1980 PLP 1788 (CLC)

S. 149--Deficiency in court-fee-Discretion of Lours, exercise of Discretion of Court, held, not to be exercised arbitrarily or capriciously but judicially and with utmost care.- --[Court-fee] (g) Civil Procedure Code (V of 1908)- S. 149

Deficiency in court-fee-Discretion of Court, exercise of-Normally discretion of Court to be exercised in favour of litigant except in cases of contumacy or positive mala fide or negligence.- [Court=fee]. Land Acquisition Collector, Rawalpindi v. Lt.-General Wajid Ali Khan Burki P L D 1961 Lab. 1029 ; Shad Muhammad Khan and others v. Abdullah Jan and others P L. D 1962 Pesh. 142 ; Mst. Niaz Begum v. Zari Jan and others P L I> 1966 Pesh. 51 ; Shah Nawaz and 6 others v. Muhammad Yusuf and 3 others 1972 S C M R 179 and Wali Muhammad v. Farooq Ahmad PLD 1980BJ9ref. (h) Civil Procedure Code (V of 1908)

O. VII, r. 11 read with S. 149-Court-fee--Deficiency-Question if appellant be allowed to pay up deficiency in court-fee-Held, essentially a question of fact according to circumstances of each case.-[Court-fee-Question of fact]. (i) Civil Procedure Code (V of 1908)- S. 149-Deficiency in court-fee--Exercise of discretion--Decided cases proceeding on their own facts, held, not of much help except as indicating generally principles to be borne in mind in exercising discretion under S. 149, C. P. C.-[Court-fee]. Saeed Ahmed v. Karam Singh P L D 1949 Lah 380 ref. (j) Civil Procedure Code (V of 1908)- S. 100-Exercise of discretion-Deficiency in court-fee-Application for orders directing revenue authorities to prepare statement of net profits from land during year preceding filing of appeal made after two weeks of date of raising of objection by plaintiff=respondent. and application for permission to make good deficiency in court-fee made after one week of preparation of statement-No explanation forthcoming as to why appellant could not have acted promptly, after having formal notice of objection regarding memorandum of appeal being insufficiently stamped-Appellants, held, guilty of negligence verging on contumacy-Appellants, held further, failed to make out a case for exercise of discretion in their favour depriving plaintiff respondent of a valuable right accrued by lapse of time. Mian Munawar Hussain for Appellant. Bashir Ahmed, Attorney of respondent 'No: 1 with Ch. Muhammad Nazeer Ahmed for Respondents. Date of hearing : 9th March, 1980. This second appeal has arisen in the following circumstances : Meh: Shah respondent (2) sold his 2/15th share of land in Khata No. 5 measuring 127 kanals and 18 marlas in Chak No. 14; M, Tehsil Lodhran, District Multan, in favour of his cousin: Budhan Shah and Waris Shah appellants herein for an ostensible consideration of Rs. 32,000 by means of mutation attested on 18-6-1971. Mst. Shamshad Begum respondent (1) a real sister of the vendor, respondent (2), filed suit for possession of the land in exercise of right of pre-emption asserting her preferential right for the purchase of land qua the vendee-appellants. She also disputed correctness of sale price stated in the mutation. The plaintiff-respondent maintained that the bargain was in fact struck at Rs. 10,

000. The plaint was for the purposes of court-fee valued at Rs. 200 ten times the amount of revenue payable on the land in terms of clause (v) of section 7, Court Fees Act. The appellants contested the suit on the grounds among others that the -plaint was under valued, the suit was under the bar of limitation, civil Court lacked jurisdiction for the suit and the pre-emptive rights of the plaintiff-respondent were also denied. The plaintiff respondent succeeded on all the issues excepting issue No. 10 relating to the sale price of the land and was on 8-9-1973 awarded decree conditional on payment of Rs. 32,000 by or on 1-10-1973. Meanwhile, section 7(v), Court Fees Act was amended during pendency of the suit by means of Punjab Finance Act No. XIV of 1973 which came into force with effect from 1-7-1973. The amount of court-fee in such cases was made assessable on the amount equivalent to 15 times of the net profits accruing from the land during the preceding year. Appeal was filed before learned District Judge, Multan on 5-10-1973 to challenge decree of learned trial Court in favour of respondent (1) with a court-fee stamp of Rs.

115. On 7-5-1976, counsel for the plaintiff-respondent raiwd an objection that the memorandum of appeal was not properly stamped. The case was adjourned to 8-6-1976 for arguments. On 21-5-1976 the appellants applied before learned Additional District Judge who was seized of the appeal for orders to the revenue authorities for preparation of statement of net profits from the land. The requisite statement was prepared on 28-5-1976 and net profits from the land were assessed at Rs. .2,520.59. Court-fee leviable or. memorandum of appeal thus exceeded Rs..2,

800. The court-fee already paid was, therefore, grossly deficient. A day before the date to which the appeal was posted to hearing of the objection raised on the side of respondent (1) the appellants filed an application under section 149, Civil Procedure Code for permission to make good deficiency in the court-fee stating therein that court-fee was paid on the memorandum of appeal in accordance with the valuation of the suit for the purposes of court-fee as shown in the decree sheet. The office nor the plaintiff-respondent (I) had raised any objection for a long time. The appellants were not guilty of negligence and were entitled to an opportunity to make up deficiency in the court-fee. The application which was contested by the plaintiff-respondent was rejected by learned Additional District Judge. As I see the impugned order he was not convinced that omission to pay proper court-fee was attributable to a bona fide mistake on the part of the counsel and the appeal was also dismissed as not properly stamped.

2. Learned counsel for respondent (A I R 1936 Pesh. 140) had at the outset raised a preliminary objection that appeal to challenge order. of learned Additional District Judge rejecting the application under section 149, Civil Procedure Code for permission to supply deficiency in the court-fee was not competent. Reliance was placed on the judgment from the Court of learned Judicial Commissioner, Peshawar, in Wukarab Khan v. Rab Nawaz Khan and others (1). The contention does not have much force in it. In the precedent case the plaint was filed with a court-fee stamp of Rs. 10 which was held to be sufficient by the trial Court but the suit was dismissed upon merits. On appeal before learned District Judge, the point regarding court-fee was raised for the second time who held that the court-fee was deficient and directed the plaintiff-appellant to put in necessary court-fee within four days, The order was not complied and the appeal was dismissed. It was held in the second appeal before learned Judicial Commissioner that rejection ref memorandum of appeal on the ground that deficient court-fee had not been paid is not a decree and no further appeal lay from it. As said above, learned Additional District Judge had also dismissed the appeal as not properly filed. In cases where the memorandum of appeal is not properly stamped the appeal is not rejected because of insufficiency of court-fee but it is dismissed on the ground of limitation. The order of learned Additional District Judge had the effect of denying right of hearing to the appellants and that of confirming the decree of trial Court. The order was, therefore, a decree and second appeal was competent under-section 100, Civil Procedure Code. The view which I take is well supported by the judgment of Division Bench of this Court in Muhammad Latif v. Mst. Ghulam Fatima (P L D 1955 Lah. 487). It was held in that case that every order of an Appellate Court by which relief granted by the trial Court is confirmed, varied or withdrawn would be a decree. The objection is overruled.

3. The appellants were obliged in taw to file memorandum of appeal affixing the court-fee in accordance with amended law that had come into force before right of appeal had accrued to them. The proposition of law that the provisions in Order VIl, rule 11 Civil Procedure Code under which a plaint could not be rejected for insufficiency of stamp unless the plaintiff was given opportunity to make good deficiency within a period to be fixed did not apply to appeals does not admit of any controversy. Appellant cannot' claim as of right that the appeal which is under stamped cannot be dismissed unless he was allowed opportunity to make up the deficiency. Memorandum of appeal if unstamped or insufficiently stamped will, therefore, fall to be dealt with under section 149 of the Civil Procedure Code which empowers the Court in its discretion at any stage to allow the appellant to supply the deficiency in the court-fee and upon such payment, the memorandum of appeal shall have the same force and effect as if such fee had been paid in the first instance. It was held by Division Bench of this Court to - Balrvant Singh v. Jajit Singh (A I R 1947 Lah. 210) that the provisions of Order VII, rule 11, Civil Procedure Code do not apply to memoranda of appeals. If an insufficiently stamped memorandum of appeal is presented in an appellate Court, it cannot be held that a proper appeal has been filed at all. Such memorandum of appeal is a piece of paper which may develop into a proper memorandum of appeal and validated retrospectively if the Court extends time for the payment of the deficient court-fee under section 149, Civil Procedure Code. If on the other hand the Court refuses to extend the time the document presented in the appellate Court will never become a proper memorandum of appeal and the appeal will be liable to be dismissed as barred by time. The rule laid down in that case was affirmed by a full Bench in Qadir Bakhsh v. Allah Bakhsh and others (P L D 1967 Pesh. 1). A contrary view was expressed in a Single Bench case : Mahmood Ahmed

7. Mr. S. M. Ishfaq Ali Claims Commissioner (P L D 1974 Note 32 at p. 69) which the appellants had also cited in their application before learned Additional District Judge under section 149, Civil Procedure Code that memorandum of appeal not properly stamped cannot be rejected unless the appellant is given an opportunity to supply the deficient stamp within a period fixed by the Court and the appellant fails to do so. Relevant observations can be seen at page 255 of the report which are : , "According to law, if any plaint or appeal is insufficiently stamped, then the same cannot be rejected on this ground. The party concerned has to be asked to make up the deficiency in the court-fee and if it fails to do so, then the plaint or the appeal, as the case may be, may be rejected . . . . . . . Similarly, under Order XLI, rule 3, C. P. C. memorandum of appeal can be rejected on the ground that the same is not properly stamped after the party concerned has failed to make up the deficiency in the payment of court-fee within the time granted by the Court. The law requires that an opportunity must be given to the party concerned to pay the deficient court-fee and an appeal or plaint cannot be rejected under this rule for insufficiency of stamp unless the party is given an opportunity to supply the deficient stamp within a time fixed by the Court and it fails to do so." Reliance for this view was placed .on a couple of Sul'ua Muhammad v. Muhammad' Yusuf and others (P L D 1959 Pesh. 120) and Rashid Ahmed v. Muhammad Khan (P L D 1961 B J 76), which both deal with necessity of grant of opportunity to the plaintiff in the suit to snake good deficiency in the court-fee be rejecting the plaint under Order VIl, rule 11, Civil Procedure Code and tile question if such opportunity will necessarily have to be allowed to appellant also, who had filed appeal with deficient court-fee was not considered in either of these two cases. With profound respects, in the face of authoritative decisions in Balwant Singh's case and that of Qadir Bakhsh already referred to in the foregoing lines, the statement of law in Mahmood Ahmed's case could not be accepted as correct. The appellant who wants to supply deficiency in the court-fee payable ors memorandum of appeal shall have to make out a case for exercise of discretion of the Court in his favour, and allowing him an opportunity to make good deficiency "it the court-fee as was required in the case of insufficiently stamped plaint under Order VII, rule 11, Civil Procedure Code is not the prerequisite for order dismissing the appeal if he fails to show that he deserved the indulgence of discretionary order under section 149, Civil Procedure Code.

4. The principle governing the exercise of powers under section 149, Civil Procedure Code is that the discretion of the Court is not be exercised arbitrarily or capriciously but judicially and with utmost care. Normally, the discretion may be exercised in favour of the litigant except in cases of contumacy or positive mala fide or negligence. Learned counsel for the appellants argued that the law was amended a few months before the appeal was filed in District Court: Omission to pay proper court-fee was due to al bona fide mistake or ignorance of change in law on the part of the counsel for the appellants in the Lower Appellate Court. -The appellants should not be penalized for an unintentional misrule of their counsel anti deprived of the right to have the case decided an merits. There is no reason to suppose that the appellants were guilty of contumacy or they had deliberately avoided to pay proper court-fee. This argument was sought to be supported by the judgments in Land Acquisition Collector Rawalpindi v. Lt.-General Wajid Ali Khan Burki (P L D 1961 Lab. 1029), Shad Muhammad Khan and others v. Abdullah Jan and others (P L D 1962 Pesh.142), Mst. Niaz Begum v. Zari Jan and others (P L D 1966 Pesh. 51.), Muhammad Bashir v. Rabnawaz etc. (P L D 1975 Note 32 at p. 69), Shah Nawaz and 6 others v. Muhamnra:i Yusuf and 3 others (1972 S C M: R 179) and with particular emphasis on a recent Division Bench judgment of this Court i n W ali Muhammad and another v. Farooq Ahmed and 9 others (R. F. A. No. 24 of 1973/BWP) which had been reported partly in the, fast month's issue of a law report P L D 19$0 B J

9. Copy of unpublished part of the judgment was made available by learned counsel for the appellants. The question if the appellant be allowed to pay up deficiency in the court- A fee is in evory case essentially a question of fact according to circumstances of each case. Decided cases which proceed on their own facts are not so much help except as indicating generally the principles which should be borne in mind in exercising discretion under section 149, Civil Procedure Code. It was so observed in .Sara Ahrfsed v. Ka~am.Singh (P L D 1949 Lab. 380) that it is not possible to lay down the limits within which the powers under section 149 may b t exercised in favour of the litigant ; each case will need to be considered in the light of its own special circumstances. A few words be, however, said about the case of Wali Muhammad (PLD198013 J9), which was relied on particularly learned counsel for the appellants. In that case the appeal was valued correctly in accordance with quantum of the amount claimed by the appellants but the appellants had fallen in error when they calculated court-fee under the old law notwithstanding that the schedule of rates had by then been changed. It was held that it could not be said that the error was deliberate because the rates were changed very recently and there was a possibility that the appellants, while purchasing the court-fee, were un intentionally misdirected. The position in the instant case does not appear to be much identical with that in the precedent case. It appears that the appellants had some idea of - change in law, or they would have paid the same court-fee on the memorandum of appeal as was affixed on the plaint in the suit. The appellants had at random affixed court-fee of Rs. 115 on the memorandum of appeal. The plaintiff=respondent had raised objection on 7-5-1976 that the appeal was not property stamped. The appellants had taken leisurely steps for payment of proper court-fee. Application for orders directing revenue authorities to prepare statement of net profits froth the land during the year preceding the filing of appeal was made after two weeks of the date or raising of objection by the plaintiff respondent, and application for permission to make good deficiency in the court-fee waa made after one week of preparation of the statement. No explanation :; forthcoming why the appellants could not have acted promptly after then had a formal notice of the objection that the memorandum of appeal way i insufficiently stamped. I am led to the view that the appellants were guilty of negligence verging on contumacy. The appellants have failed to make out a case for exercise of discretion in their favour which would deprive the plaintiff respondent of a valuable right accrued to her by lapze of time. Learned Additional District Judge had exercised 'his discretion on sound judicial principles in rejecting the application by the appellants and the impugned order did not call for interference., The appeal is dismissed, with costs. M. Y. M. Appeal dismissed.