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Petitioner: MUHAMMAD SIDDIQUE AND 2 Other VS Respondent: MASTER MUHAMMAD IBRAHIM AND 3 JUDGMENT
Court Name: Lahore High Court Judge(s): Khalil-Ur-Rehman Khan, Rustam S. Sidhwa Title:MUHAMMAD SIDDIQUE AND 2 Other vs MASTER MUHAMMAD IBRAHIM AND 3
JUDGMENT
Reported As: PLD 1981 Lahore 97 Result: Appeal accepted Judgment JUDGMENT RUJTAM S. SiDHwA, 1.-This judgment grill dispose of R. F. A. No. 23 of 1980/BWP preferred by Muhammad Siddiaque, Sultan Ahmad and .Nawab Din, appellants, and R. F: A. No. 38 of 19 80/BWP preferred by Sardar Muhammad, appellant, against the consolidated judgment of the learned Senior Civil Judge, Bahawalpur, dated 23rd ', February, 1980, delivered in two suits for possession through pre-emption f, lied by the said appellants to respect of agricultural land measuring 100 kanals, situate in Chak No. 12/BC as described in their respective plaints. Since the appellants in both the appeals had instituted separate suits against the same sale which took place vide Mutation No. 353 dated 16th November, 1974, and both the suits by the rival pre-emptors challenged the same. Transaction, the said two suits were consolidated, the rival pre-emptors wire impleaded as respondents in both the suits, consolidated issues were frau4ied in the suit of Sardar Muhammad, appellant, and evidence was recorded therein and the consolidated judgment was then delivered disposing of both the suits. Since the learned counsel for the appellants an & the respondents in both the appeals have addressed arguments only on Issues Nos. 3 and 6 alone and have not touched the other issues at all, this judgment will dispose of their arguments on these two issues alone. 2. Briefly stated, the facts leading to both this suits filed by the rival pre-emptors are that one Karam Din ostensibly Isold agricultural land measuring 100 kanals situate in Chak No, 12/BC as described in the respective plaints to Muhammad Ibrahim, Wali Muhammad and Abdul Hamid, vendees/defendants, for a sale price of Rupees Eighty Thousand (Rs. 80,000). Muhammad Siddique, Sultan Ahmad and Nawab ` Din (appellants in R. F. A. No. 23/80-BWP) and Sardar
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Muhammad (appellant in R. F. A. No. 38/80-BWP) instituted separated suits for possession through pre--emption on the basis that they had superior rights of pre-emption qua the vendees/defendants (presently respondents in both the appeals) as they were owners in the estate. Both the suits having been consolidated on the request of the contesting parties, the following issues, on the pleadings of the parties, were framed "(1) Whether both the consolidated suits have been properly valued for the purposes of court-fee. ? If not, what is correct valuation ? O. P. P. & O. P. Parties. (2) Whether the jurisdictional value in Civil Suit No. 499 of 1975 has not been correctly given if so, what is correct valuation and its effect? O. P. D. (3) Whether the plaintiffs of Civil Suit No. 499 of 1975 have obtained the extension of time to make up the deficiency in the court-fee by giving wrong facts ? If so, its effect ? O. P. D. (4) Whether the plaintiffs of Civil Suit No. 499 of 1975 have not properly made up the deficiency in the court-fee ? If so, its effect ? O. P. D. (5) Whether the plaintiffs of Civil Suit No. 501 of 1975 have not deposited the deficiency in the court- fee as alleged by the Defendants Nos.4 to 6 in their written; statement ? O. P. D. (6) Whether both the consolidated suits are time-barred ? O. P. D. (7) `Whether the plaintiffs of ' both the consolidated suits have waived their rights of pre-emption and are estopped to file this suit ? O. P. D. (8) Whether the plaintiffs of both the consolidated suits have superior right of pre-emption as ; against the vendee-defendants qua the suit land ? If so; what is degree of priority between them ? O. P. D. (9) -Whether Rs. 80,000 were fixed .In good faith or actually paid as sale price of the suit land ? (10) If Issue No. 9 is not roved, then what was the market value of the ' suit land at the time of is sale ? O. P. Parties. (11) Relief." Oral evidence, as such, was not tendered, but statements were recorded and documents received, where a Later the learned Senior Civil Judge, Bahawalpur, by his impugned consolidated judgment dated 23rd February 1980, decided Issue No. 1 in favour of both sets of plaintiffs, Issue No. 2 against the defendants, Issue No. 3, in favour of the defendants against both sets of plaintiffs, Issues Nos.4 and 5 against the defendants Issue No. 6 in favour of the defendants against/ both sets of plaintiffs, Issue No. 7 against the defendants, Issue No. 8 in favour of both sets of the plaintiffs, Issue No. 9 in favour of the defendants and left Issue No. 10 as redundant. In view of the findings given on, Issues Nos. 3 and 6, both the suits of -the rival pre-emptors were dismissed with costs. Being aggrieved by the said judgment, both the rival/'pre-emptors preferred separate appeals against the same before this Court, 'which are now before us for disposal. 3. We have heard the arguments of the learned counsel for the appellants and the respondents in both the appeals and have also perused the records. The 1earned counsel for the appellants and the respondents have only addressed arguments on Issues Nos. 3 and 6, and not on any other issue. Since the matters in both the appeals relate to the same legal questions arising out of Issues Nos. 3 and 6, which are inter-linked, they will be dealt with together. 4. Before dealing with the arguments of the learned counsel for the parties, certain facts necessary in relation to the disposal of the contested issues in both the appeals may be briefly stated. In Muhammad Siddique, Sultan Ahmad and Nawab Din's suit, we find that the plaint was presented to the Court on 15-11-1975 on a court-fee of Rs. 22.50, accompanied with an application under section 149, C. P. C. For extension of time to pay the proper court-fees on the ground that as the revenue documents for the affixation of the court-fees had not been received, without which the court-fees could not be assessed, extension of time be granted to pay the court-fees. On the same day, i.e. 15- 11-1975, the learned Senior Civil Judge ordered the registration of the case, fixed 5-1-1976 as the
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next date of hearing, directed the plaintiffs to pay the proper court-fee and the zar-a panjam of Rupees Sixteen Thousand (Rs. 16,000) in Court before the next date of hearing. On 2-1-1976 the balance court-fee stamps were purchased by the plaintiffs and deposited in Court with the revenue documents on the same day. In the suit of Sardar Muhammad, we find that the plaint was presented to the Court on 15-11-1975 on a court-fee of Rs. 15 accompanied with an application under section 149, C. P. C for extension of time to pay the balance court-fees on the ground that in spite of best efforts the applicants had not been able to get copies of khcwra girdawari, jhar pedawar and nirkhnama, without which goshwara jhar pedawar could not be worked out and the not profits determined. And that therefore, extension of time of a month be granted to make good the deficiency in the court-fees. On the same day, i.e. 15-11-1975, the learned Senior Civil Judge ordered the registration of the case, fixed 5-1-1976 as the next date of hearing, directed the plaintiffs todeposit the Talbana for the service of the defendants, accepted the plaintiff's application under section 149, C. P. C. And directed the plaintiff to pay the proper court-fees and the zar-e-panjam of Rupees Sixteen Thousand (Rs. 16,000) in Court before the next date of hearing. On 3-1-1976 the balance court-fee stamps were purchased by the plaintiff and deposited in Court on 5-1-1976. It appears that no steps were taken by the defendants for formal review of the two ex parte orders of the trial Judge dated 15-I1-1975 permitting the plaintiffs in both the cases to make good thedeficiency in the court-fee by 5-1-1976, but objections were taken in the written statements with regard to the balance court-fees being paid by the two sets of plaintiffs after the expiry of the period of limitation and the suits being, therefore, time barred on .That account. In the light of these facts, we will now turn to the contentions of the learned counsel for the parties. On behalf of the appellants, it has been argued that both the suits were filed within time and that the orders which were passed by the learned trial Judge accepting the appellant's applications under section 149, C. P. C. For extension of time to make good the deficiency in the court-fees were passed on dates when the suits were within limitation and that as only one extension of time was granted for making good the deficiency which was availed off and acted upon by both the appellants and the deficiency in the court-fees were made good by 5-1-1976, the appellants could not be said to have acted mala fide or contumaciously. It was further submitted that the learned trial Court having exercised its discretion under section 149, C. P. C. In a proper manner and the appellants not having overstepped the period granted to them within which to pay the balance court-fees, and compliance of the orders dated 15-11-1975 having been recorded on 5-1-1976, the said orders dated 15-11-1975 and 5-1-1976 could not be set aside later by framing. Issue No. 3 and deciding the same against the appellants without first reviewing the said orders. In support of these submissions Muhammad Nawaz Khan v. Makhdoom Syed Ghulam Mujtaba Shah (PLD 1970 SC 37), Shah Nawaz v. Muhammad Yousaf (1972 SCMR 179), MAN Khan v. Faqir Muhammad and 4 others (1), Wall Muhammad and another v. Farooq Ahmad and 9 others (PLD 1980 B J 9), Malik Jan. Muhammad v. Shukaruddin and 6 others (1980 CLC 186), Muhammad Sharif Khan v. Ghulam Farid and others (1980 CLC 545) and Karim Bakhsh v. Qadir Bakhsh (PLD 1974 Lah. 228), were cited: 6. On behalf of the .Respondents it was submitted that though the two sets of appellants in their applications filed under section 149, C. P. C. Before the trial Court for extension of time to make good the deficient court --fees had given the impression that they had already applied for copies of statements of not profits etc., from the Revenue Authorities which they had not received till then, but in actual fact that they had not applied for the copies of the said statements prior to the date of institution of the suits, but had applied for them much later after the institution of the suits and had, therefore, played a fraud on the Court by securing orders in their favour which the Court would not have passed had the true facts been disclosed. It was further submitted that the appellants having secured the extension mala fide, the judgment of the learned Senior Civil Judge dismissing their suits was valid and proper. It was further submitted that it was incumbent on both sets of
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appellants who had instituted their suits on the last date of limitation to have taken all necessary steps before such institution to secure copies of statements of not profits, etc., so as to present their cases complete in all respects and that the same not having been done, indulgence by way of extension of time could not be granted to them as the appellants had acted mala fide and their conduct amounted to negligence. In support of his submissions, the learned counsel for the respondents cited Walayat Khatun v. Khalil Khan (PLD 1979 SC 821), Bashir Ahmad etc. v. Mukhtar Hussain etc. (1980 CLC 11), Rahim Bakhsh v. Muhammad Bakhsh and 2 others (PLD 1976 Lah. 686) and Saeed Ahmad and others V. Karam Bakhsh (PLD 1949 Lah. 380). 7. We have given our anxious consideration to this case. It cannot be denied that both suits instituted by the two sets of appellants were instituted on 15-11-1975, on the last date of limitation and were, therefore, within time. It cannot also be denied that on the same day, both sets of appellants in their respective suits made applications under section 149, C. P. C. For extension of time to pay the balance court-fees, in which applications they stated that copies of statements of the not profits, etc., had not been obtained by them and that, therefore, extension of time be granted to them to make good the deficiency in the court-fees after such copies were received from the Revenue Authorities. From the evidence on the record it appears that none of the appellants in the two cases bad, before the suits, applied for copies of statements of the not profits etc., but they did so later. In this respect, therefore, the statements made by the appellants in their applications under section-149, C. P. C. Did give the impression that some steps had been taken by them to secure the relevant documents, but what steps they were, whether oral or by written application, no reasonable inference can be drawn in that respect. Oral requests were made to the patwari to first prepare the May be some khasra girdawaris, as a starting point to initiate action to get copies of jhar pedawar and n1rakhnama later, one cannot predict, but it is not unusual to get copies of khasra glrdawaris, on oral request, though the dates of issue on the copies would not reflect the dates on which the oral requests were made, which dates are not generally entered on the copies. However, what stands out prominently is that both the applications filed by both sets of appellants were allowed by the trial Judge on 15-I1-1975 and time was granted by the trial Judge to both sets of appellants to make up the deficiency of court-fees before 5-I-1976 i. e. The next date of hearing, which was done by the appellants. Considering that the appellants deposited the deficient court-fees at the very first hearing after the institution of their suits, as directed by the trial Judge, the questions that arise for determination are (i) whether the alleged "wrong statements" made by the appellants in their applications for extension of time filed under section 149, C. P. C. Were fatal to their suits and that there--fore, both the suits could be rejected on the ground of mala fide or gross negligence. (2) whether in view of the discretion having been exercised by the trial Judge under section 149, C. P. C. To grant extension of time to the appellants, the same could be reviewed later by the trial Judge by framing issues Nos. 3 and 6 and giving a finding against the appellants in respect thereof and (3) whether, assuming that the trial Judge could not review his earlier orders dated 15-I1-1975 extending time in favour of the appellants, this Court sitting in appeal can look into the question as to whether the trial Judge did properly exercise his discretion in the matter when passing his orders dated 15-11-1975 and 5-1-1976. 8. Before dealing with the above questions, it would not be out of place to refer to section 28 of the Court Fees Act. VII of 1870 and Order VII, rule 11 read with section 149 of the Civil Procedure Code V of 1908. Section 28 of the Court Fees Act, which relates to stamping of documents inadvertently filed or received, states :- "No document which ought to bear a stamp under this Act shall be of any validity, unless and until it is properly stamped. 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
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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 relative thereto shall be as valid as if it had been properly stamped in the first instance." A plaint is a "document" within the meaning of this section and where it is not properly stamped, an order can be passed for the deficiency to be made good and on such deficient court-fee being paid, the plaint becomes a valid document as if it has been properly stamped in the first instance. Order VII, rule 11, C. P. C. Which relates to rejection of plaints, states: "The plaint shall be rejected in the following cases (a) ---------. (b) ------------------. (c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being roquirdd by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so ; (d) . . ,---------.. According to rule 13 of the said Order, the rejection of a plaint, on any of the grounds mentioned in rule 11, does not preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. Section 149, C. P. C., which relates to powers of the Court to extend time to make up deficiency of court-fees, reads as follows :- "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." Reading these provisions together intelligently, in order to preserve harmony, it would appear that a plaint which through mistake or inadvertence is filed in or received by any Court without being properly stamped, but other--wise is filed within limitation, the Court can, under section 28 of the Court Fees Act, 1870, at any stage, even though the plaint is an invalid document, order that such deficiency be made good and upon such payment the plaint will become legally valid and acquire the same force as if the court-fee has been paid in the first instance. In Jiwan Das v. Khushabi Ram (AIR 1917 Lah. 377) Scot-smith and Shadi Lai JJ., observed that suits instituted on deficient court- fees should be considered as cases received and registered by the Court due to its own mistake and negligence, which view has contributed to some judgments of this Court in which it has been observed that section 28 of the Court Fees Act, 1870, only applies to cases where suits with deficient court-fees are received by mistake or inadvertence on the part of the Court, but any such restricted view is not correct. Section 28 applies to mistakes and inadvert--ence of persons both litigants and non-litigants who not only file document in Courts and offices not properly stamped, but also to mistakes an inadvertence of persons who receive and act on such documents (such a Presiding Officers of Courts, heads of offices arid their staff). Cases no specifically falling under section 28 of the Court Fees Act, 1870, but otherwise relating to insufficiently stamped documents filed in Civil Courts, would be covered by section 149 of the Code of Civil Procedure, 1908.In respect of insufficiently stamped documents filed in Civil Courts, the scope of the Court's jurisdiction under section 149 of the Code is larger and more general and even covers the eventualities referred to in section 28 of the Court Fees Act, 1870. Where deficient court-fee is ordered to be made good on a plaint either under section 28 .Of the Court Fees Act, 1870, or section 149 of the Civil Procedure Code, 1908, and the plaintiff fails to do so within the initial time, as fixed by the Court, or any extended time as may be granted under section 148 or 151 of the Civil Procedure Code, the plaint may be rejected under clause (c) of rule 11 of Order VII, C. P. C. The rejection of the plaint, however, does not preclude
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the plaintiff from filing a fresh plaint again in respect of the same cause of action bearing full and proper court-fee.These provisions read together, therefore, show that the plaintiff who would be hit by the disabling provisions of the Court Fees Act, which is a fiscal statute, due to minor or major delinquencies, or of Order VII, rule 11 of the Civil Procedure Code, 1908, for contumacy, is otherwise saved. There is no element of limitation incorporated in these provisions and no such element can, therefore, be directly imported into these provisions so as to unduly deflect the discretion of the Court into any guided channels when deciding applications for grant of permission to make up deficiency of court-fee. Section 28 of the Court Fees Act, 1870, and section 149 of theCivil Procedure Code, 1908, are liberally worded as to save plaints not property stamped from the charge of expiry of limitation, after deficiency is made up, provided the initial defect was not deliberate (mala fide) or due tot gross negligence or due to some similar reason, which the court considers as one gravely prejudicing the plaintiff to secure such a concession. When exercising the discretion in granting time to make up deficiency of court-fee the matter is basically one between a party and the State regarding the recovery of State revenue and the penalty provided is not for the benefit of the opposite-party, but for the State. The discretion, though indirectly mean for fiscal recovery, is provided to meet-those bona fide cases where person by inadvertence or mistake has paid less court-fee or where a person for want of relevant documents or material necessary t determine and calculate the proper court-fee payable, has not been able to do so and has axed tentative court- fee on his document, or where a person, who notwithstanding diligence and fair efforts made, has not been able to secure the proper court fee stamps in time. It is only in extreme cases which show that a party has deliberately avoided payment of full court-fee which he knew of and could have paid or having bona fide paid less court-fee and having been given fair time to make good the deficiency. Has not exercised due deligence in paying the same or has shown contumacious disregard to the orders of the Court, that discretion should be withheld. The view of this Court in Jagat Ram v. Misar Kharaiti Ram and another (AIR 1938 Lah. 361), Karim Bakhsh v. Qadir Bakhsh (PLD 1954 Lah. 228) and Muhammad Sharif Khan v. Ghulam Farid (1980 CAL 938 C Lah 545 361) and of the Supreme Court in Shah Nawaz v. Muhammad Yusuf (1 972 SCMR 179 8) that discretion should normally be exercised in favour of the litigant" except in cases of contumacy or positive mala fide or reasons of a similar kind" correctly reflects the proper principle applicable in such cases. For instance, to hold in every case in which a suit is instituted on the last date of limitation-and in which the plaint has been filed with deficient court-fee that discretion should be exercised somewhat differently than if the suit where instituted a month or two earlier, would be to unduly load the dice against the more essential factors which are relevant for its consideration. In these circumst--ances, to strike any balance between the provisions of section 28 of the Court Fees Act, 1870, or section 149 of the Civil Procedure Code, 1908, with section 3 of the Limitation Act, 1908 for the purposes of protecting the opposite-party's rights, is indeed a difficult task. It is one thing to say that the Court, whilst considering whether discretion should be exercised in favour of the plaintiff to make good the deficiency, due to mala fide or negligence or contumacy on the part of the plaintiff, considers his conduct reprehensible as not justifying the exercise of discretion in his favour, and in support of its view also considers the plea of limitation set up by the defence as one further strong reason justifying it in not permitting the plaintiff to capitalise on inequity, but it is another thing to say that when ex--ercising its discretion, the defendant's plea of limitation should be taken into consideration as a governing factor when weighing the material placed before it for the purposes of deciding whether discretion should be exercised by it or not. The former approach would be correct, but not the latter. To haphazardly induct the element of limitation into these sections, whilst dealing with the discretion available to a Court in permitting court--fee deficiencies to' be made good, would be to introduce a foreign element into the body context of these sections, which these sections neither permit nor intend. The view of the Supreme Court in respect of pre-emption suits
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instituted on the last date of limitation on deficient court-fees has recently suffered some shift. Earlier, in Shah Nawaz's case where the plaintiffs made good the deficiency after a year of the filing of the written statement and the Court had permitted them to do so, the Full Bench of the Supreme Court held that unless the plaintiffs were guilty of contumacy or positive mala fides, the Court could allow time to the plaintiffs to make good the deficiency and that as the plaintiffs had not failed to provide excuse for their default, the discretion could not be…
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