2023 PLD 470

Syed ZAHID HUSSAIN SHAH Versus MUMTAZ ALI

Citation2023 PLD 470

CourtSupreme Court of Pakistan

Judge(s)Qazi Faez Isa and Yahya Afridi

1. Qazi Faez Isa, J. Leave to appeal the judgment of a learned Single Judge of the Lahore High Court, passed in Civil Revision No. 233 of 2021, was granted by this Court on 30 August 2022, in the following terms:

2. 'Learned counsel representing the petitioner states that a suit was filed in respect of land purchased by the petitioner wherein it was contended that its ownership was not that of those in whose name it stood but that the plaintiff was its real owner, and those shown to be the land's owners were actually its benami owners. The suit was decreed without making the petitioner a party thereto. Therefore, the petitioner filed an application for setting aside the decree under section 12(2) of the Code of Civil Procedure ('C.P.C.'), which was allowed and he was made party thereto, but the suit was again decreed. Against this decree the petitioner filed an appeal but he did not affix the applicable court fee on the appeal, as according to him he was suffering from Covid-19, and upon recovery moved an application to condone the delay, which was declined by the learned Judge of the Appellate Court, whose order was assailed before the High Court in Civil Revision and the learned Single Judge of the High Court sustained the order of the Appellate Court.

2. Learned counsel submits that on merits the petitioner had a very good case and that the matter of court fee is between the subject (petitioner) and the State and does not grant a right to the other side, which he can use to throttle the right of appeal and in this regard refers to the cases of Abdul Khaliq v. Haq Nawaz (PLD 2018 SC 729), Provincial Government v. Abdullah Jan (2009 SCMR 1378) and Sultan Ahmad v. Khuda Bux (1986 SCMR 1005). Leave to appeal is granted to consider amongst others, the said points. Since the matter involves stamp duty, interest of the Province may be affected, therefore, notice be also issued to the Advocate General, Punjab.'

2. When we commenced hearing this appeal on 25 October 2022 a number of additional questions arose which were incorporated in the order passed on that day, reproduced hereunder:

3. 'Both the learned counsel undertake that their respective clients will not sell/transfer/gift/mutate any further land till the disposal of this appeal. The judgment of the appellate court resulted in two civil revisions in the High Court and now the matter has come before this Court. All this would not have occurred if the appellate court had not proceeded with the appeal till the deposit of the court fee or had simply rejected/ returned the appeal. We have heard both the learned counsel, however, their submissions attend to the question with regard to when, where and if time for payment of court fee should be allowed with reference to sections 148 and 149 of the Code of Civil Procedure, 1908.

2. However, what concerns us is more fundamental, that is:

(a) Whether a court should pass an order in a case in which requisite court fee has not been paid and pass judgment deciding the case on merits and prescribe therein the time within which the court fee should be paid in the order/judgment deciding the case?

(b) If the requisite court fee is not paid should the appeal be rejected/ returned as per Order VII Rule 11(c) of the Code of Civil Procedure, 1908, which as per the decision in the case of Siddique Khan v. Abdul Shakur Khan (PLD 1984 SC 289), is applicable to appeals as well?

3. We need to settle the aforesaid questions which have apparently not been previously considered by this Court. Therefore, we would issue notice to the Attorney-General for Pakistan in terms of Order XXVII-A of the Code of Civil Procedure, 1908 and appoint M/s Sh. Zamir Hussain, ASC and Mr. Muhammad Munir Paracha, ASC as amicus curiae. Office to send a copy of the judgment of the appellate court (at pages 35-49) together with a copy of today's order and order dated 30 August 2022 of this Court to the learned Attorney-General for Pakistan and the learned amicus curiae to enable them to render assistance. The learned Attorney-General, the learned Advocate-General, Punjab, learned amicus and the learned counsel for the parties may submit concise statements addressing the said queries. The Research Cell of this Court should also submit a comprehensive note on the said queries. To be fixed in the 2nd week of December 2022.'

3. The learned Syed Qalb-e-Hassan, representing the appellant, primarily relied upon the decision of this Court in the case of Siddique Khan v. Abdul Shakur Khan. 1 He also referred to the judgments of learned Single Judges of the Lahore High Court in the cases of Muhammad Sharif Khan v. Ghulam Farid 2 and Ismail Shah v. Saleh Muhammad Shah. 3 He submitted that the learned Additional District Judge, Rawalpindi ('ADJ') had decided the appeal in favour of the appellant, through a fifteen page judgment, and having decided the appeal the learned ADJ could not then state that, if the court-fees of fifteen thousand rupees is not paid within thirty days, 'the appeal shall be deemed to have been dismissed'. In any event the appellant had submitted an application, given cogent reasons to extend the time for payment of court-fee, which the appellant was ready to pay, but the application was dismissed for no good reason. He alternatively submitted that against the judgment of the learned ADJ the plaintiff in the suit (respondent No. 1 herein) too had filed a civil revision, under section 115 of the C.P.C., therefore, the High Court could have exercised revisional jurisdiction in respect of the revision filed by the respondents or it could have exercised it itself (suo motu) and sustained the judgment of the learned ADJ and set aside the judgment of the learned trial court Judge which was not sustainable in law.

4. The learned Mr. Mumtaz Ali, who represents the respondent No. 1, submitted that the appellant was granted thirty days to pay court-fees by the learned ADJ but it was not paid therefore the learned ADJ had dismissed the appeal. He submitted that the judgments of the appellate and the revisional courts are in accordance with the law. He next contended that the appellant should not receive a premium for not paying court-fees. Reliance was also placed on Order XLI, Rule 3 of the C.P.C. to contend that an appeal has to be filed within a period of thirty days, and that an appeal filed without affixing applicable court-fees does not constitute an appeal. Learned Mr. Mumtaz Ali also submitted that resort cannot be had to section 148 of the C.P.C. to seek enlargement of time because this section only applies in respect of those time periods mentioned in the C.P.C., and that neither payment of court-fees nor the period within which it is to be paid is mentioned therein.

5. Notice was issued to the Attorney-General for Pakistan under Order XXVIIA of the C.P.C. on 25 October 2022, however, it transpired that the office of the Attorney-General was lying vacant. 4 Mr. Ayaz Shaukat, Deputy Attorney-General for Pakistan ('D.A.G.') attended this Court but since neither Order XXVIIA of the C.P.C. nor the Constitution of the Islamic Republic of Pakistan mentions an Additional, Deputy or Assistant Attorney-General, therefore, they cannot represent the Attorney-General when the office of the Attorney-General is vacant. However, we heard Mr. Ayaz Shaukat's submissions but did so not in his capacity as D.A.G., representing the Attorney-General for Pakistan, but as an advocate providing assistance to the Court.

6. The learned Mr. Ayaz Shaukat referred to a decision of this Court in the case of Fida Muhammad v. Muhammad Khan, 5 which was by a four-member Bench, and stated that it had not followed the earlier decision of a two-member Bench judgment in the case of Walayat Khatun v. Khalil Khan, 6 and had instead reiterated the decision in the Siddique Khan case (above). He stated that unnecessary complications are created when decisions are made subject to payment of court-fees. According to him, the proper course to take when court-fees is not paid is for the court to stay its hands till it is paid, failing which reject the plaint on the ground of non-payment and to do so without deciding the case on merits. He further submits that the language of Order VII, Rule 11(c) of the C.P.C. suggests that it is also applicable to appellate and revisional courts. Reference was also made to section 10(ii) of the Court-Fees Act, 1870, which stipulates that if applicable court-fees has not been paid 'the suit shall be stayed until additional fee is paid', and 'if the additional fee is not paid within such time as the Court shall fix, the suit shall be dismissed.' He also referred to the case of Provincial Government through Additional Chief Secretary v. Abdullah Jan, 7 wherein it was held that cases should be decided in a 'fair and just' manner and on merits and that the object of the Court-Fees Act, 1870 'is to secure revenue for the benefit of State and not to arm the litigant with weapon of technicalities to harass'.

7. Mr. Shaukat Rauf Siddiqui, the learned Additional Advocate-General, Punjab agreed with the submissions of the learned Mr. Ayaz Shaukat and also relied upon the judgment in the case of Dost Muhammad v. Nazar Hussain Khan. 8

8. The learned amicus Sh. Zamir Hussain submitted that it is undesirable for courts to decide cases before court-fees is paid and referred to Order VII, Rule 11(c) of the C.P.C. which stipulates that a 'plaint shall be rejected' if court-fees is not paid. He referred to sections 148 and 149 of the C.P.C. and to the following cases: Walaiti Ram v. Gopiram, 9 Sundar Pandit v. Mahadeo Prasad, 1 0 Mahanth Ram Das v. Ganga Das. 1 1 Reference was also made to cases of Mst. Saddiqunnisa v. Muhammad Sultan Mirza, 1 2 Ghulam Rasum v. Additional District Judge, Lahore, 1 3 Auquf Department Punjab v. Saeed Ahmad 1 4 and to a decision (of the same learned Judge whose judgment is assailed herein) in the case of Muhammad Tariq v. Amjad Ali 1 5 which had relied on this Court's decision in the case of Assistant Commissioner and Land Acquisition Collector v. Abdul Shakoor, 1 6 however, he submitted that in that case the door for paying court-fees subsequently had not been closed.

9. The learned amicus Mr. Muhammad Munir Paracha stated that the decision in Walayat Khatun, which was by a two-member Bench of this Court, was effectively overruled by a four-member Bench of this Court in the case of Siddique Khan, which, according to the learned amicus expressed the correct legal view. Reference was also made to the judgment in the case of Shah Wali v. Ghulam Din, 1 7 a decision by a five-member bench of this Court, where it was held that, if the plaintiff-respondent did not pay the correct amount in a pre-emption suit his suit should have been dismissed.

10. That while this appeal was pending the appellant paid the applicable court-fees of fifteen thousand rupees; through C.M.A. No. 10149/2022 the paid challan and stamp paper of fifteen thousand rupees were brought on record.

11. The facts of the case are that Mumtaz Ali (respondent No. 1) had filed a suit against the legal heirs of his sister Mst. Gul Nargas and her husband Muhammad Ghaffar ('the Legal Heirs') alleging that the following tracts of agricultural lands, situated in Moza Gorakhpur and Moza Adiala of Tehsil and District Rawalpindi, were paid for by him and bought by him in the name of his sister and brother-in-law, that is, they were its ostensible (benami) owners. The particulars of the alleged benami land, that is, sale deed number, date, area, price and name of buyer are respectively mentioned herein below ('the Lands'):

4. Sale Deed No.

5. Date

6. Area

7. Price

8. Buyer

9. (1)

10. 12217

11. 2.11.1987

12. 20 kanals

13. 140,000

14. Muhammad Ghaffar

15. (2)

16. 12237

17. 2.11.1987

18. 20 kanals

19. 140,000

20. Muhammad Ghaffar

21. (3)

22. 6523

23. 27.4.1988

24. 10 kanals & 5 marlas

25. 72,000

26. Muhammad Ghaffar

27. (4)

28. 6524

29. 27.4.1988

30. 12 kanals

31. 84,000

32. Muhammad Ghaffar

33. (5)

34. 8142

35. 22.8.1989

36. 46 kanals

37. 230,000

38. Muhammad Ghaffar

39. (6)

40. 8143

41. 22.8.1989

42. 60 kanals

43. 300,000

44. Muhammad Ghaffar

45. (7)

46. 3360

47. 18.3.1990

48. 14 kanals & 15 marlas

49. 70,000

50. Muhammad Ghaffar

51. (8)

52. 3361

53. 18.3.1990

54. 9 kanals

55. 36,000

56. Muhammad Ghaffar

57. (9)

58. 5733

59. 23.5.1990

60. 1 kanals & 20 3kanals

61. 20,000

62. Muhammad Ghaffar

63. (10)

64. 5734

65. 23.5.1990

66. 14 kanals

67. 10,000

68. Muhammad Ghaffar

69. (11)

70. (12)

71. 11975

72. 25.11.1990

73. 10 kanals

74. 60,000

75. Mst. Gul Nargis

76. (13)

77. (1

78. 2453

79. 28.2.1991

80. 20 kanals

81. 100,000

82. Mst. Gul Nargis

83. 2)

84. Total

85. 214 kanals & 17 marlas

12. Mumtaz Ali alleged that his sister and brother-in-law were the ostensible owners (benamidars) of the Lands, but filed the suit in 2003 after their deaths, therefore, the purported benamidars could not controvert the allegation themselves. The Lands had stood in the names of Mst. Gul Nargis and Muhammad Ghaffar for 16, 15, 14, 13 and 12 years respectively and there was no explanation in the plaint why Mumtaz Ali had not earlier asserted his purported ownership to the Lands. The reason mentioned in the plaint by the plaintiff for buying the Lands in the names of his sister and brother-in-law was that he 'wanted to do business of purchasing land and after the same, to divide in plots and sell the same on profit, in the year 1987' and that the purported benamidars had 'agreed to help him in the aforesaid business as the plaintiff was serving in Saudi Arabia in the year 1987.' The Legal Heirs denied the allegations and claimed compensatory costs.

13. Out of the Lands the Legal Heirs sold the following lands to Syed Zahid Hussain Shah (the appellant herein) through the following sale mutations ('the Sales Mutations'):

86. Sale Mutations Nos.

87. Sanctioned on

88. Area

89. (1)

90. 9987

91. 28.7.2005

92. 20 kanals and 10 marlas

93. (2)

94. 9988

95. 28.7.2005

96. 3 kanals and 6 marlas

97. (3)

98. 10014

99. 24.11.2005

100. 8 kanals and 18 marlas

101. (4)

102. 10015

103. 24.11.2005

104. 1 kanal and 2 marlas

105. (5)

106. 10017

107. 24.11.2005

108. 2 kanals and 4 marlas

109. (6)

110. 3806

111. 28.9.2007

112. 15 kanals and 8 marlas

113. (7)

114. 10803

115. 13.10.2007

116. 44 kanals and 4 marlas

117. (8)

118. 10962

119. 22.7.2009

120. 14 kanals and 15 marlas

121. Total

122. 110 kanals and 7 marlas

123. The appellant was subsequently arrayed as defendant No. 16 in the suit when his application, filed under section 12(2) C.P.C., was accepted and the case was remanded to the learned Civil Judge.

14. The learned Civil Judge, vide judgment dated 30 October 2019, decreed the suit. The plaintiff was declared to be the owner of the Lands and it was held that Mst. Gul Nargis and Muhammad Ghaffar were his benamidars. The Sale Mutations were cancelled, however, the learned Civil Judge held that since the appellant 'was bona fide purchaser and he had no knowledge about pendency of suit', therefore, he was entitled to receive 'compensation' from the Legal Heirs 'as per current market value.' The appellant assailed the learned Civil Judge's judgment and his appeal was allowed subject to payment of court-fees. However, since court-fees was not paid the judgment of the Appellate Court stood recalled. The appellant then filed a civil revision before the High Court. The learned Judge of the High Court, through the impugned judgment, upheld the decision of the Appellate Court which had disentitled the appellant because of non-payment of court-fees; without deciding the case on merits. Therefore, it would be appropriate to first attend to the matter of non-payment of court-fees because if we come to the conclusion that the judgments of the Appellate Court and High Court on this score are not sustainable then it would be best to remand the case to the High Court.

15. On the question of non-payment of court-fees we have heard the submissions of the learned counsel and benefited from the assistance provided by the learned amicus. We proceed to consider the cited cases with regard to non-payment of court-fees.

16. This Court had noted the object and scope of the Court-Fees Act, 1870 in the case of Abdul Khaliq, 1 8 which was that, 'The Court Fees Act being a fiscal statute has been enacted to collect revenue for the State. It has not been enacted to arm a litigant with a view of technicality against his opponent. Therefore, neither the Court of law nor a litigant could use this law as a noose to strangulate a right which otherwise stands established.' In Provincial Government v. Abdullah Jan, 1 9 a three-member Bench of this Court held that, 'the Court Fees Act, 1870 is a taxing statute, which would be interpreted in favour of the subject. ... because the basic object of all the [taxing] statutes are to secure revenue for the benefit of the State and not to arm the litigant with the weapon of technicality. 2 0

17. The question whether insufficient court-fees paid on two pre-emption suits could be the reason for their dismissal was considered in the case of Sultan Ahmad, 2 1 and a four-member Bench of this Court held that pursuant to section 149 of the C.P.C. the court could exercise its power to make up deficiency of court-fees and extend time. It was held that, 'the Court was amply empowered to extend the time for doing the needful as earlier ordered or even pass a fresh order to the same effect by a specified future date. It is well-settled that the power vesting in the Court under section 148, C.P.C. can be exercised successively and even after the time under previous such order has expired.' 2 2 However, in Walayat Khatun v. Khalil Khan 2 3 leave to appeal was not granted against the discretion concurrently exercised by three courts in not further extending the time to deposit the requisite court-fees in a pre-emption. But, in Shah Wali v Ghulam Din 2 4 time to deposit the balance of the decretal amount in a pre-emption suit was extended by a five-member of this Court.

18. The Supreme Court of India in Mahanth Ram v. Ganga Das 2 5 held that, under sections 148 and 149, C.P.C. the Court could enlarge time even after the time earlier fixed had expired. In Nazir Ahmad Bhatti v. M. Younus 2 6 a learned Judge of the High Court held that Order VII, Rule 11, C.P.C. requires that if the Court finds that applicable court-fees is not paid the plaintiff should be called upon to pay it within the time given to do it but if he fails to do so then it should reject the plaint, however, since such an opportunity had not been provided the case was remanded to provide such opportunity.

19. A four-member Bench of this Court in the case of Siddique Khan v. Abdul Shakur Khan 2 7 observed that by virtue of section 107(2) of the C.P.C., 'Order VII, rule 11(b) and (c) applies to plaints as also to memoranda of appeals,' 2 8 and, if the memorandum of appeal is not sufficiently stamped it should not be rejected without providing an opportunity 'to supply the required court-fee.' 2 9 This decision was endorsed in Fida Muhammad v Muhammad Khan, 3 0 another decision by a four-member Bench. However, a three-member Bench of this Court in Assistant Commissioner and Land Acquisition Collector v. Abdul Shakoor 3 1 declined to grant leave to appeal against the order of the High Court which had dismissed the appeal because the requisite court-fees was not paid within the prescribed limitation period and noted that the appellant was negligent and his conduct was contumacious. In Muhammad Tariq v Amjad Ali 3 2 the plaintiffs had claimed land on the basis of a purported gift, which they had failed to establish and the appeal against the civil court's judgment remained pending for a period of two years and ten months which was finally dismissed for non-payment of applicable court-fees, and a learned Judge of the Lahore High Court dismissed the civil revision by upholding the decisions of the subordinate courts.

20. About a hundred years ago the Lahore High Court had decided in the case of Ismail Shah v. Saleh Muhammad Shah 3 3 that when a suit is dismissed on merits then an order for additional court-fees was incompetent. And, in Walaiti Ram v. Gopiram, 3 4 decided ten years thereafter it was held that the question regarding court-fees should be decided at the earliest opportunity and if the suit is incorrectly valued and insufficient court-fees is paid then the valuation should be corrected and order for the payment of court-fees be passed, and if the applicable court-fees is not paid then the plaint should be rejected under Order VII, Rule 11, C.P.C., and that it was improper to decide the suit on merits and require the payment of deficient court-fees.

21. An unnecessary problem was created by the Appellate Court which decided the appeal, but made its judgment subject to payment of court-fees. The law requires that a court should first attend to the matter of court-fees. If court-fees is not paid the plaint may be rejected; in Siddique Khan v. Abdul Shakur Khan case (above) it was held that the same also applies to memoranda of appeals. However, the Appellate Court adopted a course which the law does not provide. The learned ADJ allowed the appellant's appeal but made his decision subject to payment of court-fees within thirty days. The appellant submitted an application for enlargement of time, under sections 148, 149 and 151 C.P.C., in which he stated that he was not aware of the condition imposing court-fees and that due to the Covid-19 pandemic and closure of the court he was unable to make payment within the stipulated thirty days. However, his application was dismissed. As noted above the appellant has paid the court-fees, which has secured the interest of the State.

22. The question which requires consideration is whether the respondents' rights were infringed or interest undermined on account of non-payment of court-fees or by its belated payment. This Court in Provincial Government v. Abdullah Jan and in Abdul Khaliq v. Haq Nawaz (above) held that the Court-Fees Act, 1870 is a taxing statute which collects revenue for the State, and that it does not create any right in a party nor extinguishes any party's right. If the court-fees was a right vesting in a party then a court could not waive its payment. However, if a person is financially incapable of paying court-fees the C.P.C. permits filing of a suit without payment of court-fees and the plaintiff therein is enabled to submit an application under Order XXXIII of the C.P.C. to sue as a pauper, that is, without paying court-fees; there is no reason not to apply the same principle to appeals too. If payment of court-fees had created a right in the opposite-party the law would not have permitted entertaining an application (under Order XXXIII C.P.C.) seeking permission to sue as a pauper and file a suit without court-fees nor empowered the court to grant such application.

23. In our opinion the cases in which money is due to the opposite-party, such as sale consideration in a suit seeking specific performance of contract or a statutory provision requiring deposit of the amount in a preemption suit to secure the interest of the purchaser, cannot be equated with cases in which court-fees is not paid or belatedly paid; payment of court-fees is not received by the opposite-party. Non-payment or belated payment of court-fees does not adversely affect the interest of the opposite- party. The learned ADJ should not have proceeded to decide the appellant's appeal till he had paid court-fees. In the instant case the appeal was allowed, and thus it would have been in the interest of the appellant to have paid it. If instead the appeal was dismissed the appellant may not have had an interest to pay it.

24. The appellant had given sufficiently valid reasons for extending the time for payment of court-fees, which the court could extend under sections 148 and 149 of C.P.C., therefore, his application seeking extension of time to pay court-fees, should have been accepted by the learned ADJ, failing which the learned Judge of the High Court should have allowed the civil revision filed against the decision because the learned ADJ had acted illegally or with material irregularity in respect of the jurisdiction vested in the Court. 3 5 If court-fees was allowed to be paid the interest of the State would have been secured, without in any manner undermining the legal rights of the opposite-party. It is not understandable why the appellant was not allowed to pay the court-fees, albeit belatedly. Therefore, we set aside the impugned judgment and the decision of the learned ADJ to the extent that he had dismissed the appellant's application seeking extension of time for deposit of court-fees which (as stated above) has been paid and do so by allowing this appeal and Civil Revision No. 233 of 2021 filed by the appellant in the High Court. However, the plaintiff in the suit (respondent No. 1 herein) had also assailed the judgment of the learned ADJ and had filed Civil Revision No. 306 of 2020; 3 6 it is not clear what became of this case. Therefore, Civil Revision No. 306 of 2020 and any other case filed by the respondents against the learned ADJ's judgment shall be deemed pending before the High Court which shall be decided on merits. In case such case(s) were withdrawn/disposed of the respondents shall be entitled to assail the merits of the judgment dated 19 June, 2020 of the learned ADJ, Rawalpindi passed in Civil Appeal No. 401 of 2019, within the prescribed period which shall commence from the date of receipt of this judgment.

25. Before parting with this judgment we would like to observe that legal complications arise if a judgment is given, as in the instant case, without applicable court-fees having been paid, and parties alter their positions pursuant thereto, for instance the appellant may have proceeded to sell the land which he had purchased and thus create third-party interest therein, which may give rise to additional litigation. Such litigation can be avoided if the matter of court-fees is first settled. Moreover, when courts are inundated with cases, and of those who are keen to proceed with them, it does not stand to reason to waste court-time by deciding a case in which court-fees has not been paid.

26. We are grateful to the learned amicus and the learned counsel for their assistance. Office to send a copy of this judgment to those respondents who were not represented before this Court.

124. MWA/Z-5/SC Appeal allowed.

125. 1 PLD 1984 Supreme Court 289

126. 2 1980 CLC 545

127. 3 AIR 1925 Lahore 326(2)

128. 4 The Attorney-General, Mr. Ashtar Ausaf Ali, had resigned on 12 October 2022.

129. 5 PLD 1985 Supreme Court 341.

130. 6 PLD 1979 Supreme Court 821.

131. 7 2009 SCMR 1378, p. 1381.

132. 8 1984 SCMR 325.

133. 9 AIR 1935 Lahore 75.

134. 10 AIR (29) 1942 Patna 243.

135. 11 AIR 1961 Supreme Court 882.