2024 PLP 1550 (MLD)

Muhammad Raza Qureshi, J.

Through this Civil Revision under Section 115 of the Code of Civil Procedure, 1908 ("C.P.C."), the Petitioner has challenged the Judgments and Decrees dated 19.09.2013 and 06.04.2016 passed by the learned Trial Court and the learned Appellate Court below respectively whereby the learned Trial Court dismissed the Suit filed by the Petitioner and upon an Appeal the learned Appellate Court below rejected the Appeal of the Petitioner due to non deposit of Court Fee.

2. Succinctly, facts giving rise to this Revision Petition are that the Petitioner filed a Suit for Possession under Section 8 of Specific Relief Act, 1877. The said Suit was valued at Rs.200,000/- and accordingly pursuant to direction of learned Trial Court ad-valorem Court Fee in the sum of Rs.15,000/- was affixed at the Plaint. The Defendant who contested the Suit, inter alia, objected the Suit valuation and consequently the learned Trial Court pursuant to divergent pleadings of the parties framed as many as 06 issues wherein the Issue with respect to Court Fee was framed as Issue No.4. The learned Trial Court upon adjudication of the matter decided the Issue No.4 in favour of the Petitioner/Plaintiff and determined that Court Fee of Rs.15,000/- is already affixed, however, upon evaluation of evidence led by respective parties the learned Trial Court dismissed the Suit filed by the Petitioner/Plaintiff pursuant to Judgment and Decree dated 19.09.2013.

3. The Petitioner being disgruntled challenged the Judgment and Decree passed by the learned Trial Court by instituting an Appeal and with respect to Court Fee in paragraph 10 of the Appeal prayed as under:-.

4. During the pendency of Appeal, the Respondents filed an Application for rejection of Appeal as despite seeking an opportunity, the Petitioner failed to affix the requisite Court Fee on the Appeal. The learned Appellate Court through Judgment and Decree dated 06.04.2016 rejected the Appeal filed by the Petitioner by holding that despite having knowledge, the Petitioner failed to affix the requisite Court Fee on memorandum of Appeal.

5. Learned counsel for the Petitioner submits that the learned Appellate Court erred in law and instead of passing a Judgment on merits opted to dismiss the Appeal on hyper technical plea of non-deposit of Court Fee. According to learned counsel actually no Court Fee is liable to be affixed on the memorandum of Appeal. At maximum, according to learned counsel, the learned Trial Court should have granted an opportunity to the Petitioner to make good the deficiency of Court Fee. According to learned counsel, the Impugned Judgments and Decrees are illegal and unlawful and the learned Appellate Court by rejecting the Appeal filed by the Petitioner had committed material irregularity. To support his contention, the learned counsel has placed reliance upon cases titled "Abdul Aziz and another v. Munir Hussain and others" (2010 SCMR 91), "Sultan Ali through Abdul Ghafoor and others v. Khuda Bakhsh and others" (2004 SCMR 742), "Muhammad Ejaz v. Mst. Shah Jahan and others" (2015 MLD 751) and "Muhammad Fiaz and another v. Ch. Yaqoob Hussain and another" (PLD 2010 Lahore 197).

6. Conversely, learned counsel for the Respondents has supported the Impugned Judgment and Decree passed by the learned Appellate Court by contending that on account of continuous default of the Petitioner in making good the deficiency of Court Fee, the learned Appellate Court had no option but to reject the Appeal. Learned counsel has placed reliance upon the provisions of Order VII rule 11 (c) C.P.C. by demonstrating the legal position that in the facts and circumstances the Plaint or Appeal are liable to be rejected. Learned counsel has placed reliance upon case titled "Assistant Commissioner and Land Acquisition Collector, Badin v. Haji Abdul Shakoor and others" (1997 SCMR 919) and "Qazi Muhammad Ilyas and 7 others v. Qazi Muhammad Raees and 3 others" (2014 CLC 160).

7. The arguments of learned counsel for the parties have been heard and record has been perused with their able assistance. The subject of determination of Court Fee to be affixed in Suit for Possession is governed by Section 7 of Court Fees Act, 1870 which is reproduced hereunder:-. (v) For possession of lands, houses and gardens. In suits for the possession lands, houses and gardens according to the value of the subject-matter, and such value stall be deemed to be: (i) For money: ............. (ii) For maintenance and Annuities: ........ (iii) For movable property having a market value: ....... (iv) .... (v) For possession of lands, houses and gardens. In suits for the possession lands, houses and gardens according to the value of the subject-matter, and such value shall be deemed to be: where the subject matter is land, and (a) . (b) (c) . (d .. (e) .

8. According to amendment for the Province of the Punjab the provision of Section 7 (v) of the Court Fees Act, 1870 stands substituted by Punjab Finance Act, 1973 (XIV of 1973) as under:-. v. In suits for the possession of land, houses and gardens- according to the value of the subject-matter; and such value shall be deemed to be- (a) Where the subject-matter is land and where net profits have arisen from such land during the year next before the date of presenting the plaint-fifteen times such net profits; (b) Where the subject-matter is land and where no such profits have arisen therefrom- market value of such land; (c) Where the subject-matter is a house or garden- according to the market value of the house or garden.

9. In the instant case the Petitioner throughout was aware of the quantum of Court Fee to be affixed at his Suit. It is also evident from paragraph 7 of the Plaint where the Petitioner himself had valued his Suit at Rs.200,000/- and affixed Court Fee in the amount of Rs.15,000/-, and the learned Trial Court correctly decided Issue No.4 with respect to the Court Fee against the Respondents.

10. Subsequently, in Appeal proceedings the Petitioner through paragraph 10 of memorandum of Appeal acknowledged his obligation to affix Court Fee for Rs.15,000/- and sought extension of time for making good the deficiency of Court Fee due to reason duly elaborated in the said paragraph.

11. In terms of law the paragraph 10 will be deemed to be an Application for extension in time for submission of Court Fee and the order sheet in the case reflects that the learned Appellate Court impliedly permitted the Petitioner by not insisting till passing of the Impugned Judgment and Decree to affix the Court Fee. The Petitioner from institution of his Appeal till passing of the Impugned Judgment and Decree by the learned Appellate Court had various opportunities to make good the deficiency of Court Fee. Firstly, at the time of filing of Appeal, Petitioner himself conceded to the fact of requirement of fixation of requisite Court Fee and sought extension of time with respect to making good the deficiency thereof. Secondly, an opportunity was granted to the Petitioner when the Respondents filed Application for rejection of memorandum of Appeal due to deficiency of Court Fee and instead of affixing the Court Fee he took a new stance, that too, contrary to his earlier legal position reflected in paragraph 10 of his Appeal, and asserted that no Court Fee is liable to be affixed on the memorandum of Appeal. Therefore, the Petitioner has no legal stand to persuade this Court that he was not granted ample opportunity to make good the deficiency of Court Fee.

12. So far as the contention that no Court Fee was leviable is concerned, this Court is not impressed with this argument as the position of law is absolutely clear and the knowledge of the Petitioner is duly verifiable from his track record where he himself valued the Suit and affixed the requisite Court Fee; instituted the Appeal and acknowledged the requirement of affixation of Court Fee but sought extension in respect thereof. Therefore, it appears that the Petitioner is blowing hot and cold in same breath i.e. on one hand he contends that an opportunity should have been granted by the learned Court below and on the other hand he attempts to twist the law by asserting that no Court Fee is liable to be affixed on memorandum of Appeal. These pleas are mutually destructive and are not tenable in the eyes of law.

13. It is to be borne in mind that the Court Fee is not meant to arm a litigant with a weapon of technicality against his opponent, but to secure revenue for the State, that is why, the Hon'ble Superior Courts of the country held that the policy of law, in matters relating to payments required to be made by a litigant by way of fee, fine or other deposits appears to point towards flexibility rather than rigidity. Substance rather than form is the underlying principle. This is an area of the law where the litigant is, in most instances, given leeway and shown flexibility to enable him to meet technical requirements, which had inadvertently, in ignorance or because of misconception or misrepresentation of the relevant provision of law remained unattended. But it is equally important that if a litigant demonstrates a continuous default towards payment of Court Fee or exhibits a delinquent conduct continuously in making good the deficiency thereof then obviously neither law nor equity or justice can grant him such premium and consequence of the provision of Order VII rule 11 (c) C.P.C. will come into play.

14. In the instant scenario, the case of the Petitioner clearly falls under the provisions of Order VII Rule 11 (c) C.P.C. as throughout he neglected or avoided the payment of Court Fee despite acknowledging its payability and quantum. So far as the case laws referred by the learned counsel for the Petitioner are concerned, those are distinguishable as in those cases, the Hon'ble Supreme Court of Pakistan and this Court held that a litigant must be confronted with the deficiency of Court Fee and be granted ample opportunity to make good its deficiency whereas in the instant case, the Petitioner himself acknowledged that the requisite Court Fee is payable and despite availing opportunities defaulted in payment thereof.

15. Therefore, the reliance is placed upon Judgment reported as "Assistant Commissioner and Land Acquisition Collector, Badin v. Haji Abdul Shakoor and others" (1997 SCMR 919) which is squarely applicable in the facts and circumstances of the case and it is held that the learned Appellate Court below was justified in concluding that the Petitioner was negligent and his conduct was contumacious and there existed no reason to show any indulgence to yet grant him an opportunity. In the said Judgment, the Hon'ble Supreme Court of Pakistan declared as follows: "Contumacy in the context is used in the general dictionary sense and not as a word of art. It means contempt of lawful authority, obstinacy, or stubbornness. It is not difficult to discover the connation of these attitude with the subject under discussion. If a plaintiff is allowed time to supply the deficiency in court-fee under Order VII, rule 11(c) as a matter of course and obligation (because, the rejection of plaint cannot take place without doing so) then in case he fails to do so, and asks for more time without some justification, it would amount to his being obstinate and stubborn in ignoring or denying the requirement and authority of law. The repetition of such a conduct would amount to contumacy. Similarly interpretation of this word in Sohara v. Rashid Ahmad (PLD 1981 Lah. 261) by Aftab Hussain, J., (as he then was), is approved."

16. In the facts and circumstances and what has been discussed above, this Court declares that there is no infirmity in the Impugned Judgment and Decree passed by the learned Appellate Court below as by passing the same, the learned Appellate Court had committed no material illegality.

17. The Civil Revision is devoid of merits which is otherwise, barred by 50 days and consequently, the same is dismissed with no order as to costs. MQ/M-230/L Revision Dismissed.