PAYMENT OF COURT FEE IS CONDITION
PRECEDENT TO HEARING OF A CASE
By
CHAUDHARY MUHAMMAD BASHIR,
Advocate,
(Ex-Member Punjab Bar Council)
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:
Section
6: Fees on documents filed, etc., in Mufassal Courts
or in public offices:
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.