1980 PLP 1124 (CLC)

CH. RAHIM DAD KHAN, C. J.

This appeal by leave is directed against the judgment and decree of the High Court whereby the appeal filed by Mohammad Boota appellant (minor), through ,his mother, was dismissed on 19th October 1977, for failure to make up the deficiency in the court-fees within a period of one week as required under an earlier order dated 18th July 1977, It arises out of a pre-emption suit that was instituted by Mohammad Boota, present appellant, to pre-empt the sale of land, detailed in the plaint. The suit was decreed in his. favour by the trial Court which passed a preemption decree in favour of the plaintiff on payment of Rs. 1,

600. On appeal the preemption amount was increased to Rs. 6,000 by the District Judge; Mirpur, vide his order dated 16th June 1977. The second appeal filed by the pre-emptor, for reduction of the amount on payment of which the right of preemption could be exercised, was rejected by the High Court on the ground that it was insufficiently stamped. The appeal was presented on 14th July 1977 on which day it was adjourned to 18th July 1977. The learned Chief Justice on 18th July 1977 directed for making up the deficiency within a week but as the deficiency in court-fees was no made up by 25th July 1977, the day so fixed, the appeal was adjourned by the Registry to 19th October 1977 for proper order of the Court on which date the appeal was dismissed in spite of the fact that the appellant's counsel offered to make up the deficiency in the court-fees on that very day. It is not clear from the order of the High Court as to how much deficiency of the court fees was involved that was to be made up by the appellant.. It is not stated in the appeal even as to hoax much pre-emption amount was sought to be reduced by the pre emptor but when the memorandum of appeal is read as a whole it can be gathered that preemptor wants a reduction of Rs. 4,401 in the pre-emp tion amount though the prayer in the second appeal is for setting aside the finding of the Court of the first appeal on the question of pre-emption amount which was increased by the impugned order. Thus the valuation of the appeal for the purpose of jurisdiction may be estimated at Rs. 4,

400. The appeal presented before the High Court carried on it a two rupees adhesive stamp; as such there was clearly a deficiency in the court- fee. Section 4 of the' Court Fees Act, which is a charging section, prohi bits a court from receiving, recording or filing a document which is either unstamped or insufficiently stamped as required in I or II Schedule of the Act. Section 4 of the Court Fees Act enacts as under; "No document of any of the kinds specified in the First or Second Schedule to this Act annexed, as chargeable with fees, shall be filed, exhibited or recorded in, or shall be received or furnished by, any of the said High Courts in any case coming before such Court in the exercise of its extraordinary original civil jurisdiction ; or in the exercise of its extraordinary original criminal jurisdic tion ; or in the exercise of its jurisdiction as regards appeals from the judgments (other than judgments passed in the- exercise of the ordinary original civil jurisdiction of the Court) of one or more Judges of the said Court, or of a Division Court ; or in the exercise of its jurisdiction as regards appeals from the Courts subject to its superintendence ; or in the exercise of its jurisdiction as Court of reference or revision; unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said schedules as the proper fee for such document." The provisions of this section are mandatory in their character but for proper appreciation it is necessary to examine also the pertinent provisions 'of section 149 and Order VII, rule II of the Civil Procedure Code. There fore they have to be read alongwith Section 4 of the Court Fees Act section 149, C. P. C. says that "where the whole or any part of any fee prescribed for any document by the law for the time being in force relat ing to court-fees has not been paid the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, or the case may be, of such court-fee; and upon such payment the document, in respect of which such fee is payable, shall have the same if such fee had been paid in the first instance." Order VII, rule 11, C. P. C. enacts as follows :-- "Rejection on plaint.

The plaint shall be rejected in the following cases :

(a)

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so ; (c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so ' (d)

The combined effect of Order VII, rule 11 and section 149, C P C is that in a case of an insufficiently stamped plaint or document the Court must first grant time to make up the deficiency. In case the party fails to comply with the requisition then it is open to the Court to reject the plaint at any stage of the suit or to receive the fee afterwards. There is not controversy as regards to the grant of the time to make up the deficiency. In fact the time was granted in the instant case and the appeal was' dismissed when the appellant failed to make up the deficiency. The point that requires determination in the instant case is whether the time granted was sufficient in the circumstances of the case and when the, appellant was willing to make up the deficiency on the subsequent date, fixed by the office, whether the learned Single Judge was justified in dismissing the appeal. Besides, in view of the; value of the appeal being more khan Rs. 1,000, the appeal, under Rules of the High Court, could be heard by a Division Bench alone as such it was not open to the learned Single Judge to reject the document on the ground of insufficiency of the court-fee after receipt of the same on presentation. A similar question came up before a Full Bench of Allahabad High Court in a case entitled Mst. Shahzadi Begum v. Alakh Nath and others (A I R 1935 All. 620) wherein Mr. Justice Sulaiman, at page 625 of the report, observed as follows :

"So far as the deficiency in the amount of court-fee paid is concerned, the position seems to be this. The learned Judge before whom ill is sought to be presented may decline to receive the appeal altogether on the ground that it is insufficiently stamped. He would be perfectly justified in doing so in view of the provisions of Section 6, Court Fees Act, under which no document of any kind chargeable in the First or Second Schedule of the Court Fees Act, shall be filed, accepted or recorded in any Court of Justice or shall be received or furnished by' any public officer unless in respect of such document the court-fee has been paid in full. It is therefore open to a Single Judge to decline to receive the document which is insufficiently stamped on the ground that he cannot receive it. But where the document has been received and has been accepted as having been properly presented, a Single Judge should not reject the document later on, on the ground of insufficiency of court-fees, unless the mat ter were within the jurisdiction of a Single Judge. If a Division Bench alone can reject the appeal on the ground of insufficiency of court-fees, then the matter should be laid before such a Division Bench." The order of the learned Chef Justice of the High Court, therefore, cannot be maintained on this short ground alone. Still it would be useful to examine other points involved in the matter. It is a well settled law that the Court Fees Act is a fiscal enactment. Its primary object is to protect the State revenue. It is not to be used to coerce the subject. Rather; it should always be construed in favour of a subject as far as possible like any other enactment that imposes a burden on the subject and even the provisions of Civil Procedure Code should not be applied in a way as to deprive a litigant of his substantive right on technical grounds particularly in an ideological State, like Azad Kashmir, which is fighting for liberation of Jammu & Kasmir and for establishing an Islamic State and its accession to Pakistan. In an Islamic State dis pensation of justice is a sacred obligation of the State for discharge of which obligation no court-fee is to be charged. A right of appeal is not purely a matter of procedure ; 'it is a substan tive right. This right of appeal becomes vested in a party when proceed ings are first initiated and before decision is given by the inferior Court. Such a vested right should not be taken away except by an express enactment or necessary intendment', nor a fiscal enactment should be used in a way to deprive a subject of his right'. Section 149, C. P. C and Order VII, rule 11, C.P.C. give wide powers to an Appellate Court to grant time to the applicant to pay the requisite court-fee on the memorandum of an appeal. These powers of granting time, no doubt, are discretionary but discretionary powers are knot to be exercised in an arbitrary manner so as to deprive a litigant of his valuable right. In Rooke's case ((1598) 5 Co. Rep. 99b) it is observed that discretion means when it is said something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinion ; according to law, and not humour. It is to, be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit to which an honest man competent to the discharge of his office ought to confine himself." The first appellate Court decided the appeal on 16th June, 1977. The appeal was presented before the High Court on 17th July, 1977 and the order for making up the deficiency, within a week, was given on 18th July, 1977. The learned Single Judge omitted to take into consideration the fact that appellant Muhammad Boota was a minor who had filed appeal through a next friend. The plaintiff comes from border village of Tehsil Bhimber District Mirpur. It would have been more proper, in the interest of justice as well as State, if a longer time was provided for making up the deficiency. The appellant at that time had still about two months at his disposal for filing an appeal ; 90 days being- the period for second appeal under Article 156 of the Limitation Act. As such, with due deference, it would be said that the discretion in fixing a period of one week ; then to postpone the decision to a date after expiry of the period of limitation in the circumstances of the case, was not judicially exercised. Moreover, it is always open to the Court to enlarge the time fixed by it for payment of deficit court-fee from time to time even without any express order. In view of the fact when the appellant had offered to make up the deficiency on that very day, there was no justification in the circum stances to reject the memorandum of appeal on the plea of failure to make up the deficiency in court-fee within a week-the time originally fixed. No doubt, a valuable right does accrue to the respondent of which he should not be deprived lightly ; but this proposition would not hold good and should not be employed where the Court itself did not provide reasonable time to the appellant particularly when there was still sufficient time for filing the appeal. As such equities were in favour of allowing appellant to make up the deficiency on that day. There are number of authorities in favour of the proposition that refusal to take the deficit court-fee amounts to abuse of the powers of the Court. In Komakhya Dat Ram v. Shyam Lal and others (A I R 1927 Oudh 507) it was observed that "Courts and rules of procedure regulating their conduct are intended for facilitating justice and not for its impediment". In that case refusal to take deficient court-fee for delay-by one day was held to be an abuse of the powers of the Court. In the instant case the prayer for deposit was rejected because the appellant failed to make up the deficiency within a period of one week-originally fixed. In Adit Prasad Singh v. Ramharakh Air (A I R 1925 Pat. 435 (2)) a Division Bench case, where the suit was dismissed for failure to deposit the deficit court-fee it was held that 'the suit must be restored to file'. In Basavayya and others v. Mittapalli Venkatappayya and another (A I R 1926 Mad. 676) it was clearly laid down that "the Court must fix a time within which the deficient court-fee shall be paid and has no discretion to refuse to fix it. The Court also has discretion to extend the time already fixed. Section 149 implies that Court may, in its discretion, at any stage, allow to party to pay the deficient court-fee. But this will not override Order VII. rule 11, in the sense that section 149 gives the Court any discretion to refuse to grant the time which Order VII, rule 11, says it shall grant- When the party pays beyond the time, fixed and has not asked the Court to extend the time for payment, but the Court neverthe less, excuses the delay and receive the fee, the only reasonable interpre tation is that the Court has implicitly, although not explicitly, extended the time. (20 C W N 615, Ref.). Under section 1-49 Court has discretion lo accept payment after the time fixed". In "Nandkishor v. Jionath and others (A I R 1926 Nag. 312) it was observed that "a Court has power to extend the time for the payment of deficient court- fees on a plaint". We can also gather some indirect help from "Hassan Bakhsh and others v. Syad Afzal Shah and others (1974 S C M R 364). In that case in spite of three extentions the appellant failed to make up the deficiency in court-fee the Supreme Court refused to give further adjournment but at the same time grant of adjournments by trial Court were neither dis approved nor objected too. On the basis of above discussion we are of the opinion that the dis cretion vested in the Courts to reject a suit or a memorandum of appeal for failure to make up deficiency in Court-fees should be exercised not arbitrarily or in a fanciful manner but in a judicious manner keeping in view all the circumstances of a case so as to advance the ends of justice and if necessary, period originally granted for making up deficiency, may be extended in the interest of justice. All the rules of procedure, after all, are meant for dispensation of justice and not for its impediment or depriving a rightful person of his right on technical grounds. The learned Single Judge, was not justified, in the present case, to dismiss the appeal when the respondent offered to make up the deficiency on that very day. For the foregoing reasons we accept the appeal, set aside the order of rejection and remand the case to the High Court with the direction that it may be restored on its original number and after providing a further opportunity to the appellant for making up the deficiency in the court-fee the appeal may be decided afresh. M.Y.M Appeal accepted.