PLD 2023 SC 912
Procedural law --- Substantial justice ---- Procedure is mere machinery and its object is to facilitate , not obstruct , the administration of justice --- Civil Procedure Code , 1908 ,should , therefore , be considered liberally and should not be allowed to undermine substantial justice .
Court fee , payment of Deficiency --- Scope of discretion of the Court under section 149 , C.P.C. in context of payment of court fee explained .
PLD 2023 SC 912
Discussion:
(1) Powers of Court under Section 149, CPC
(2) Sections 4 and 6 of the Court Fees Act, 1870.
(4) Distinction between Sections 148 & 149 CPC.
(5) The Court is bound to ascertain any deficiency in the court fee and technicalities should be avoided.
PLD 2023 SC 912
It is discernible from Section 149, CPC that it expounds an exception to the set of guidelines and rules encompassed under Sections 4 and 6 of the Court Fees Act, 1870. The power of the Court conferred under Section 149 is somewhat transient in nature and enunciates an interim measure only; it does not, however, invest any power to exempt the payment of the requisite court fee altogether. The exercise of this discretion by the Court at any stage is, as a general rule, expected to be exercised in favour of the litigant on presenting plausible reasons which may include bona fide mistake in the calculation of the court fee; unavailability of the court fee stamps; or any other good cause or circumstances beyond control, for allowing time to make up the deficiency of court fee stamps on a case to case basis. The discretion can only be exercised where the Court is satisfied that sufficient grounds are made out for non-payment of the court fee in the first instance. It is worth reiterating that this power is always subject to the discretion of the Court in appropriate and fit cases and the litigant cannot claim the exercise of this discretion as of right or privilege in every case. A generous or easygoing view cannot be taken to cover up a premeditated strive or endeavor to avoid the payment of requisite court fee perfunctorily. The expression “at any stage” alluded to in Section 149 accentuates that the deficiency, if any, on account of court fee can be ordered to be made good by the Appellate Court at any stage of proceedings in appeal. The provision delineated under Order VII, Rule 11 and Section 149, CPC have to be read collectively and in unison. In case of deficiency in the court fee, the Court cannot dismiss the suit or appeal without pinpointing the inadequacy of court fee and then fixing a timeline for payment. After compliance of the order within the stipulated timeframe, it shall have the same force and effect as if the court fee had been paid in the first instance. On the face of it, Section 149 relates to the sanction of time for the payment of court fee in the beginning, while Section 148 is germane to the enlargement of time where any period is fixed or granted by the Court for any act prescribed or allowed by the CPC, and allows the Court to, in its discretion, from time to time, enlarge such period even where the period originally fixed or granted may have expired.
It goes without saying that when time is allowed or extended by the Court for the payment of the requisite court fee, such order cannot be recalled unless it formally reviewed. The policy of the law with the gateway of a beneficial provision is not intended to penalize or victimize the litigant on account of a deficiency in court fees. By no stretch of imagination have the laws vis-à-vis court fees and valuation of suits been envisioned to make available an apparatus to the parties under litigation to circumvent the decisiveness of the lis on merits or to elongate the life of the lis by raising objections as to court fees and valuation of the suit; therefore it is also an obligation of the Court simultaneously that, while admitting or registering the plaint or appeal, it should check whether the requisite court fee has been paid or not and, in case of deficiency or filing application under Section 149 CPC, pass necessary orders for compliance without keeping the application pending for an unlimited period of time.
PLD 2023 SC 912
The function of the Court is to do substantial justice between the parties after providing an ample opportunity of hearing which is one of the most significant components and elements of a fair trial. The procedure is mere machinery and its object is to facilitate, not obstruct, the administration of justice. The CPC should, therefore, be considered liberally and should not be allowed to undermine substantial justice. A statute or any enacting provision therein must be so construed as to make it effective and operative. The distinction between substantive law and the law of procedure is a very fine one, but for the purposes of jurisprudence a distinction is made particularly from the point of view of administration of justice. This Court in the case of Imtiaz Ahmad v. Ghulam Ali and others (PLD 1963 SC 382) held that the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defects. Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his.
PLD 2023 SC 912
Statute law can be either substantive or procedural: the substantive law defines the rights while the procedural law deals mainly with the procedure or remedies. It would be worthwhile to cite a passage from Corpus Juris Secundum, Volume 21, page 136 that “while a Court may be expressly granted the incidental powers necessary to effectuate its jurisdiction, a grant of jurisdiction, in the absence of prohibitive legislation, implies the necessary and usual incidental powers essential to effectuate it, and subject to existing laws and constitutional provisions, every regularly constituted Court has power to do all things that are reasonably necessary for the administration of justice within the scope of jurisdiction and for the enforcement of its judgments and mandates.” While according to Salmond, the law of procedure may be defined as that branch of the law which governs the process of litigation. It is the law of actions “jus quod ad actiones pertinet” which includes all legal proceedings civil or criminal. Salmond has drawn the following distinctions between substantive law and procedural law: (i) Substantive law determines the conduct and relations of the parties inter se in respect of the matter litigated, whereas the procedural law regulates the conduct and relations of Courts and litigants in respect of the litigation; (ii) Substantive law deals with the ends which the administration of justice contemplates while the procedural law deals with the means and instruments by which the ends of administration of justice are to be attained; (iii) The question as to what facts constitute a wrong is determined by the substantive law, while what facts constitute proof of a wrong is a question of procedure; (iv) Substantive law defines the rights whereas the law of procedure defines the modes and conditions of the application of one to the other; and (v) Substantive law relates to the matter outside the Courts, whereas the procedural law regulates affairs inside the Courts.
PLD 2023 SC 912
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