SHAHRAH vs ALLAH DAD And 3 Other
This appeal by leave of the Court is directed against the dismissal of the appellant-plaintiff's civil revision by the High Court, which upheld the rejection of his pre-emption plaint under Order VII Rule 11 of the Code of Civil Procedure 1908 due to the delayed supply of a deficient court-fee. The core legal question examined was the effect of this Court's precedent in Siddique Khan v. PLD 1984 SC 289 regarding the validity of rejecting plaints for deficient court-fees. The Supreme Court allowed the appeal, holding that the trial court failed to determine the exact amount of deficient court-fee and grant time in accordance with the law, thereby depriving the plaintiff of his rightful chance to make good the deficiency. The impugned appellate and revisional judgments were set aside, and the matter was remanded to the lower appellate court for a decision on merits. The key principle laid down is that a plaintiff is entitled as of right to at least one proper opportunity to supply a determined deficient court-fee under Order VII Rule 11, Code of Civil Procedure 1908 before a plaint can be rejected as time-barred.
- Whether a plaintiff is entitled to an opportunity to make good a deficient court-fee before a plaint is rejected under Order VII Rule 11, Code of Civil Procedure 1908?
- Does the deposit of a court-fee after the period of limitation render a suit time-barred when the trial court failed to properly determine and communicate the deficiency?
- What is the effect of the rule laid down in Siddique Khan regarding the procedure for handling deficient court-fees?
- Order VII Rule 11, Code of Civil Procedure 1908
1. MUHAMMAD AFZAL ZULLAH, CJ.--This appeal, by a plaintiff/pre--emptor, through leave of the Court is directed against the dismissal by the High Court, of his civil revision.
2. The appellant's suit was decreed but the respondents' appeal was allowed and the plaint of the appellant was rejected under Order VII, Rule 11, C.P.C. On a ground relating to payment of court-fee.
3. It was held that the plaint having been filed with deficient court-fee, the plaintiff failed to supply the deficiency within the specified time nor an extension was sought in that regard, therefore, the deposit of the proper court-fee after the period of limitation was of no avail to the appellant/plaintiff because by that time the suit, notwithstanding it having been filed within the period of limitation, had by virtue of late supply of the court-fee, become time-barred. The appellant's revision before the High Court failed due to similar reasons. Leave to appeal was granted to examine the effect of the judgment of this Court in the case of Siddique Khan (PLD 1984 SC 289) on the question of the validity of the impugned judgments.
4. It is correct that the plaint was filed with deficiency in court-fee and the plaintiff was also granted time to supply the deficiency but he having failed to make the deposit was allowed further time by the Court. This procedure was held by the Appellate Court as impermissible and accordingly it was further held that the suit of the plaintiff had become time-barred. The High Court upheld the view notwithstanding the fact that the judgment of this Court in the case of Muhammad Nawaz Khan and another v. Makhdoom Syed Ghulam Mujtaba Shah and another PLD 1970 SC 37 was cited before it.
5. The view taken by appellate Court and the Revisional Court---The High Court has not been approved in the case of Siddique Khan. The trial Court having not granted the time to the plaintiff in accordance with law by determining the amount of deficient court-fee, he was entitled as of right to at least one chance after such determination under Order VII, Rule 11, C.P.C., if not more under other provisions, in the circumstances of this case. That one chance was not given to the appellant.
6. And additionally, the purported exercise of discretionary power also being unexceptionable the revisional and the appellate judgments cannot be sustained. They are accordingly set aside. The case is remanded to the Appellate Court for hearing of the appeal on merits.