way of justice unless the irregularity has caused a serious miscarriage of justice."

5. To my knowledge the mother judgment on the subject, rendered by Full Bench comprising five judges of the apex Court is Siddique Khan and 2 others v. Abdul Shakur Khan and another (PLD 1984 SC 289), which still holds the field wherein after thorough visit to the provisions of the Court Fees Act, 1870 as well as sections 148 and 149 of the Code of Civil Procedure, 1890, it was observed that matter requiring court fee was purely of fiscal nature and under section 12(ii) of the Court Fees Act, the revenue in case of deficiency could be collected even by the Appellate Court without resort to the dismissal of the plaint as barred by law. It is only the contumacy of a party, which could damage him for non-compliance with the order/demand of court fee if while granting him time he was directed to furnish specified stamps. In the said authoritative judgment, it was further concluded that section 10 of the Court Fees Act was confined to a limited field while sections 12 and 28 thereof were of wider application and that consequences of payment or non-payment within the time fixed was of similar import regarding the advantage of serving process or losing it for non-prosecution and sections 148 and 149 of the Code of Civil Procedure, 1908 would apply thereto them as proviso. Undeniably, it is clear that Order VII, rule 11 of the Code ibid puts an obligation to reject the plaint where court fee is deficient, but prior to applying the same it is sine qua non for the court to direct the party concerned to make up the specific deficiency of court fee within the time to be prescribed. In the case in hand, admittedly, the learned Trial Court without calculating the exact amount of deficiency in court fee has non-suited petitioners, which is against the dicta laid down by the apex court in the following pre-emption cases:- i) Muhammad Nawaz Khan and another v. Makhdoom Syed Ghulam Mujtaba Shah and another (PLD 1970 SC 37); ii) Noor Muhammad v. Hassan Muhammad (1986 SCMR 1345) iii) Muhammad Bashir and another v. Syed Altaf Hussain Shah through his Legal Heirs and 5 others (1990 SCMR 3) iv) Muhammad Iqbal and others v. Abdul Hamid (1991 SCMR 978) v) Sakhi Muhammad and 9 others v. Hakim Ali and 14 others (PLD 1992 SC 404) and vi) Sardar Ahmed Yar Jang v. Sardar Noor Ahmed Khan (PLD 1994 SC 688) In Muhammad Nawaz Khan's case (supra) it was concluded in bottommost as under:- "Apart from these weighty judgments it would, indeed, be anomalous if limitation is not saved in case 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, but 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. This will offend against the rule of harmonious construction. The provisions of Order VII, rule 11 and section 149 are, therefore, to be read together. Consequently where the plaintiff is required to correct the valuation of the relief claimed in the suit, he shall further be required to supply the requisite stamp paper and on compliance it shall have the same force and effect as if such fee had been paid in the first instance." Similarly; in Noor Muhammad's case, (supra) identical proposition arose and the apex court resolved the same to the following effect:- "In this case it is not denied that the actual amount of the court-fee was never specified by the court although if the petitioner had obtained Naqsha Paidawar the same could have been utilized by the court for determining the court-fee and then directing the petitioner (plaintiff) to make the deposit on or by a certain date. This was not done. It is also clear from the case law relied upon by the learned counsel that the question of limitation in reality does not arise in this case because when time is allowed under Order VII, rule 11 or is extended under any relevant provision of law, the period of limitation gets extended automatically. No suit can be dismissed on the ground of limitation in circumstances like those of the present case. It has been fully made clear in the case of Siddique Khan already cited as PLD 1984 SC

289. Learned counsel for the respondent remained unable to meet the arguments of the learned counsel for the petitioner which have been stated above. He only mentioned that the petitioner was in possession of the Naqsha Paidawar since 11.11.1974. Even if that is so, it was the duty of the court to utilize that Naqsha Paidawar for determining and specifying the required court-fee and then directing the plaintiff to make the deposit by a certain date under O. VII, Rule

11. It was only on failure thereof that the plaint could have been rejected or time could further be extended under other provision of law."

6. The august Supreme Court of Pakistan in the above cited case law has already laid down without any ambiguity that without recourse to the provision of Order VII, rule 11 of the Code of Civil Procedure, 1908, no punitive action could be taken against the petitioners without determining exact deficiency of court fee. The case law referred to by learned counsel for respondents with all respect being not applicable to the facts of case in hand cannot be given preference over judgments of the same court rendered by its larger Benches. Therefore, this Civil Revision is accepted, impugned order and judgment of the courts below being result of material irregularity and wrong exercise of jurisdiction are set aside and suit of petitioners will be deemed to be pending before the learned Trial Court, who while determining the exact amount of deficiency of court fee will grant specified time to the petitioners to make it up within prescribed time and in case of compliance as required, the suit will proceed, otherwise the law will take its own course. The parties are directed to appear before the learned District Judge, Faisalabad on 05.12.2016, who will entrust the main suit to the court of competent jurisdiction for further proceedings. ZC/R-23/L Case remanded.