Sections 6, 10, 28 of Court Fee Act, 1870, a fiscal law, on one hand, and Section 149 and Order VII Rule 11 (b) & (c) of the Code of Civil Procedure 1908, a procedural law, on the other, provide a complete code on the point of time for payment of Court-fee.
In order to appreciate the said point-I hereunder reproduce the said provisions:
Except in the Courts hereinafter mentioned, no documents mentioned, no document of any kinds specified as chargeable in the first or second schedule to this Act annexed shall be filed, exhibited or recorded in any Court of Justice, or shall be received or furnished by any public officer, unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said schedules as the proper fee for such document.
Section 10: Procedure where nett profits or market-value wrongly estimated:
(i) If in the result of any such investigation the Court finds that the nett profits or market value have or has been wrongly estimated, the Court, if the estimation has been excessive, may in its discretion refund the excess paid as such fee: but, if the estimation been insufficient, the Court shall require the plaintiff to pay so much additional fee as would have been payable had the said market-value or nett profits been rightly estimated.
(ii) In such case the suit shall be stayed until the additional fee is paid. If the additional fee is not paid within such time as the Court shall fix, the suit shall be dismissed.
Section 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 a 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 proceeding relative thereto shall be as valid as if it had been properly stamped in the first instance.
Section 149: Power to make up deficiency of Court-fee:
Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to Court-fee has not been paid the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such Court-fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such had been paid in the first instance.
Order VII Rule 11: Rejection of plaint:--The plaint shall be rejected in the following cases:
(a) ----------------------------------------------------------------
(b) 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;
(c) Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court, fails to do so;
(d) ----------------------------------------------------------------
So far as the provision of Court Fee Act, are concerned it will be noticed that Section 6, emphasizing the obligation of a plaintiff to pay the requisite Court-fee on any of the documents enumerated therein at the time of their filing, has emphatically forbidden their filing unless in respect of such documents there be paid a fee of an amount not less than that indicated by either of the Schedule as the proper fee payable for such document.
No indulgence is allowed in view of the said stringent provision.
The word 'document' includes plaint, written statement pleading a set off or counter claim, memorandum of appeal, cross-objection, presented to any civil Court or Revenue Court, as detailed in Clause I of Schedule I.
Section 10(ii) provides that if plaintiff’s estimation of value of the suit is insufficient and the Court requires him to pay so much additional fee as would have been payable had the said market value or net profits been rightly estimated and he fails to pay, then the Court shall stay the suit until the additional fee is paid and if the additional fee is not paid within such time as the Court shall fix, the suit shall be dismissed.
The laxity shown under the said provision was occasioned due to error likely to occur in the estimation of nett profits or market value of the suit property.
Section 28, reiterating the invalidity of a document unless and until it is properly stamped in its first part, has provided some accommodation to a plaintiff, in a situation where a document is, through mistake or inadvertence, received, filed or used in any Court, without being properly stamped, the presiding judge 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 proceeding relative thereto shall be as valid as if it had been properly stamped in the first instance.
It will be seen that it is only 'mistake' or 'inadvertence' in reception, filing, or use of a deficiently stamped document in a Court, which provides an opportunity to the plaintiff to make payment of deficient Court-fee subsequent to the filing of the suit.
The mistake or inadvertence is shared by both the Court and the plaintiff. The word 'received' and 'use' are related to Court, while 'filed' is related to the plaintiff.
In PLD 1981 Baghdad-ul-Jadid 23, by reference to scope of Section 28, it has been held:
"Plaint through mistake or inadvertence filed in or received by any Court without being properly stamped, but otherwise filed within limitation—Court, held can under Section 28 of Act VII of 1870 at any stage even though plaint be an invalid document, order such deficiency to be made good and upon such payment plaint becomes legally valid and acquires same force as though Court-fee paid in the first instance."
"Discretion though indirectly meant for fiscal recovery, yet provided to meet those bona fide cases or where a person by inadvertence or mistake paid less Court-fee or where a person for want of relevant documents or materials necessary to determine and calculate proper Court-fee payable, not enable to do so and affixed Court-fee on his document, or where a person who notwithstanding diligence and fair efforts, not able to secure proper Court-fee stamps in time."
The said section is not, however, available to a plaintiff, who, out of mala fide, negligence, or contumacy, does not pay the requisite Court-fee on plaint.
It is so held in the above referred precedent,
"Court whilst considering whether discretion should be exercised in favour of plaintiff to make good deficiency in Court-fee, due to mala fides or negligence or contumacy on part of plaintiff, considers his conduct reprehensible as not justifying exercise of discretion in his favour and in support of its view also considers plea of limitation set up as defence as one further strong reason justifying it in not permitting plaintiff to capitalize on inequity."
It will be seen that Court-fee Act is self-sufficient in the matter of realization of Court-fee and does not require any other law to supplement it.
However, Code of Civil Procedure, 1908, incorporates Section 149 and Order VII Rule 11(b) & (c) which are subordinate to the above stated provisions of Court Fee Act, and are to be operative subject to it.
Section 149 of the CPC is subject to Section 28 of Court Fee Act.
However, contrary to this position it has been held in PLD 1981 BJ 23 that:
"Cases not specifically falling under Section 28 of Court Fee Act, 1870, but otherwise relating to insufficiently stamped documents filed in Civil Courts are covered by Section 149 of the CPC."
The said view, with due respect, lacks validity, as nothing beyond Section 28 can form a basis for allowing a defaulting plaintiff to a concession of late payment. Such a plaintiff has to incur rejection of his plaint.
Order VII Rule 11 (b) & (c) is subject to Section 10 of Court Fee Act, which enjoins upon a plaintiff to determine correct valuation of suit and pay Court-fee thereon accordingly.
The said rule, in line with Section 10(ii), requires a judge to attend to the matter of valuation of suit and payment of Court-fee. It is, however, regretfully noted that Judges do not attend to it, in the very first instance, as contemplated under Order VII Rule 11 (b) & (c). Even when a defendant points out undervaluation of the suit or deficient Court-fee, the Judges, instead of requiring plaintiff to correct the valuation and pay Court-fee thereon under Rule 11 (b) or pay deficient Court-fee under Rule (c), frame a negative issue as to, "whether plaint is incorrectly assessed or the plaint is deficiently stamped", as the case may be. The placing burden of proof on the defendant and trying the said issue, along with issues on merits, encourages dishonest plaintiffs to deliberately undervalue the suit and avoid payment of Court-fee, and take the chance of having not to pay Court-fee at all, on failure of defendant to prove the negative issue.
Even if issue is proved, the plaintiff, thinking that he has a fair chance of success in the suit on merits, will comply with the order of payment of Court-fee. If, conversely, he thinks that he has no case on merits, then he will not comply with the order and will let the plaint to be rejected, having fully enjoyed the trial of case, free of cost.
Framing of an issue on the point of undervaluation of the suit or of deficient Court-fee, is not warranted by law. Such matters have to be resolved within the confines of Section 10(ii) of Court Fee Act and Order VII Rule 11 (b) or (c), as the case may be, and it is plaintiff who has to affirmatively prove the point at controversy falling under Rule 11 (b) & (c). It is only when there is properly stamped plaint that defendant should be called upon to answer the claim of plaintiff on merits.
In PLD 1972 Karachi 103, it is held
"Plaint or memo. of appeal cannot be treated as properly presented so long as proper Court-fee is not paid."
The provision in Section 10(ii) of Court Fee Act to stay the proceedings in the suit till the payment of Court-fee is required to be followed, in order to deter the plaintiff from evading payment of Court-fee.
It is not wholly correct to stay that matter of payment of Court-fee is exclusively in between the state and plaintiff and defendant has no say in it.
Defendant is within his right to see to it that there is a properly stamped plaint before the Court, which he is to answer. If the plaintiff, having contumaciously and mala fidely, undervalued the suit, with the intention of avoiding payment of Court-fee and later, in the end of day, when defendant burdened to prove the valuation so fixed to be low than what ought to be, has proved the suit to be undervalued, after leading evidence in protracted agonizing trial, seeks the exercise of discretion in his favour to make up the deficiency, the defendant has a right to ask the Court not to exercise discretion in favour of the plaintiff.
In PLD 1979 SC 821 it has been held
"Plaintiff guilty of contumacy, positive mala fides or lack of bonafide, is not entitled for any indulgence."
To sum up the discourse, as per mandate of Section 10(ii) of Court Fee Act, hearing of a deficiently stamped plaint is to be stayed till the deficiency in Court-fee is made good within a given time by Court.
Regards Ch Yasir Ilyas Gujjar Advocate
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