P L D 1955 Peshawar 81 (PLP)

MUHAMMAD SHAFI, J.

The Government North West Frontier Province, on the 25th of July, 1949, instituted a suit against Ghulam Sarwar Khan and Muhammad Khan, for the recovery of Rs. 1,290-3-7, on account of the price of certain articles delivered to the defendants. The learned Sub-Judge 1st Class Peshawar, who heard the case, dismissed the suit with costs on the 11th of June 1954. An application for the copy of the judgment and the decree sheet was made by Muhammad Safdar Khan Pleader, on behalf of the Federation of Pakistan on 3rd July, 1954. The-copies were delivered to the applicant on the 28th of July, 1954, Allowing the time requisite for obtaining the copy of the decree sheet and the judgment, which were 26th days in this case, the appeal had to be instituted on the 6th of August 1954, because it lay to the Court of the District judge, for which the time laid down is 30 days. During the month of August 1954, however, the Civil Courts were closed on account of the summer vacation, and so legally the time for presenting the appeal was automatically extended to 1st September 1954, when the Civil Courts reopened. Mian Burhan-ud-Din, the Additional Government Pleader, did on the said day present the memorandum of appeal, accompanied by a certified copy of the decree sheet and of the judgment. The memorandum of appeal which under Schedule 1, Article 1 of the Court-fees Act, had to be stamped with Rs. 135 stamp, was in actual fact stamped with one rupee Court-fee only and the copy of the decree sheet and the judgment were not stamped at all. On the memoran dum of appeal a note was made that it was being stamped with one rupee stamp and that the deficient Court-fee shall be made good, when it is received. It was not made clear as to from where it was to be received by the Additional Government Pleader. No explanation was given on the memorandum of appeal as to why the copies of the decree sheet and the judgment were not stamped with one rupee and eight annas Court-fee respectively as required by law. On 2nd September, 1954, the office of the District Judge made a report about the deficient Court-fee on the memoran dum of appeal and the copies of the judgment and the decree sheet. On the same day the learned District judge signed an order, which was in actual fact written by some Moharrir of his Court, to the following effect :- " To be returned to the counsel for the appellant for making good the deficiency in the Court-fees, with the direction to resubmit the appeal on or before 10th Sep tember, 1954 ". Mian Burhan-ud-Din received the memorandum of appeal and the documents attached thereto back on 6th September. 1954, to be refiled on the same day, after affixing the necessary stamp upon them. On 14th December, 1954, when the appeal came up for final hearing, it was heard by Mr. Haji Muhammad Khan, the Additional Judge Peshawar, before whom a preliminary objection was raised on behalf of Ghulam Sarwar Khan res pondent, that the appeal was barred by time, and should be dismissed as such. The preliminary objection did not find favour with the Additional judge, who over-ruled it, and held that the appeal had been filed within time with deficit Court fee, which was, made good subsequently under the orders of the District Judge, and, therefore, under section 149 Civil P. C. the fee on the memorandum of appeal and the documents attached thereto shall be considered as having been paid on the day when they were presented in the first instance. Ghulam Sarwar Khan has come up in revision to this Court against the above order. The learned Government Pleader, who has appeared on behalf of the Government, has not contested and in fact could not contest that the memorandum of appeal as well as the copies of the judgment and the decree sheet were filed on the last day of limitation, the former with a deficit Court-fee and the latter with no Court-fee at all. Section 6 of the Court-fees Act is imperative in its terms and makes it impossible for a Court of justice to entertain the documents which are required to be affixed with the Court-fee, as indicated in the Schedule attached to the Court-fees Act without the payment of that Court-fee. If the document is a plaint, then the provision of law applicable thereto would be Order VII rule 11 Civil P. C. which provides that if the plaint is written upon paper insufficiently stamped, then it shall be rejected by the Court, if 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. Order VII rule 11 Civil P. C., however, according to the views of Allahabad, Lahore and Madras High Courts and the Judicial Commissioner's Court Peshawar, does not apply to the memorandum of appeals insufficiently stamped. The Peshawar case is Kazi Mukarram Khan Kazi Abdul Wahab Khan and another v. S. Hardit Singh S. Narinjan Singh (A I R 1941 Pesh. 69). The only provision of law which is applicable to the memo randum of appeals, the judgments and the decree sheets is section 149 Civil P. C., which is to the following effect :- " Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating 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, as 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 force and effect as if such fee had been paid in the first instance." There can be no manner of doubt as is clear from the words used in section 149 Civil P. C. itself, that the question under that section is one of the Court's discretion and not that of the appellant's right. Where the Court is authorized to exercise a discretion, then the' elementary principle of law is that the discretion should be exercised not capriciously but judicially and with proper care and caution. Such discretion should in no case be exercised in favour of a party, who has not been bona-fide i.e., who is not under any honest mistake or doubt, or who has not made an honest attempt to comply with the law. If the exercise of the discretion purports to deprive a certain party of a valuable right which has ensued to it, as a result of certain order passed in its favour, then the discretion exercised in its absence and without giving any notice to it would amount to denial of justice. Again, if the exercise of discretion has the effect of enlarging the time prescribed by the law of limitation, then such exercise in the absence of the party affected thereby will be the discretion exercised capriciously. This is in the nutshell the view taken in Krishnasami Panikondar v. Ramasami Chettiar and other (A I R 1917 P C 179), Murli Mal v. Vaishno Ditta and others (73 I C 788 Pesh.), Mst. Noor Jana and others v. Mst. Chana and others ; (A I R 1943 Pesh. 43) and Saeed Ahmad and others v. Karam Singh and Mst. Jawala Devi (P L D 1949 Lah. 380). The learned lower appellate Court while taking the contrary view relied upon Faizullah Khan and another v. Mauladad Khan and others (118 I C 493 P C), Singasan Tewari and another v. Gaya Tewari (156 I C 405 Pat.) and Nihal Chand and others v. District Board Mianwali (166 I C 575 Lah.). So far as the Privy Council authority is concerned, it was a case in which their Lordships were pleased to hold that the Court-fee paid in the Court of the Judicial Commis sioner, N. W. F. P. by the appellant was correct, but even if it was not still it was pre-eminently a case for the exercise by the judicial authority of the discretion under section 149 Civil P. C. I really fail to understand how can this authority apply to the facts of the present case, but if it does apply at all, then all that their Lordships were pleased to hold was that the discretion under section 149 Civil P. C. should be exercis ed judicially. As regards the second case, it was held by a single judge, James J., that when the memorandum of appeal is filed with insufficient stamp then it is open to the Court to reject it at once, or to allow the deficit to be made good, and when that is done, the effect of the acceptance of the deficit Court-fee is that the memorandum of appeal must be treated as if it had been sufficiently stamped on the day of presentation. So far as the third case is concerned. Their Lordships of the Lahore High Court, following Faizullah Khan and another Mauladad Khan and others (117 I C 493) held that where within the time allowed the proper Court-fee and the printing fee are paid up, the document on which the Court-fee is so made up must be taken to date back on the date when it was originally presented. There can possibly be no dispute with regard to the proposition of law laid down in these two authorities, but the question which is involved in this case is as to whether the Government had made out a case in its favour to attract the exercise of the discretion contained in section 149 Civil P. C. On 2nd September, 1954, when the learned District judge signed the order that the deficiency in Court-fee should be made good on or before the 10th of September, 1954, he perhaps did not realize that the effect of this order was to extend the limitation for the institution of the appeal, and thus deprive the respondents of a valuable right, for it affected adversely the finality of the order passed in the respondents' favour. If he had realized this, he could not have and in all probability he would not have passed the order in question, without first issuing a notice to the respondents and giving them an opportunity to be heard. The order of the District judge as it is, passed behind the back of the respondents, cannot legally have the effect of extending the limitation for the presentation of such appeals as prescribed by law, because the exercise of the discretion cannot under these circumstances be said to be judicial or done with due care and caution. Apart from that, the facts which have brought upon this record clearly go to show that the non payment of the requisite Court-fee on the memorandum of appeal and the copies of the decree sheet and the judgment was deliberate, and due to the negligence of the law officers of the Provincial' Government. If the Courts had not been closed for the summer vacation, the appeal should have been filed on 6th August, 1954. The office of the Legal Remembrancer and that of the Government Pleader, which are not closed for the summer vacation, should have known that the appeal in this case had to be filed immediately on the day when the Courts reopened, and they should, therefore, make all necessary arrangements for filing it on 1st September, 1954. According to the affidavit of Mian Burhan-ud-Din he got the papers without the necessary Court-fee on 1st September, 1954, from the Legal Remembrancer's Office. It may or may not be so, but then the explanation which had to be given by the Government was as to why did the Legal Rememb rancer not send the papers earlier to the Government Pleader, and then why did he not send along with the papers the necessary Court-fee. The learned Additional Government Pleader on the memorandum of appeal only wrote so much that the deficit on the memorandum of appeal would be made good when it is received, He did not say anything as to why was he not stamping the copies of the judgment and the decree sheet, because the amount necessary for that purpose was extremely petty i.e., Rs. 1-9-0. In the absence of the explanation mentioned above, the only inference which can be drawn is that the Legal Remembrancer and for the matter of that the Government was extremely negligent. It has been noted down by the learned lower appellate Court that normally the Court-fee stamp is purchas ed by the Government Pleader from his own pocket, and then recovered from the Government, but as in this case the papers were received on the last day of limitation, there was no time for him to purchase the Court fee. This observation made by the learned lower appellate Court, which is based on the affidavit of the Additional Govern ment Pleader, may or may not be true, but the fact remains that this arrangement at the utmost is the arrangement between the law officers of the Government and the Govern ment with which this Court has no concern. In any case the papers, which were incomplete, were sent on the last day of limitation to the Government Pleader, and the Government had consequently not acted with due care and caution as the law enjoins them to do. In principle I do not see any difference between the ordinary litigant and the Government, so far as the payment of Court-fee or filing of the appeal within time allowed by law is concerned. In fact the Govern ment, which has an elaborate machinery at its disposal, is expected to be more careful than an ordinary layman. If the latter has to suffer for the negligence of his legal advisers, I fail to see why should the Government be not made to suffer for the negligence of its law officers. I am consequently constrained to arrive at the conclusion that there was no legal appeal filed by the Government on 1st September. 1954, and the learned District judge was B absolutely wrong in exercising his discretion under section 149 Civil P. C. in favour of the Government. The appeal, therefore, would be taken to have been filed on 6th September, 1954, when it had become hopelessly barred by time. The Government presumably has a remedy against the defaulting officers, but. it certainly has no right to be shown any indulgence by a Court of law. The result is that I accept this revision petition, set aside the order of the learned lower appellate Court, and dismiss the Government's appeal pending in the Court of the District judge as barred by time, with costs. The petitioner shall have his costs in this Court as well. Pleader's-fee Rs.

32. A. H. Petition accepted.