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Civil Petition for Special Leave to Appeal No. 1094 of 1980, heard on 14th February, 1981.
(On petition against the judgment of the Lahore High Court dated 20-4-1980 passed in Civil Revision No. 350/1977).
-- S. 149 & O. VII, r. 11(c)-Court-fee-Deficiency-Permission to make good-Provisions of O. VII, r. 11(c) and S. 149 of Civil Pro cedure Code, 1908-To be read and applied together where deficiency in court-fee required to be made good after expiry of period of limita tion-Act of not paying proper amount of court-fee contumacious or actuated by tnala fides-Court not to grant indulgence to plaintiff of permitting him to make good court-fee after expiry of period of limitation-Court-fee amounting to Rs. 5,485 but only a sum of Rs. 10 pair) as court-fee and suit also filed on last date of period of limitation Conduct of plaintiff being actuated by mala fides, lower Court, held, rightly refused to permit plaintiff to make good deficiency in court fee.
Mst. Walayat Khatum v. Khalil Khan and another P L D 1979 S C 821 ref.
Ch. Muhammad Farooq, Senior Advocate Supreme Court and Sh. Abdul Karim, Advocate-on-Record for Petitioners.
Muhammad Aslam, Advocate-on-Record and Q. M. Saleem, Senior Advocate Supreme Court for Respondents Nos. 2 and 3.
Date of hearing : 14th February, 1981 (Lahore).
The petitioners filed a civil suit for possession by pre-emption on the last date of the period of limitation. Full court-fee was not paid and an averment was made in the plaint that the definiency will be made good in due course. The learned counsel for the defendants raised a preliminary objection and demanded that the plaint should be rejected because it was not properly stamped for the purpose of court-fee when it was presented to the Court. He also assailed the order of the Court in allowing the plaintiff to make good the deficiency within a particular period. The learned Civil Judge by his order dated 17-1-1977 rejected the application.
2. A revision petition was filed by the defendants which was accepted by the High Court. Hence this petition for special leave to appeal by the plaintiff.
3. It has been urged before us that when the plaint is presented, Order VII, rule 11 of the C. P. C. gets attracted to it and if the same is deficient of making it good.
4. The learned Judge of the High Court has examined all the relevant rulings on this point as well as on the question as to when and to what extent is section 149 of the C. P. C. applicable to such cases. Relying upon the view held consistently by the various Courts and more particularly on the judgment of one of us (Karam Elahee Chauhan, J.) in Mst. Walayat Khatun v. Khalil Khan and another (PLD 1979 SC 821) the learned Judge of the High Court found that the provisions of Order VII, rule 11 (c) and section 149 have to be read and applied together in a matter where the deficiency in court-fee is to be made good after the expiry of the period of limitation. The learned Judge went on to correctly expound the law by saying that in cases where the act of not paying the proper amount of court-fee is contumacious or actuated by positive mala fides the Court will not grant the indulgence to the plaintiff of permit ting him to make good the court-fee after the expiry of the period o limitation. In the present case there is no doubt that the conduct was contumacious because although the court-fee amounted to Rs.5,485 only sum of Rs. 10 was paid as court-fee and the suit was - filed on the last dot of the period of limitation. That being the case, we cannot find any fault with the order of the learned Judge of the Lahore High Court and would, therefore, dismiss this petition and refuse to grant leave to appeal.
Petition dismissed.
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