ZAFFAR ALI MIRZA Versus KULSUM BEGUM

1. This is a Civil Revision Application against the judgment and decree of the District Judge, Karachi West dated 17‑8‑1987, whereby he dismissed the appeal of the present petitioner as invalid. I need not produce the facts or the contentions of the parties because such enumeration is unnecessary for the disposal of this revision. However, it appears that judgment and decree against the present petitioner was passed by the IIIrd Senior Civil Judge (West) Karachi, on 7‑2‑1987 and an appeal was preferred against the judgment and decree before the District Judge with fifteen rupees court‑fee stamps. The appeal was lodged with the District Judge on 12‑3‑1987. An objection was taken on 15‑8‑1987 by the learned counsel for the respondent before the' appellate Court that as the memo of appeal was insufficiently stamped, therefore, the appeal should be dismissed. The petitioner/ appellant submitted that he ought to have given a chance to make up deficiency. The respondent however opposed the request. The learned District Judge without passing any orders on this request of the petitioner/ appellant heard arguments and after writing a judgment dismissed the appeal as invalid. Against the judgment of the learned District Judge, the present revision has been preferred. It is also pertinent to note that the petitioner also filed a review petition along with application under section 149 of Civil Procedure Code read with section 28 of the Court Fees Act and also submitted deficit court‑fee. The application for review was also dismissed by order dated 10‑10‑1987.'

2. I have heard the learned counsel for the parties. As I have said above, the learned District Judge has written two pages judgment and came to the conclusion that "the appeal has been filed without any court‑fees stamps, is invalid and is hereby dismissed". The learned District Judge has written a very lengthy order on review application discussing various authorities and came to the conclusion that the defaulting petitioner/ appellant should not be permitted to affix the necessary stamps on the appeal.

3. It is true that it is the responsibility of a counsel to devote proper attention and care to cases of his client and put in documents in a case properly stamped as required by the law for the time being in force. With that statement of the learned District Judge, one cannot have any dispute. It has come to the notice of this Court that counsel do not exercise that care and attention which is expected of them in handling the cases of their clients. The result is that the poor litigants have to suffer from the mistakes of their counsel. Viewed from that point of view, the attitude of the learned District A Judge is quite justified in not condoning the delay in affixing the proper court‑fee stamp to the appeal. If the matter were as simple as mentioned above, I would have not the least hesitation in upholding the judgment of the District Judge. Litigants and their counsel are expected to bestow due care and attention to be very careful and conscious of their responsibilities in presenting documents and pleadings in Courts of law and in prosecuting their cases. If they are so careless as not to produce documents properly stamped as. required in Courts, they do not deserve any indulgence.

4. This is one side of the picture but there is another side also. While Courts should insist upon utmost care and attention on the part of the litigants and their counsel in prosecuting their cases, in the instant case in the production of documents, responsibility lies also on the officers of the Court to discharge their duties properly, when any pleading or document is presented in Court of law, it is the duty of the Court and its clerical staff to examine the document and see if it is properly stamped according to the provisions of the Court‑fees Act. In the case of any pleadings, the first duty of the B Court and its concerned staff is to examine whether all the documents are in order and documents requiring stamp and/or court‑fee have been properly stamped. In case of appeals, as soon as a Memorandum of Appeal is presented the official concerned has a duty to report about the completeness of papers of appeal, competency of the appeal to that Court and so on and so forth. These duties Are (i) the) presentation is made by the proper party, (ii) all the necessary papers are filed, (iii) sufficient court‑fee has been paid/affixed, (iv) the presentation is within the prescribed period of limitation and (v) the appeal lies to the Court. The official shall also record the date of such presentation, the memorandum shall be laid before the Judge the same day, in case of absence of the Judge, on the day he next sits.

5. So when I apply the above principles to the present case, it is clear that it was the duty of the clerk and presiding officer as well when the memorandum of appeal was presented to see whether it was properly stamped with the appropriate court‑fee stamp. As I said earlier, nobody has cared to look at it whether it was properly stamped or not. If the Presiding Officer or the clerk concerned had cast a cursory glance at the memorandum of appeal, it could at once have been seen that it did not bear proper court‑fees. The duty of the Court and clerk was to point out this deficiency to the counsel of the appellant, so that he would have made up the deficiency. If on the other hand he did not care to make up the deficiency the consequence had to be borne by him. But in the absence of anything of the sort having been done, I cannot penalies the appellant /petitioner for negligence both ‑of his counsel as well as of the Court establishment. I might use rather peculiar language and say that the poor litigant should not suffer for the contributory negligence of his counsel and Court officials. When neither the counsel of the appellant /petitioner nor the Court officials have performed their duty in accordance with law the benefit should go to the appellant /petitioner because the Court‑fees Act is a taxing statute and according to the well‑recognized principles of interpretation a taxing statute should be interpreted in favour of the subject. These observations should have been sufficient to decide this revision but as much case‑law has been cited by the District Judge as well as before me, the decisions also have to be discussed and it has to be seen whether in the light of the various decisions, there is warrant for the view which I have taken above. The provisions of law relevant to the point are section 149 of the Code of Civil Procedure and sections 6 and 28 of the Court‑fees Act. Section 149 of the Code reads as under:‑

6. "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."

7. Section 6 of the Court Fees Act says that:‑

8. "No document of any of the kinds specified as chargeable in the First or Second Schedule to this Act annexed shall be filed, exhibited or recorded in any ~ Court of Justice, or shall to received or furnished by any public officer, unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said Schedules as the proper fee for such document." Section 28 of the Court Fees Act states as under:‑

9. "No document which ought to bear a stamp under this Act shall be of any validity, unless and until it is properly stamped.

10. But, if any such document is through mistake or inadvertence received, 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 relating thereto, shall be as valid as if it had been properly stamped in the first instance. I would begin with section 28 of the Court Fees Act. From bare reading of section 28, it is very clear that if any document through mistake or inadvertence is received or filed in a Court, without being properly stamped, the Presiding Officer has to order that it be properly stamped. In the instant case the memorandum of appeal had been filed or received in the Court without the mistake having been detected at the presentation but when it was brought to the notice of the Court that it was not properly stamped, the Presiding Officer should have directed the defaulting appellant /petitioner to make up the deficiency. After instructions were given to the appellant to make up the deficiency, if he had failed to do so, there would be justification for the Court to dismiss the appeal but this procedure has not been followed in the case. On the other hand when it came to the knowledge of the Court that this appeal was not properly stamped, the Court straightaway went to hear arguments and then dismissed the appeal. Under section 149 of the Code of Civil Procedure Code also the Court has ample power to allow a person to make good the court‑fee within the time to be fixed by the Court and the result in both cases whether it is a case covered by section 149 C . P. C . or by section 28 of the Court Fees Act, if the deficiency in the stamp or court‑fee is made up within the time fixed by the Court, the document shall be taken as if proper fee had been paid in the first instance. There are a catena of cases which hold that the proper course in such cases is to direct the party concerned to make good the deficiency in court‑fee. Without an opportunity being given to him if the order is passed adverse to that party, such order has been held to be bad.

11. In the case of Shah Nawaz and 6, others v. Muhammad Yousuf and 3 others 1972 SCMR 179 it has been held:‑

12. "It is thus evident that unless the plaintiff is guilty of contumacy or positive mala fides in putting in deficient court‑fee along with his plaint, the Court could in its discretion allow time to the plaintiff to put in the deficient court‑fee. In the case of Siddique Khan and 2 others v. Abdul Shakur Khan and another reported in PLD 1984 SC 289, the Hon'ble Supreme Court held as under:‑

13. "It is also appropriate here to state the well‑accepted rule about Courts' attitude towards the collection of court‑fee as agent of State. It is to the effect that the Court Fees Act like the other fiscal statutes is to be construed strictly and in favour of the subject; and that it was passed with the object of securing revenue for the benefit of the State and not to arm a litigant with a weapon of technicality to harass his opponent."

14. In the same judgment, the Hon'ble Supreme Court further held:‑

15. "One more conclusion that can be drawn from the foregoing discussion is that the failure to supply proper court‑fee in the context of the Court Fees Act and section 149 and Order VII, rule 11(c) of the Civil Procedure Code can at best be equated with non‑prosecution and not with non‑institution or presentation of the matter/document nor with the bar of limitation. Accordingly, considerations in that behalf for exercise of discretion under sections 148 and 149 and the relevant provisions of Court Fees Act should be different from those under section 5 of the Limitation Act, which in any case does not apply to the suits. To apply the latter to the former cannot be justified on any rule of interpretation. This is what was thought as the proper approach by the Lahore Full Bench in the case of Jagat Ram (1938) when discovering the meaning of bona fides from the General Clauses Act rather than applying the Limitation Act. In the light of these additional reasons on this subject the rule laid by this Court in the cases of Mst. Parveen (1938) and Shahna (1983) is re‑affirmed. For all these reasons it is accordingly held that when considering the options for exercise of discretion for grant of time for supply of deficiency in the court‑fee, considerations relevant to bar of limitation shall not be taken into account."

16. The above decisions are followed by the Supreme Court in the case of Ata Muhammad v. Abdul Aziz 1988 SCMR 759. The District Judge discussed 1983 CLC 370. In view of the law laid down in Siddique Khan v. Abdul Shakur Khan PLD 1984 SC 289 and Atta Muhammad v. Abdul Aziz 1988 SCMR 759, the decision reported in 1983 CLC 370 cannot stand the test of scrutiny by this Court. A resume of the above decisions would clearly show that there is hardly any case which can be said to be applicable to the facts of the case. There are a large number of decisions on the point that whenever a document requiring to be stamped is presented in a Court without the proper court‑fee stamps, it is the duty of the Court and its officials to point out the deficiency to the party presenting the document and to allow him some time to make up the deficiency. The result is that this revision succeeds and the judgment of the District Judge, Karachi West dated 17‑8‑1987 is set aside and the case is sent back to him for rehearing it according to law. The petitioner/appellant has made up the deficiency in court‑fee and affixed it with the memo of appeal. In the circumstances of the case, I do I not think that there will be any use now in asking him to adjudicate upon whether time should be extended under section 149 C.P.C read with section 28 of the Court Fees Act. The delay is condoned. He will, as such, dispose of the appeal on merits after hearing arguments. Costs to abide the result. The parties will appear before the District Judge, Karachi Central on 3‑12‑1988.

17. M . Y . H , /Z‑73/ K Petition allowed.