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--- O. XXXII, rr. 2 & 3-Minor-Contention that plaintiffs being minor as such duty of Court to look after their interest and on account of folly of next friend of minor's plaint could not be rejected and instead delay caused in making up deficiency be con doned, held, has no force-Mere fact that plaintiffs are minors not sufficient for condonation of delay-Next friend coming to Court for benefit of minors, to look after interest of minors and if failed to do so or showed some slackness not a ground for indulgence Next friend acting prejudicially to minors or causing harm to them intentionally or with mala fide intention, minors on attaining age of majority can sue next friend for damages or for setting aside decision.

P L D 1964 Pesh. 182 ; P L D 1965 Lab. 686 ; A I R 1936 Cal. 221 ; P L D 1960 Kar. 174 and P L D 1975 Lab: 7 ref.

---- S. 149 & O. VII, r. 11-Deficiency in court-fee, making up of - Case file sent to some other place for safe custody and not available till time allowed for making up of deficiency in court-fee--Revenue stamps even if supplied could not be attached to file in circumstances--Plaintiff making up deficiency three days before date mentioned in notice-Court entertaining new suits and not bearing pending suits in those days-Failure to make up deficiency, held, not without good reason and in no way based upon any mala fide intention.

--- Ss. 148 & 149 and O. VII, r. It -Court-fee -Deficiency, making up of - Delay in making up of court-fee, held, can be condoned under S. 148-Deficiency having been made up before expiry of period of limitation, no valuable right accrued to opposite party in circumstances of case-To allow time within discretion of Court and to be exercised judiciously-Order for rejection of plaint cannot be claimed as of right.

P L D 1965 Pesh. 81 ref.

--,-- Ss. 148, 149 & O. VII r. II-Court-fee, deficiency in making up of-Plaint, rejection of-Court accepting court-fee stamps and not electing to reject plaint-Plaintiff not feeling necessity of filing application for condonation of delay-Plaintiffs on receipt of notice for rejection of plaint filing application for condonation of delay in making up of deficiency and before expiry of period of limitation for filing of suit--Held, Court should have condoned delay instead of rejection of plaint in circumstances of case.-. [Plaint].

Sh. Inayat Ali for Appellants.

M. M. Bhatti with S. Muhammad Hussain for Respondents.

Date of bearing : 21st December, 1976.

This regular first appeal as directed against the order dated 8th May, 1974 of the learned administrative Civil Judge, Rahimyarkhan whereby the application of the appellant given under section 148, C. P. C. for the condonation of delay in making up the deficiency in the court-fee was rejected and accepting the application for the respondents given under Order VII, rule 11, C. P. C. the plaint was rejected.

2. The brief facts of the case, relevant for the decision of this appeal, are that the suit was brought by the appellants on a court-fee of Rs. 1,225. Thereafter the Court directed the appellants to make up the deficiency in the court-fee amounting to Rs. 183.75 before 25th of September, 1973. In the meantime the whole record of the Court was sent to Abu Dhabi for safe custody on account of heavy floods with the result that the file on 24th September, 1973 was not avail able. On 29th September, 1973 notices in the present case were issued after the record was received back, for 15th January, 1974. The appellants made up the deficiency in the court-fee on 12th January, 1974 but did not make any. application for the condonation of delay. On 28th February, 1974 the respondents made an application praying for the rejection of the plaint under Order V1I, rule 11, C. P. C. on the ground that deficiency in the court-fee had been made up beyond the time allowed by the Court. On 7th March, 1974 the. appellants made an application under section 149, C. P. C. for the condonation of delay. It was dismissed by the impugned order and the plaint was rejected.

2. The points formulated by the learned counsel for the appel lants are two, No. 1 that the plaintiffs/appellants are minors, it was, therefore, the duty of the Court to look after their interest and thus on account of the folly of the next friend . of the minor appellants, the plaint could not have been rejected and instead the delay should have been condoned, No. 2 that the default was not intentional and deliberate, because the major portion of the court-fee had been paid from very beginning and the small fraction was paid later on. Learned counsel for the appellants has argued that since still the limitation for bringing the suit was available to the appellants on the date on which the deficiency on the court-fee, was made up, the delay should have been condoned exercising the discretion in favour of the appellants. He had cited a number of authorities but P L D 1964 Pesh. 182, P L D 1965 Lab. 686, A I R 1936 Cal. 221, P L D 1960 Kar. 174 and P L D 1975 Lab. 7 only need discussion.

3. Before these authorities are surveyed it is necessary to point out that on 12th January, 1974 when the appellants made up the deficiency in the court-fee, the Court made observation that the deficiency had been made up after the expiry of the time allowed for the purpose and that no prayer had for the condonation of delay been made.

4. So far as the first point raised by the learned counsel is con cerned, the same is without force, The mere fact that the plaintiff appellants are minor is not sufficient for the condonation of delay. The next friend who thought of coming to the Court for the benefit of the minor appellants had to look after the interest of the minors and if he failed to do so or showed some slackness, it could not be a ground for indulgence. The reason is that it is not the duty of the Court to look after the interest of the minor plaintiffs, because the presumption is that who whenever comes forwards to bring a suit for the benefit of minors, will not act prejudicially to the minor plaintiffs and even if does so and causes harm to them intentionally or with male fide intention, the minors on obtaining the age of majority can sue him for damages or for the setting aside of the decision based upon, according to them, on fraud or mala fide intention. On the other hand the Court has to look after the interest of the minor defendant because it is, the duty of the Court to see whether the guardian appointed by the plaintiff of the minor defendant has no interest in clash with the defendant. In cases where a suit is brought by 'a minor without a next friend the plaint according to 'rule 2 of Order XXXII is to be taken off the file with costs to be paid by the pleader or any person by whom it was presented. Whereas according to rule 30 Order XXXII it is obligatory for the Court to appoint for the minor defendant a proper person to be guardian for the suit.

5. So far as the authorities cited by the learned counsel for the appellants are concerned, the observations made in P L D 1.964 Pesh. 182 are

"Considering the circumstances of the case and the view we have already expressed, namely that the mistake in this case was a bona fide mistake of law, we are of the opinion that it is a fit case where the discretion vesting in us under section 149,C. P. C. should be exercised in the favour of the petitioner."

For holding so reliance was placed upon A I R 1937 Pesh. 3 and A I R 1938 Lab. 361.

6. The observations made in P L D 1963 Lab. 686 are that

"The Court Fees Act was passed in order to secure revenue for the benefit of the State and not to arm a litigant with a weapon of technicality to harass his opponent. The Courts are to be acute to see that litigants should have no chance of escape or no means to secure the evasion of tax it would be extremely dangerous for them to leave the question of requisite court-fee to depend not on the nature of the plaintiff's claim but on what the defendants choose to plead, true or false.

The observations made in A I R 1936 Cal. 221 are

"In view of section 148 the time granted to pay deficit court-fee can be enlarged from. time to time. This section expressly em powers the Court to extend any time fixed by it even after the expiry of the period originally fixed.

In P L D 1962 Pesh. 142 it has been observed

"A bona fide mistake in the matter of valuation should be condoned. The High Court will interfere where the lower Courts have not exercised their discretion in a proper manner or in accordance with correct principles."

6-A. On the other hand learned counsel for the respondents has relied upon P L D 1970 Kar. 295 and P L D 1955 Pesh. 81.

The observations made in the first mentioned authority are

"Section 149, C. P. C. enacts an exception to that rule by con ferring a discretion on the Court to allow the party to make good the deficit court-fee at any stage of the proceedings but the pay ment of fee under this section cannot be claimed by a party as a matter of right. It is the discretion of the Court to allow or not to allow such payment. Needless to add, that this discretion is not to be exercised arbitrarily or capriciously but judicially and with the utmost care. The reason for the caution is obvious. When an appeal is not filed in time with a proper court-fee the appeal be comes barred and the respondent gets a valuable right. The Court should not, therefore, exercise the discretion under this section to his prejudice except where sufficient grounds exist for the non-payment of the full court-.fee in the first instance."

The observations made in the second mentioned authority are :-

"When the non-payment of the requisite court-fee on the memo randum of appeal and the copies of the decree-sheet and the judg ment was deliberate, and due to the negligence of the law officers of the Provincial Government and the appeal was filed on the last day of limitation.

Held, that there was no legal appeal filed by the Government and the learned District Judge was absolutely wrong in exercising his discretion under section 149, C. P. C. in favour of the Govern ment.

Where the Court is authorized to exercise a discretion then the elementary principle of law is that the discretion should be exercised not capriciously but judicially and with proper care and caution."

7. When the authorities cited by both sides are surveyed in the light of the facts of the case, it becomes quite clear that the appel lants had made a good case for the exercise of the discretion in their favour, before the time granted by the Court could expire, the very record including the file of the case in hand was sent to safe place to be saved from the destruction by floods. Even if the appellants had provided revenue stamps of the court-fee to make up the deficiency, the same could not have been attached to the file because the same was not available in the Court nor the Court could have been in position to see whether the court-fee stamps had been provided within the time allowed by it. A proper order could be passed and the court-fee stamps could be placed on the relevant file when the said file was available with the Court. As soon as the notices were serve upon the appellant, they appeared before the Court 3 days before tit date mentioned in the notices and made up the deficiency in the court-fee. Since the file before that was not available, this appears to be the reason that the Court received the court-fee stamps, placed them on the file and passed an order that the deficiency in the Court fee had been made up beyond the time and that an application for condensation had been made and did not elect to reject the plaint under Order VII, rule 11, C. P. C. This is true that the Courts were function in those days but they were entertaining new suits and were not hearing the already pending ones because their files were not available and had been sent to a safe place. It would have been in the fitness of things if the appellant had, within the time allowed by the Court made up the deficiency in the court-fee but failure on their part was not without good reason and in no way based upon any mala fide intention.

8. Learned counsel, for the appellants has argued that since the deficiency in the court-fee was made up before the expiry of limitation for bringing the suit, the Court should have exercised the discretion in favour of the appellants. Learned counsel for the respondents has on the other hand argued that although the deficiency in the court-fee was made up before the expiry of time for bringing the suit but at the time the application for condonation of delay was made, the said limi tation had expired and thus a valuable right had accrued to the respon dent and the trial court acted rightly in rejecting the plaint. We found/ force in the argument of the learned counsel for the appellants but, do not find any force in that of the learned counsel for, the respondents. Delay can be condoned under section 148, C. P. C. even after the period allowed for doing as act has expired. Since the deficiency in the court-fee had been made up before the expiry of limitation for bringing the suit and there were cogent grounds for not making up defi ciency within the time allowed by the Court, it could not to be said that any valuable right accrued to the respondents by the lapse of time. P L D 1965 Pesh. 81 is not helpful to the respondent, because in that case the appeal was brought on insufficient court-fee on the last date of limitation and the question of the condonation of delay and allowed the appellant of that case for making up the deficiency in the court fee arose when the period for bringing the appeal had already so the authority is distinguishable from the facts of the present case.

9. The other authority cited by the learned counsel rather sup ports the appellants. There is no denying of the fact that it is the discretion of the Court to allow time and such an order cannot be claimed as of right. The discretion, however, is to be exercised judi ciously.

10. No doubt the appellants did not make the application for the condonation of delay in the beginning, but since the Court accepted the court-fee stamps produced by them to make up the deficiency in the court-fee and did not elect to reject the plaint they did not feel the necessity of making such an application. When notice of the application given by - the respondents for the rejection of the plaint was served upon the appellants, they coming to know that the Court wanted to consider the point, made an application for condonation of delay. Since there were good grounds for not making up the defici ency at the proper time and the period of limitation for bringing the suit had not expired at the time the deficiency in the court-fee was made up the learned trial Judge should have condoned the delay. If the learned trial Judge had proceeded to consider the point whether the plaint was liable to be rejected at the time the deficiency in the court-fee was made up, there would have been an opportunity available to the appellants to make an application for condonation of delay before the expiry of limitation for bringing the suit. Likewise if the plaint had been rejected soon after the deficiency in the court-fee had been made up the appellants would have been in a position to bring another suit because at that time still period of limitation was available to them. They have, therefore suffered due to the act of the Court. If the learned trial Judge had not recorded the order that - the deficiency in the court-fee had been made up beyond the time allowed by the Court and that permission to make up the deficiency had not been obtained, it could be said that the Court was not conscious of the fact of delay but when with full knowledge of the delay and the fact that permission had not been taken, the deficit court-fee was accepted and the appellants were not called upon to show cause why not the plaint be rejected under Order VII, rule 11, they were justified in not making an application for the condonation of delay in the beginning. The discussion of the authorities cited by the learned counsel for the parties shows that under section 148, C. P. C. time can be extended even after it has expired provided there are sufficient grounds. As there were cogent grounds in the case, the learned trial Judge erred in not exercising his discretion given to him by section 148, C. P. C. in favour of the appellants.

11. In view of what has been observed above we accept the appeal and setting aside the impugned order condone the delay in making up the deficiency and remand the case with the direction that it be decided on merits. The case has been remanded under Order XLI, rule 23. The court-fee paid on the memorandum of appeal, there fore, shall be refunded to the appellants.

M. A. K. Appeal accepted.

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