PREMIER INSURANCE COMPANY PAKISTAN LTD. through Chairman Versus ANIS A. SHEIKH

MAULVI ANWARUL HAQ, J .---On 5-9-1992, the respondent filed a suit against the petitioners. According to the contents of the plaint, he was aggrieved, of termination of his service by the petitioner in breach of terms and conditions of his employment contract. He claimed a decree for Rs.20 million. In para.12 of the plaint it was stated that value of the suit for the purposes of the court-fee and jurisdiction is Rs.20 million and the requisite court-fee has been affixed. The suit was entrusted to a learned Civil Judge, Lahore. It was presented before him on 6-9-2002. Summons were ordered to be issued to the petitioners. I may note here that in the office report no objection was noted that the plaint does not bear the requisite stamp. The petitioners put in appearance on 16-11-2002. The case was adjourned couple of times for filing of written statement when on 22-1-2004 an application was filed in terms of Order VII, rule 11, C.P.C. that the plaint does not bear the requisite court-fee. Reply was filed. The matter was taken up on 25-o-2003 when arguments were heard. On the same day the requisite court-fee in the sum of Rs.15,000 was filed. The matter was reheard and vide order, dated 13-5-2004 the application was dismissed.

2. Learned counsel for the petitioners contends with reference to the case, Mst. Walayat Khatoon v. Khalil Khan and others PLD 1979 SC 821, that the said wrong statement in the plaint constituted a mala fide and contumacy on the part of the plaintiff/respondent who did not care to pay the court-fee even when it was pointed out by the petitioners in their application and by the time the court-fee was filed limitation for filing of the suit was over and as such the plaint ought to have been rejected. Learned counsel for the respondent, on the other hand, relies on the case Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289 to urge that under the law his client could be held guilty of contumacy or mala fide only when he had failed to pay the court-fee despite being called upon by the Court to do so within the meaning of Order VII, rule 11(c), C.P.C.

3. I have gone through the trial Court records. As noted by me above, the plaint was presented in Court with the said statement. However, no court-fee was paid thereto. It was scrutinised by the office of the learned Civil Judge and no objection was raised. Learned Civil Judge himself did not bother to check up the plaint and issued summons.

It is true that the petitioners did point out on 22-1-2003 that the plaint does not bear the court-fee and it is also true that the petitioners did not pay the court-fee even then, but then it is equally true that the Court also did not bother to perform the duties enjoined upon it under Order VII, rule 11(c), C.P.C. and no order was passed directing the respondent to pay the court-fee. Dictum laid down in Mst. Walayat Khatoon's case and being relied upon by the learned counsel for the petitioners stands distinguished and explained in the said case of Siddique Khan on which learned counsel for the respondent has placed implicit reliance. I may further note here that after the said judgment in the case of Mst. Walayat Khatoon and Siddique Khan, the matter was reconsidered by a larger Bench of the Honourable Supreme Court of Pakistan comprising of five Honourable Judges in the case Sardar Ahmad Yar Jang v. Sardar Noor Ahmad Khan PLD 1994 SC 688 and their Lordships concluded as follows in the penultimate para. of the judgment at page 692:--

"Secondly, in order to entail rejection of plaint under Order VII, rule 11(c), C.P.C., two conditions must be satisfied. Firstly the Court should have positively and specifically determined the amount of deficit court-fee which the plaintiff was required to pay/affix on the plaint and secondly, a reasonable time must be allowed to the plaintiff to make up the deficiency in the amount of court-fee."

None of the above two conditions having been complied with in the present case, there is no question of rejection of plaint under Order VII, rule 11(e), C.P.C.

4. Civil revision without any force and is dismissed accordingly. A copy of this order be remitted to the learned trial Court who shall proceed forthwith with the case and take all steps to decide the same before the year 2007 is out.

F.B./P-35/L Petition dismissed.