P L D 1983 Karachi 537 (PLP)

This second appeal under section 100, C. P. C. is directed against the judgment and decree dated 22-12-1976, passed by II Additional District Judge, Karachi, in Civil Appeal No 119 of 1975, dismissing the same on merits as well as on the ground that the same had become barred by time before the requisite deficit court-fee was paid. The facts so far relevant for the disposal of the appeal in the light of the contentions raised before me are as follows : The respondent/plaintiff filed a suit, being Suit No. 2079 of 1968, in the Court of Civil Judge, Karachi, for declaration that be, in his own rights as tenant, is the owner of the hotel known as Bombay Pakistan Hotel, situated at tenement No. K-9-A-6, Lea Market, Karachi, and the defendant/appellant being care-taker/manager/supervisor has no interest whatsoever, in the said hotel, its business and to the tenancy right in respect of the hotel premises, for physical possession of the hotel and premises and for mesne profits. The appellant in the written statement raised several pleas including the plea that he was the tenant of the respondent. The controversy between the parties is fully reflected by the. following issues framed by the Civil Judge in the suit: "(I) Whether the suit is undervalued ? (2) Whether the suit as framed is not maintainable ? (3) Whether the suit is barred by law of limitation ? (4) Whether the plaintiff is tenant of Messrs Nazar Ali & Brother, in respect of the premises in dispute at Rs. 180 p. m. ? (5) Whether the plaintiff handed over the exclusive business in the name and style of "Bombay Pakistan Hotel" in suit premises to the defendant ? (6) Whether the suit premises were sublet to the defendant in vacant condition without any (?) (7) Whether the plaintiff is entitled from the defendant for mesne profit. !f yes at what rate ? (8) To what relief, if any the plaintiff is entitled ? (9) What should the decree be ? The Civil Judge after recording evidence led on behalf of the parties decided all the issues in favour of the respondent and decreed the suit by the judgment dated 10-5-1975. Aggrieved by the judgment and decree, the appellant filed an appeal, being Civil Judge (Appeal No. 119 of 1975), which was dismissed by the judgment and decree dated 22-12-1976, now impugned in this appeal. It may be mentioned that on 10-5-1975, the appellant had applied for copies of the judgment and the decree which were supplied to him on 27-5-1975. It may further be mentioned that the decree was signed on 26-5-1975. The first appeal was filed on 30-5-1975, with a court-fee of Rs. 30 only. The office raised on 30-5-1975, several objections including the objection that the appeal should be properly stamped, which remained uncomplied until 10-7-1975, when an application under section 147, C. P. C. was filed. The contents whereof may be reproduced hereinbelow in extenso as the same have some bearing on. the contentions. They read as follows "That the appellant manages a small business in the shop premises involved in the subject-matter of this appeal. That the appellant suddenly fell seriously sick and could not attend his business affairs consequences whereof the same has suffered severely. That the court-fee amount required to be paid on the above appeal is presently beyond the means and capacity 9f the appellant. He, however, undertakes to pay the same within one month's time. It is, therefore, prayed that this Honourable Court may be pleased to allow the appellant to pay the deficient court-fee within one month's time from the date hereof and in the meantime the appeal may be admitted for regular hearing inasmuch as the decree-holder has filed an execution proceeding before the learned Lower Court." On this application the learned District Judge, called for R & P and ordered that the Advocate was to be heard on 12-7-1975. However, on 12-7-1975, court-fee stamp of Rs. 1,076.50 were deposited in the office of the Court. However, no further order appears to have been passed out this application on 12-7-1975, or on any date thereafter. The appeal was transferred by the District Judge to 11 Additional District Judge and was admitted by him on 15-7-1975, without adverting to the application under section 149, C. P. C. filed by the appellant or the question of limitation. At the hearing of the appeal an objection was raised that the same had become barred by time due to improper presentation of the appeal with a stamp of Rs. 30 only, which objections has been dealt with in the judgment now impugned in this appeal. Having stated the relevant facts, now, I proceed to examine the contentions raised before me by Mr. M. G. Dastgir learned counsel now appearing for the appellant and Mr. Nasiruddin Shaikh learned counsel for the respondent. It is contended by Mr. Dastgir that the appeal had not become barred by time when the deficit court-fee of Rs. 1,076.50 was paid, if time requisite for obtaining the copies of the judgment and the decree of the trial Court is excluded from the time taken in filing the appeal. Alternatively he contends that the court-fee having been paid on 12-7-1975, and accepted, the time must be deemed to have been impliedly extended under section 149, C. P. C. till that date. In support of this contention he relied on Qarum and others v. Dewa Singh and another (A I R 1934 Lah. 701), Singasan Tewari and another v. Gaya Tewary (A I R 1935 Pat. 201), Mst. Walayat Khatun v. Khalil Khan and others (PLD1979SC821). Taking up the first contention namely, that the appeal had not become barred by time it may be stated that it is well-settled that a plaint on memorandum of appeal cannot be treated as properly presented so long as the proper court-fee is not paid thereon. However, if any authority is needed reference may be bad to Ramzan and others v. Allahdiwaya and another (PLD1953BJ 45), H. H. S. Feldman v. The Province of East Bengal (P L D 1970 Kar. 295), Mst. Saddigunnisa v. Khan Sahib Agha Muhammad Sultan Mirza and 8 others (P L D 1972 Kar, 103) and Mubarak v. Phullan and 7 others (1980 C L C 485). In the third named case it was observed by Qadeeruddin Ahmad, J. (as he then was), who delivered the opinion of the Division Bench at page 104 of the report as follows "

5. It is obvious that a plaint or a memo. of appeal cannot be treated as properly presented so long as proper court-fee is not paid, therefore, in this case the appeal cannot be taken to have been instituted until the deficiency was made up on the 31st of August, 1964." Therefore, the first question for consideration is whether the appeal bad become barred by time or not when, on 12-7-1975, the deficit court-fee was paid. Mr. Dastgir stated that the appellant had filed an application for copies of the judgment and the decree on 10-5-1975, and the copies were supplied on 27-5-1975. Therefore, the time requisite in obtaining the copies was 18 days. He further stated that the decree was signed on 26-5-1975. He, therefore, submitted that besides 18 days the time from 10-5-1975 to 26-5-1975 (17 days) is also to be excluded. According to the learned counsel the time would run from the date of signing of the decree and he relied on The Government of West Pakistan, through The Chief Secretary, Lahore and others v. Niaz Muhammad (P L D 1967 S C 271). There is no dispute that the time up to the date of delivery of the copy of the decree is to be excluded so also the time up to the date of signing the decree, if the application for copy of the same was made before the date of signing the B decree. But there is neither any provision of law nor any authority that time is to be excluded twice. Indeed the reported cases are to the contrary. I1 may here refer to a judgment of S. Anwarul Haq, J. (as he then was) in Federation of Pakistan v. ASPI (P L D 1960 (W. P.) Kar. 562), wherein at page 567 observed as follows: "With respect I, am in agreement with the views expressed by the learned Judges of the Patna High Court. It is clear that what section 12 of the Limitation Act permits is the exclusion of the time requisite for obtaining a copy of the decree and a copy of the judgment. The period elapsing in-between the date of the pronouncement of the judgment and the signing of the decree is excluded for the reason that it must necessarily elapse before a copy of the decree can be granted. If during the same period an application for obtaining a copy of the judgment has also been made, then the period which is common in both cases can only be deducted once for the reasons pointed out by Benett" J., i.e. up to the signing of the decree the period of limitation is already standing still, and does not start to run again until the interruption is over. From the date of the judgment up to the date of the signing of the decree the time stands interrupted. If during this period there is another interruption due to the presentation of an application for a copy of the judgment or decree, such an interruption cannot have the effect of making the time run backward, so as to give the applicant the benefit of double deduction." To the same effect is the decision of Dacca High Court in Barda Prasanna Lod and others v. Kubbad Mid (P L D 1962 Dacca 381). It may be useful if I reproduce a passage therefrom which appears at pages 415 and 416, reads as follows "In the case before us the trial Court delivered the judgment on the 30th of April, 1956, and the decree was signed on the 11th of June???????? 1956. An application for copy of the judgment was made on the 18th of May, 1956 and another application for a copy of the decree was made on the 21st of May, 1956. The copy of the judgment was read on the 26th of May, 1956 and the copy of the decree was ready for delivery on the 13th of June, 1956. The appeal was filed in the Court of the District Judge, on the 13th of July, 1956. The day on which the judgment was pronounced (30th of April, 1956) is to be excluded in the first instance under . section 12 of the Limitation Act. Then a period for forty-four days, i.e. forty-two days from the 1st of???????? May, 1956, to the l1th of June, 1956 when the decree was signed, plus??????????? a further period of two days upto the 13th of June, 1956 when the copy? of the decree was ready for delivery, is to be added to the period-of thirty days prescribed under Article 152 of the First Schedule to the Limitation. Thus the appellant will get a total. period of seventy?????????? four days only. The time taken for the copy of the judgment (18th of May, 1956, to the 26th of May, 1956) and part of the time taken for the copy of the decree (21st of May, 1956 to the 11th of June, 1956) cannot be allowed twice over as these overlapping periods are already included within the period from the 1st of May, 1956 to the 13th of June, 1956 which is the time requisite for obtaining the copy of the decree. Taking seventy-four days as the period of limitation, after computation in terms of Article 152 read with section 12, the last date for filing the appeal before the District Judge was the 13th of July, 1956. The appeal has been filed on this date and roust, accordingly, be held to be in time." It is admitted that the time for filing first appeal under Article 152 of the Limitation Act is 30 days and if 30 days time is counted from 27-5-1975, when the copies of the judgment and the decree were supplied the same expired on 26-6-1975. However, since the Court was closed on 26-6-1975, for Summer Vacation the appeal could be filed on the reopening of the Court on 1-7-1975. But since the deficit court-fee was paid on 12-7-1975, therefore, there was not any properly presented appeal before the Court before the said date and the appeal bad already become time-barred. Now, reverting to the question that the Court by accepting the court-fee had impliedly extended time under section 149, C. P. C. I regret that I cannot accept the same for admittedly the court-fee was not accepted by the learned Judge. It was filed in a routine manner in the office and it was accepted only by the office. Further, the application for extension of time was already filed on 10-7-1975, before submitting the Court-fee, and the same was pending hearing, and on which no order whatsoever was passed. Nor does it appear from the record that the Court bad applied its mind at the time of admitting the appeal to the question as it has not adverted to the application or the question. In these circumstances or even otherwise there could not be any implied extension of time. I may here refer to the decision of this Court in H. H. S. Fidman v. The Province of East Bengal, wherein it was held that if the question of limitation was not examined by the admitting Court such question could be agitated at the time of hearing of appeal. Further, it was observed by Hamoodur Rahman, C. J., in Ahsan All and others v. District Judge and others of the report as follows : "We are unable to agree with this contention for section 29(2) of the Limitation Act itself provides that `where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefore by the First Schedule, the provisions 3 of shall apply, as if such period were prescribed there for in that Schedule.' The Displaced Persons (Compensation and Rehabilitation) Act, 1958, is undoubtedly a special law. It is clear, therefore, that whether the plea of limitation was raised or not, it was the duty of the Settlement Court, to notice the point of limitation. A waiver of the question of limitation is not permissible, even where the period of limitation is prescribed by a special or a local law. It has also been held by this Court in several cases that mere disposal of the appeal on merits is not sufficient to lead to the inference that the delay must have been condoned. There must be something in the order or judgment itself to show that the Court concerned was conscious of the fact that the proceeding was out of tire and had applied its mind to the question of limitation before dealing with .the proceeding on merits, vide Atta Ullah Malik v. The Custodan'of Evacuee Property and others P L D 1964 S C 236 ; Syed- Azmat Aid v. Chief Settlement and Rehabilitation Commissioner etc. P L D 1964 S C 260 ; and Muhammad Faroog Imam v. Claims Commissioner etc. P L D 1964 S C 585." Further, since the appeal had already become time barred and therefore, a right had accrued to the respondent to object to the application even if it could be argued by any process of reasoning that the time was extend impliedly. Here I may refer to a decision of the Supreme Court in Mst. Walayat Khatun v. Khalil Khan and another (P,L D 1979 S C 167), wherein it was observed that in cases where a party had acquired a vested right due to running out of the time of limitation for taking any proceedings, 'the discretion granted to the Court for extending time could not be exercised just in routine manner or mechanically without keeping in view and without taking into consideration the relevant facts. The relevant observations which appear at page 825 of the report may be reproduced hereinbelow with advantage "

3. The next point to be seen is whether in all cases a Court is first bound to grant time to a plaintiff to make up the deficiency in the court-fee under Order VII, rule 11(c), C. P. C. before proceeding to take any further action on an insufficiently stamped plaint. My answer is in the negative. And for this purpose I will divide suits or plaints into two categories. One category is where the plaint is filed well in time, and there is still some period of limitation left in favour of the plaintiff. In such a suit the Court is obliged and bound to grant time under Order VII, rule 11 (c), C. P. C. and the time granted itself should also be within the remaining period of limitation. This is a stage when the matter is solely between a subject and the State. However, if despite grant of such an opportunity the needful is not done the Court shall reject the plaint. The second category is that where on the date of grant of time the suit has already become time-barred, or where though the time was granted on a date when suit was within limitation but it. was granted or extended upto a date by which the suit will become time-barred. However, the matter is not confined solely between a subject and the State, because in such a situation a third person namely defendant has also in the meantime due to running out of the period of limitation in his favour acquired a vested right. These cases are distinguishable from the first category and are a class by themselves. These are to be regulated t y sections 148 and 149, C. P. C. which as is obvious authorise the Court to destroy the defence of limitation which may have become available to a defendant in the meantime. It is this category of cases in which a Court is not bound or obliged to grant time and nor is to be granted just in routine or mechanically but by keeping in view the consideration abovementioned." Now, I would take up the three cases cited by the learned counsel for the appellant. In the case of Qarum and others, alongwith the application for leave to file a Letters Patent Appeal, memorandum of appeal was also filed but without court-fee and on the granting of leave, court-fee stamps were affixed on the memorandum of appeal and the appeal was admitted. It was held that the delay, if any, in filing the appeal should be deemed to have been condoned. But in view of the observations made by the Supreme .Court and quoted hereinabove a distinction has to be made in cases where the matter is between the litigant and the State and cases where the matter is between the plaintiff/appellant and respondent/defendant and the claim or appeal had become barred by time. In the former cases time could be extended without hearing the party affected by the extension, but in latter cases delay could be condoned only after hearing the affected party and not impliedly. In this case I have already stated that the court-fee was accepted by the office and the learned Judge had not adverted to or applied his mind to the question of limitation and, therefore, there could not have been any implied extension nor the same could have been waived. Further, when the matter was brought to the notice of the Additional District Judge, he applied his mind and dismissed the appeal as being barred by time. Taking up Singasan Tewari and another v. Gaya Tewari it was observed by James, J., as follows:- "When the memorandum of appeal was rejected at once as a document insufficiently stamped and if he did not at once reject it, it was open to him to allow the deficit to be made good, whether the document had been accepted by inadvertence, or whether time had been expressly allowed under section 149, C. P. C., but in either event when he did allow the deficit to be made good within the period during which the question of the admission of the appeal was before him, the effect of acceptance of the deficit court-fee was that the memorandum of appeal must be treated as if it had been sufficiently stamped on the day of presentation." From the above observations it appears that this case is distinguishable on facts for in the present case the appellant's application was pending and the Court did not allow the appellant to make good the deficit court-fee. Mr. Dastgir also relied on the following paragraph, in Mst. Walayat Khatun's case, which appears at page 825: "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." If I examine the facts of the present case in the light of the observations I find the appellant had not made out any case for exercising discretion in his favour for granting extension of time, for the main ground mentioned in the application, was that the court-fee amount required to be paid on th appeal was then beyond the means and capacity of the appellant as hi business had suffered severely due to his illness. He had however, undertake to pay the stamps within one month. How, the poverty is not a ground for extending the time. See H. H. S. Feldman v. The Province of East Bengal, S. Majid Ali v. Mst. Isar Bano (A I R 1951 All. 64), Janaswami Venkataswamma v. Sri Prativad Bhayankaram Kangamaryakamma (A I R 1950 Mad. 796), S. M. Khatunnissa Bibi (A I R 1934 Cal. 659). In the first named case it was laid down by a Division Bench of this Court as follows : "It is well-settled that mere poverty or ignorance or inability to pay the full court-fee at the time of presenting a suit or appeal is not a ground for seeking indulgence of the Court under section 149, C. P. C." Even in the judgment cited by both the parties namely, Mss. Walayat Khatun v. Khalil Khan and another, it was observed by their Lordships of the Supreme Court as follows : "In this respect similarly proverty or ignorance will also be no excuse." Assuming that the appellant was unable to pay the court-fee on the ground that the same was then beyond his means and control, and that could be made a basis for extension of time, strangely the appellant had paid the court-fee within two days of the filing of the application without explaining how and wherefrom he had got the money, although he had asked for on month time. This belies the ground of poverty. Obviously, as mentioned in the application, the necessity of payment of court-fee had arisen because execution application was filed and the same was pending before the lower Court. Mr. Dastgir also pointed out that the appellant had also given as one of the reasons for non-payment of court-fee that the appellant had suddenly faller. seriously sick and did not attend his business affairs as consequence thereof the same had been suffered seriously. Indeed these averments have been made in order to raise the ground of alleged poverty. For all the aforesaid reasons I hold that the appeal filed by the appellant before the First Appellate Court was rightly dismissed as not being properly filed and having` become barred by time before the deficit court-fee was paid. So far as merits are concerned the counsel for the appellant submitted that the judgment is not in accordance with the provisions of Order XLI, rule 31, C. P. C. which provides that the judgment of the appellate Court must state the points for determination, the decision thereon and the reasons for such decision. No doubt the Additional District Judge, has not dealt with all the issue in accordance with the said prevision although he has stated that the counsel for the appellant had challenged the judgment impugned before him on all issues decided against the appellant. Indeed, I find that in the judgment he has referred to only the evidence of the appellant and has not discussed the evidence of other witnesses although 5 more witnesses were examined on behalf of the appellant and several on behalf of the respondent. Since however, I have found that the appeal was rightly dismissed on the question of limitation, therefore, no useful purpose will be served to examine the case on merits in great detail or remand the case to lower appellate Court to decide the same in accordance with the provision of Order XLI, rule 31, C. P. C. I therefore, dismiss the appeal with costs throughout. M.Z.M.??????????? Appeal dismissed.