HIDAYATULLAH AND Others vs MUHAMMAD IBRAHIM AND Other
This petition for leave to appeal arose from a civil suit for possession by pre-emption filed by the petitioners on the final day of the limitation period with a grossly deficient court-fee stamp of Rs. 10 instead of the required Rs. 5,485. The Civil Judge rejected the defendants' preliminary objection demanding rejection of the plaint, but the High Court allowed the defendants' revision petition. The Supreme Court affirmed the High Court's decision, holding that Order VII Rule 11(c) and Section 149 of the Code of Civil Procedure 1908 must be read and applied together when addressing a deficiency in court-fee after the expiration of limitation. The Court established that where the failure to pay the proper court-fee is contumacious or actuated by positive mala fides, judicial discretion under Section 149 of the Code of Civil Procedure 1908 will not be exercised to allow the plaintiff to make up the deficiency after limitation has lapsed. Leave to appeal was accordingly refused.
- Must Order VII Rule 11(c) and Section 149 of the Code of Civil Procedure 1908 be read together when court-fee deficiency is sought to be made good after limitation expires?
- Can a court permit a plaintiff to make good a deficiency in court-fee after limitation has expired if the non-payment was contumacious or mala fide?
- Does filing a pre-emption suit on the last day of limitation with nominal court-fee constitute contumacious conduct precluding relief under Section 149 of the Code of Civil Procedure 1908?
- Order VII Rule 11, Code of Civil Procedure 1908
- Order VII Rule 11(c), Code of Civil Procedure 1908
- Section 149, Code of Civil Procedure 1908
ORDER
MUSHTAQ HUSSAIN, J.-The petitioners filed a civil suit for possession by pre-emption on the last date of the period of limitation. Full court-fee was not paid and an averment was made in the plaint that the definiency will be made good in due course. The learned counsel for the defendants raised a preliminary objection and demanded that the plaint should be rejected because it was not properly stamped for the purpose of court-fee when it was presented to the Court. He also assailed the order of the Court in allowing the plaintiff to make good the deficiency within a particular period. The learned Civil Judge by his order dated 17-1-1977 rejected the application.
2. A revision petition was filed by the defendants which was accepted by the High Court. Hence this petition for special leave to appeal by the plaintiff.
3. It has been urged before us that when the plaint is presented, Order VII, rule 11 of the C. P. C. Gets attracted to it and if the same is deficient of making it good.
4. The learned Judge of the High Court has examined all the relevant rulings on this point as well as on the question as to when and to what extent is section 149 of the C. P. C. Applicable to such cases. Relying upon the view held consistently by the various Courts and more particularly on the judgment of one of us (Karam Elahee Chauhan, J.) in Mst. Walayat Khatun v. Khalil Khan and another (PLD 1979 SC 821) the learned Judge of the High Court found that the provisions of Order VII, rule 11 (c) and section 149 have to be read and applied together in a matter where the deficiency in court-fee is to be made good after the expiry of the period of limitation. The learned Judge went on to correctly expound the law by saying that in cases where the act of not paying the proper amount of court-fee is contumacious or actuated by positive mala fides the Court will not grant the indulgence to the plaintiff of permit ting him to make good the court-fee after the expiry of the period o limitation. In the present case there is no doubt that the conduct was contumacious because although the court-fee amounted to Rs.5,485 only sum of Rs. 10 was paid as court-fee and the suit was - filed on the last dot of the period of limitation. That being the case, we cannot find any fault with the order of the learned Judge of the Lahore High Court and would, therefore, dismiss this petition and refuse to grant leave to appeal.
Cited by 5 cases
- ASSISTANT COMMISSIONER AND LAND ACQUISITION COLLECTOR, BADIN 1996 CLC 2002
- NAIK MUHAMMAD and another vs ADDITIONAL DISTRICT JUDGE, VEHARI and 5 1985 CLC 1969
- NIZAM DIN and 3 others vs KHAN MUHAMMAD 1984 MLD 404
- BASHIR AHMED vs HASSAN DIN AND OTHERS 1983 PLD Lahore 455
- HIDAYAT ULLAH AND Others vs MUHAMMAD IBRAHIM AND Another 1981 SCMR 1242