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Writ Petition No. 4160 of 1982, decided on 30th October, 1982.

‑‑ S. 5 read with Court Fees Act (VII of 1870), S. 28‑Use of plain paper with impressed stamps and a plain papers to be attested by signatures of person executing such ,document yet merely directory for having not prescribed any penal consequences for failure to do so‑ First part of S. 28 of Act 1870 although styling a document not properly stamped as invalid yet its second part empowers Court to allow party to remove such defect‑Document on removal of defect, held, deemed to have been validly filed at very outset.

Maqbool Elahi Malik for Petitioner.

This writ petition is directed against the order of an Additional District Judge of Lahore by which he had dismissed a revision petition filed b the petitioner, Syed Salamat Ali Shah. He is defendant in a suit brought b the respondent, National Bank of Pakistan, for recovery of Rs. 31,913.90 Court‑fee of Rs. 2,390 was required to be paid on the plaint of the suit: The respondent paid Court‑fee of Rs. 390 in three sheets signed by its counsel The Court‑fee of Rs. 2,000 consisting of four sheets had not been signed b any person on behalf of the respondent or its counsel. The petitioner therefore, made an application, under O. VII, r. 11, read with section 15 of the Code of Civil Procedure, for rejection of the paint. His plea was that the Court‑fee had not been paid in accordance with the provisions o rule 6 of the. Punjab Court Fee Stamp Rules, 1934, hereinafter referred to a the said rule. The Senior Civil Judge, Lahore, who was seized of the suit, declined to reject the plaint and permitted the respondent to sign the unsigned sheets. The reasons given by the learned Senior Civil Judge in support of his order are as follows :‑

"The provision no doubt has prescribed observance of certain practice but that instruction in principal is directory in nature. Its nor compliance cannot render the document itself illegal or invalid ab intio. In other words, the omission is curable and if formality is fulfilled then the same can be treated as valid document. So I did not fin any force in the argument of the learned counsel for the defendant. The suit itself cannot be thrown out by the omission pointed of by the defendant. The plaintiff has paid the Court‑fee and the formality of putting signatures on the sheet of stamp paper is not that nature that the plaint should be treated as deficiently stamped. The rejection of plaint is a penalty. Law presume that no pen, action will be taken by the Court unless specific and explicit provision of law exist in that respect. In the instant case, no specific and explicit provision of law has been cited whereby non‑observant of the aforesaid formality non‑suit the plaintiff: Moreover, this mission is curable and now sheets of stamped papers can be allowed to be signed. Now the plaintiff is permitted to sign the paper left unsigned and that will not cause any miscarriage of justice to the defendant. On the other hand if the suit is dismissed or the plaint is rejected for want of observance of this formality, then it will cause miscarriage of justice to the plaintiff. The law does not presume indulgence in technicalities to that extent that the scope for adjudica tion of bona fide disputes between the parties should be minimised. Rather intention of law is that such dispute should be settled on merits."

Feeling aggrieved by the order of the learned trial Court, the petitioner filed a revision petition before the learned Additional District Judge which was dismissed on the ground that the provisions of rule 6 are directory in nature as no penal consequences have been provided thereunder. Being dissatisfied with the orders of the learned lower Courts the petitioner has now invoked the Constitutional jurisdiction of this Court to assail those orders.

2. It was contended by learned counsel for the petitioner that the said rules have been framed under section 27 of the Court Fees Act, 1870, hereinafter referred to as the said Act, and since the plaint was not stamped in accordance with the said rules it was no plaint in the eye of law. In this connection, reliance ,placed by him on the first part of section 28 of the said Act.

3. Rule 6 on which the petitioner's case is based reads as under :‑

"6. Direction for the use of plain paper with impressed stamp.‑When one or more impressed stamps used to denote a fee are found insufficient to admit the entire document being written on the side of the paper which bears stamps, so much plain paper may be joined thereto as may be necessary for the complete writing of the document, and writing on the impressed stamps and on the plain paper shall be attested by the signature‑of the persons or persons executing the document."

Section 28 of the said Act, on which too reliance was placed by the learned counsel, is to the following effect :‑ ,

"28. Stamping documents inadvertently received.‑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 may be, or in the case of 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 proceedings relative thereto shall be as valid as if it had been properly stamped in the first instance."

4. It will be observed that rule 6 does not spell out penal consequences for not affixing the signatures as required by that rule. There is also some force in the argument of learned counsel for the petitioner that the signature' are not affixed as required by the said rule, the document shall not be deemed to have been proper stamped. The first part or section 28 of the said Act does provide that if a document is not properly stamped, it is trot a valid document. The second part of section 28, however, empowers the Court to allow a party to remove the defect in regard to the affixing of stamps on such document. It has also been enacted that on the removal; of such defect, the document shall be deemed to have been validly filed at the very outset. The learned Senior Civil Judge, therefore, had the jurisdiction to permit the respondent to make amends by affixing signatures on those sheets which had not already been signed by him in terms of provisions of rule 6. Admittedly, the respondent had deposited Court‑fee stamps of the requisite amount within the period of limitation. Thus, he had parted with the amount of the Court‑fee required to be paid and the same had gone into the State exchequer. There is nothing to indicate that he had avoided to made payment of proper Court‑fee or had deliberately omitted to sign the four sheets in question. Absence of his signatures on those sheets was a flaw of technical nature which has been cured under the orders of the learned trial Court. These orders, as explained above, could be made by the learned trial Court in pursuance of the jurisdiction conferred on it by the second part of section 28 of the said Act. Even if the said learned Court had erred in this behalf it does not call for any interference by this Court.

5. This petition, therefore, fails. It is dismissed in limine.

S. A. H. Petition dismissed.

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