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Civil Petition for Special Leave to Appeal No. 216 of 1971, decided on 14th March 1972.

(On appeal from the judgment and order of the High Court, Lahore, dated the 24th September 1971, in Civil Revision No. 956 of 1970).

Civil Procedure Code (V of 1908),

S. 149 & O. VII, r. 11-- Deficiency in court fee‑Court could, in its discretion, allow time to plaintiff to make up deficiency unless plaintiff guilty of contumacy or positive mala fides‑Pre‑emption suit unaccompanied by proper court‑fee‑Subsequent application for amendment of plaint and for paying deficiency in court fee, held, rightly allowed by Court in circumstances of case.

A person filed a suit for pre‑emption but had failed to pay proper court‑fee. Subsequently an application was made for the amendment of the plaint and for paying the deficiency in court‑fees. The application was allowed by the Court but the opposite‑party challenged this order of the Court before the Supreme Court and urged that in a suit for pre‑emption, the plaintiff should not be allowed time to make up deficiency in the court‑fees where after the filing of written statement, the plaintiff had slept for a year in making up the deficiency.

Held : Unless the plaintiff is guilty of contumacy or positive mala fides in putting in deficient court‑fees along with his plaint, the Court could in its discretion allow time to the plaintiff to put in the deficient court‑fee. In the facts and circumstances of the case it could not be said that the plaintiffs had been plainly very negligent, and had moreover, completely failed to provide any excuse for their default. They had offered to pay the deficit court‑fee and the Civil Judge had permitted them to do so. Furthermore, under Order VII, rule 11 of the Code of Civil Procedure the plaint can only be rejected in a case where the relief claimed is under‑valued and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so.

Saeed Ahmad and others v. Karam Singh P L D 1949 Lab. 380 and Jagat Ram v. Misar Kharaiti Ram and another A I R 1938 Lab. 361 considered.

Muhammad Naivaz Khan v. Makhdoom Syed Ghulam Mujtaba Shah P L D 1970 S C 37 ref.

Jamil Hussain Rizvi, Senior Advocate Supreme Court instructed by S. Ali Imam Naqvi, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing : 14th March 19 72.

This petition for special leave to appeal is from' an order of a learned Single Judge of the Lahore High Court, dismissing the petitioners' revisional application which arose out of a suit for .pre‑emption.

It appears that the respondents had filed a suit for pre emption on the 18th November 1968, for possession of the suit land which had been sold on the 9th November 1967. They had valued the suit for purposes of court‑fees at Rs. 287.80 and for purposes of jurisdiction at Rs. 863 40. Subsequently, the respon dents filed an application for amendment of the plaint and for paying the deficiency in court‑fees. The application was con tested by the petitioners but it was finally allowed by the trial Court. The trial Court held that the respondents failed to pay the proper court‑fees on account of a bona fide mistake.

Syed Jamil Hussain Rizvi, appearing on behalf of the petitioners, has strenuously contended that the respondents could not be allowed time to pay the deficient court‑fees and that the plaint should have been rejected for putting in a plaint unaccom panied by proper court‑fees. He has argued that in a suit for pre‑emption the plaintiff should not have been allowed time to put in deficit court‑fee if he had deliberately failed to pay the requisite court‑fee in spite of the fact that his attention had been drawn to the deficiency in the court‑fee by means of the written statement filed by the petitioners about one year back.

In support of his contention he has relied on certain decisions of the Lahore High Court. In Saeed Ahmad and others v. Karam Singh (P L D 1949 Lab. 380) it has been observed as follows :‑

"Under section 148, Civil Procedure Code the Court undoubtedly had discretion to enlarge time for the doing of any act allowed by the Code, even after expiry of the period originally fixed for the purpose, but it could not be said that where the plaintiff had plainly been so very negligent, and had moreover completely failed to provide any excuse for his default, that discretion had been properly exercised."

Similarly in the Full Bench decision of Jagat Ram v. Misar Kharaiti Ram and another (A I R 1938 Lah. 361.) it has been observed as follows :‑---

" . . .. . it seems to me that the discretion conferred on the Court by section 149, Civil Procedure Code, is normally expected to be exercised in favour of the litigant except in cases of contumacy or positive mala fides or reasons of a similar kind. The question of bona fides in this connection should be con strued in the sense that the word is used in the General Clauses Act and not as used in the Limitation Act. A thing should be presumed to be done bona fide, if it is done honestly whether it is done negligently or not for the purposes of judging whether the discretion under section 149 should or should not be exercised in favour of the litigant."

The case under reference has been noticed by this Court in the case of Muhammad Nawaz Khan v. Makhdoom Syed Ghulam A1ujtaba Shah (PLD 1970SC37). In the case under report this Court has observ ed as follows :‑---

"Apart from these weighty judgments it would, indeed, be anomalous if limitation is not saved in cases in which law requires the Court to allow the plaintiff to correct the valuation of the relief claimed in the suit which must necessarily entail making up deficiency in the stamp paper affixed on the plaint, but time should automatically be enlarged in cases in which the Court has the discretion to grant time to pay the whole or part of the court‑fee prescribed. This will offend against the rule of harmonious construction. The provisions of Order VII, rule 11 and section .149 are, therefore, to be read together. Consequently where the plaintiff is required to correct the valuation of the relief claimed in the suit, he shall further be required to supply the requisite stamp paper and on compliance it shall have the same force and effect as if such fee had been paid in the first instance." .

It is thus evident that unless the‑ plaintiff is guilty of con tumacy or positive mala fides in putting in deficient court‑fees along with his plaint, the Court could in its discretion allow time to the plaintiff to put in the deficient court‑fee. In the facts and circumstances of the case it could not be said that the plaintiffs bad been plainly very negligent, and had moreover, completely failed to provide any excuse for their default. They have offered to pay the deficit court‑fee and the Civil Judge has permitted them to do so.

Furthermore, under Order VII, rule 11 of the Code of Civil Procedure the plaint can only be rejected in a case where the relief claimed is undervalued and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so.

The High Court in its revisional jurisdiction has refused to exercise its discretionary power for the purpose of interfering with the lawful exercise of the discretion on the part of the Civil Judge. We are unable to say that the High Court has improperly exercised its discretion. This is not a fit case for our interference. The petition is accordingly dismissed.

Leave refused.

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