Mst. WALAYAT KHATUN vs KHALIL KHAN AND ANOTHER

1. MUHAMMAD AKRAM, J.-Mst. Walayat Khatun petitioner/plaintiff on 9-2-1976 filed a suit for possession by pre-emption of agricultural land measuring 14 kanals 9 marlas situated in village Gulmeri, Tehsil and District Mianwali ostensibly sold for Rs. 12,000 vide registered sale-deed dated 11-2-1975. It is not necessary to narrate all the facts in detail for the purpose of the present order. It will be sufficient to mention. Here that the plaint was stamped with a court-fee of Rs. 2 only and it was stated therein that the deficiency in the court fee shall be made good after ascertaining the net annual profits for the land after having obtained the ford jhar pedawar for it. In these circumstances while entertaining the plaint, in the absence of defendant, the Court on 10-2-1976 directed the plaintiff to make good the deficiency in court-fee before 18-3-1976. In spite of this the deficiency in the court-fee was not made good until on 12-4-1976, 24 days after the extended time allowed by the Court. Therefore, the defendant raised the objection that the plaint was not properly stamped and that there was neither any sufficient ground for the grant of time to the plaintiff to make up the deficiency in the court-fee nor the deficiency in the court-fee was paid within the time allowed by the Court and as such there was no sufficient ground for condonation of the delay committed by the plaintiff to make up the deficiency in court-fee. In these circumstances the learned Civil Judge accepted the objection and dismissed the suit/rejected the plaint under Order VII, rule 11, C. P. C. On 6-7-1977. The plaintiff/petitioner filed an appeal but without any success and the same was dismissed by the learned Additional District Judge, Mianwali, on the 5th December, 1977. The plaintiff/petitioner then filed a second appeal in the Lahore High Court, (R. S. A. No. 46 of 1978) which was dismissedby a learned Single Judge of that Court on 19-2-1977. The petitioner has now come up to this Court in this petition for special leave to appeal.

2. In this connection the learned counsel has argued that the three Courts have erred in their failure in extending the time to the plaintiff to make up the deficiency in court-fee on the plaint. His submission is that the plaint was filed with a deficient court-fee because the plaintiff did not have with her the fard jhar pedawar (statement of net annual profits) for the land in suit prepared in time. This was prepared for her later on and in the circumstances of the case there was sufficient cause for extension of the period of limitation for the payment of the court-fee. As such the three Courts ought to have allowed further time to the plaintiff to make up the deficiency.

3. We find that the fard jhar pedawar (statement of net profits) was got prepared by the petitioner privately from the Patwari and that a move in that direction was made by her only after the institution of the suit. In this connection section 28 of the Court-Fees Act VII of 1870 lays down that "no document which ought to bear a stamp under this Act shall be of any validity unless and until it is properly stamped". At the same time, under sections 148 and 149 of the C. P. C. (Act V of 1908) the Court has the discretion to allow and extend the time in order to make up the deficiency in court- fee for good and sufficient reasons.

4. In the instant case, to begin with, the plaint had been filed in Court deliberately with an inadequate court-fee of Rs. 2 only on it. On 10-2-1976 the Court, however, allowed the extension in time to the plaintiff to make up the deficiency in the court-fee on or before 18-3-1976 in accordant with rule 11 of Order VII of the Code of Civil Procedure. In spite of this the plaintiff failed to comply with the order within time for any valid reason to the satisfaction of the trial Court for pre-emption. In this connection in appeal the learned lower appellate Court observed that the trial Court had ordered the plaintiff to deposit the deficiency in the court-fee on or before 18-3-1976 but that it was not made up until on 12-4-1976 and no reason was advanced for this delay on the file. This order was upheld by the High Court in second appeal as no cogent reason was at all assigned by the plaintiff on the record for this further delay in depositing the deficiency in the court-fee.

5. In these circumstances the trial Court was justified in rejecting the plaint in exercise of the discretion vested in it. Likewise the two appellate Courts had also declined to interfere with the order for good and sufficient reason.

6. We also see no force in this petition. It has no merit and is therefore, dismissed.

7. KARAM ELAHEE CHAUHAN, J.-I agree with my learned brother. However, in view of the important points involved in this case I would like to add a few words of my own.

2. Section 28 of the Court- Fees Act VII of 1870 is headed as "Stamping documents inadvertently received", and lays down that "no document which ought to bear a stamp under this Act shall be of any validity, unless and until it is properly stamped. But, if any such document is through mistake or inadvertence filed or used in any Court or office without being properly stamped, the presiding Judge or the head of the office, as the case may be, or, in the case of a High Court, any Judge of such Court, may, if he thinks fit, order that such document be stamped as he may direct ; and, on such document being stamped accordingly, the same and every proceeding relative thereto shall be as valid as if it had been properly stamped in the first instance." (To the same strain are the provisions of sections 4 and 6 of that Act). A plaint is a "document" within the meanings of this section, and therefore, if it is insufficiently stamped, then according to the aforesaid section, it shall not "be of any validity". This may be read with section 149 of the C. P. C. (Act V of 1908) which is headed as "power to make up deficiency of court-fee," and stated that "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." Reading both these sections together, it will be evident that if by order of Court, a plaint which was originally insufficiently stamped, is allowed to be properly stamped then law confers a retrospective validity on the said plaint. If by the time the proper court-fee on a plaint is paid, it has already become time barred, that defect will stand cured if the deficiency was being made good under the order of a Court under the provisions of law relevant on the subject. This is a great concession shown by law to suitors whose suits otherwise would have become liable to be dismissed both for want of proper court-fee or for consequently becoming time barred by the time the deficiency in made good by them. No doubt it is a solitary provision which purports to save suitors from drastic effects of a fiscal statute, where emphasis is more on realization of Government revenue than to punish suitors for honest delinquencies. However, this is only one side of the picture. In section 3 of the Limitation Act (Act IX of 1908) which deals with "dismissal of suit, etc. Instituted, etc, after period of limitation," it is laid down that "subject to the provisions contained in sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made after the period of limitation prescribed therefore by the First Schedule shall be dismissed although limitation has not been set up as a defence." The word "suit" as laid down in Hansraj Gupta and others v. Dehrp Dun Mussoorie Electric Tramway Co. Ltd.

8. (AIR 1933 P C 63) "ordinarily means, a civil 'proceeding instituted by the presentation of a plaint". To the same strain is section 26 of the C. P. C. If the position) is therefore examined from that point of view, it becomes manifest that whereas the provisions of law earlier mentioned on the one hand help suitors, on the other hand their indiscriminate and reckless exercise may destroy the plea of limitation available to a defendant. The Court has therefore to strike a balance between these two, and whereas at one place it should not be harsh on the plaintiffs, equally and at the same time it should not be harsh on defendants to easily take away a 'valuable defence of limitation from them.

9. The Court must therefore in all cases apply its independent mind carefully and attend to their detailed facts and circumstances judicially and fairly. 1f 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. Examples of negligence, carelessness, want of bona fides etc., may vary from case to case and no hard and fast rule in this respect can be laid down.

10. However, just to give a few examples which are merely illustrative and not exhaustive, where for instance, a plaintiff deliberate describes the suit land as agricultural land assessed to land revenue and stamps it accordingly, in spite of the fact that the land to his knowledge is urban agricultural land or urban immovable property situated within the municipal limits subject to property tax under the West Pakistan Urban Immovable Property Tax. (Act V of 1958) and exempt from land revenue under section 56(1)(c) of the West Pakistan Land Revenue Act XVII of 1957, then it will not be a case warranting grant of time so as to destroy the defence of limitation which in the meantime may have accrued to the defendants and nor will it be a case of mistake or inadvertence within the meanings of section 28 of the Court-Fees Act. Similarly where a plaintiff puts ridiculously low court-fee, or where the plaint appears to have been filed not for any bona fide object of its serious pursuit, but to tease of harass another or others concerned, then a Court will not be justified t allow time for validating such a plaint and destroy the plea of limitation which may have been perfected in favour of a defendant in the meantime sheerly due to no seriousness of the plaintiff or causes of similar nature. A plaintiff who is guilty of contumacy, positive mala fides, or lack o bona fides will not be entitled for any indulgence. In this respect similarly F poverty or ignorance will also be no excuse.

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. On category is where the plaint is filed well in time, and there is still some G 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 meaning 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 H 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 distinguish--able from the first category and are a class by themselves. These are to be regulated by sections 148 and 149 of the 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 it to be granted just in routine or mechanically but by keeping in view the considera--tions above mentioned. To continue this subject and examining the present case in the light of the above principles here the sale took place on I1-2-1975. The pre-emption suit was filed a day or two before the expiry of the period of limitation on 9-2-1976 by a ridiculously low court-fee of Rs. 2 only. The Court by means of ex parts order on 10-2-1976 directed the plaintiff to make good the deficiency of court-fee on or by 18-3-1976. Obviously this was a date by which time the suit would have been time-barred and such an order could not have been passed without notice to the defendant or if passed without notice to the defendant he had every right to take exception to the same. However, the plaintiff did not file the court-fee by the requisite date and later on during the hearing surreptitiously on 12-4-1976 put it in without getting any further exten--sion from the Court and without making any application under section 149, C. P. C. Later, on objection of the defendant, the Court rejected the plaint under Order VII, rule 11(c), C. P. C. The appeal filed against the same was dismissed, and that order was maintained in second appeal by the High Court who observed that "the appellant not only failed to comply with the order of Court but went to the extent of deceiving the Court by telling that the deficiency bad not been made up upto 18-3-1976. The right course was to make an application under section 149 for extension of time giving food reason but instead of doing so, quietly the court-fee stamps were filed on 12-4-1976. Even after an issue was framed on the point, the plaintiff/appellant did not care to produce any evidence to show that she was not at fault and that the Revenue authorities had supplied to her the statement of net profits and jhar pedawar late. It is, therefore, clear that the default was wilful. A person who comes forward to exercise a predatory right like the right of pre-emption, he should be very vigilant at every stage.

11. The Courts below rightly held that without any reasonable cause, the deficiency in the court-fee was not made up within ,the time allowed by the Court." I find no fault with the aforesaid order of the High Court. However, I want to add that in my opinion. Even the initial grant of time was subject to question because by it the period of limitation stood ex parts extended upto 18-3-1976. The Court did not give any reason as to why that time was being granted ; was there no negligence of the plaintiff ; or was he not careless. It is to be remembered that in this- case the plaintiff got jhar pedawar prepared privately after the institution of the suit. If so why, could he not get it prepared before institution of suit ? This shows that the plaintiff was negligent and non-serious right from the beginning and did not deserve any indulgence by the Court.