1997 PLP 1373 (SCMR)

SAIDUZZAMAN SIDDIQUI,J.‑‑‑The petitioners are seeking leave to appeal against the judgment of a learned Division Bench of Lahore High Court dated 14‑6‑1994 whereby Regular First Appeal No. 168 of 1984. filed by the petitioners' predecessor was dismissed by High Court as time‑barred. The relevant facts of the case are that the respondent instituted a suit for recovery of Rs.3,72,000 by way of damages against the petitioners. The suit was decreed for Rs.50,000 only and the respondent was directed to deposit court‑fee Rs.3,750 after receipt of decretal amount. The petitioners who were defendants in the above suit filed a revision application before the High Court on 1‑4‑1984 on which the Office raised objection. The file was collected by the petitioners from the office of the High Court on 13‑10‑1984 and it was returned after compliance on the same day. The office again raised an objection on 18‑10‑1984 which was complied with by the petitioners on 20‑10‑1984. The revision application was finally allowed to be converted into Regular First Appeal by a learned Judge in Chambers of Lahore High Court by order dated 22‑10‑1984 and thereafter it was fixed before the Division Bench for hearing. At the hearing of the appeal, the respondent raised an objection as to the maintainability of the above Regular First Appeal on the ground of limitation. It was contended before the Division Bench that the case was returned to the petitioners on 9‑4‑1988 with direction to affix court‑fee in the sum of Rs.3,

750. The objection was complied on 13‑10‑1984 and deficiency in the court‑fee was made up on 18‑10‑1984. This objection was upheld by the learned Division Bench of High Court and the appeal has been dismissed as time‑barred against which the petitioners are now seeking leave to appeal. The learned counsel for the petitioners contended that the petitioners had filed the revision petition before the High Court on 1‑4‑1984 against the judgment of trial Court and if this date is taken as the date of presentation of Regular First Appeal, the same was admittedly within time. It is also contended by the learned counsel for the petitioners that no objection was raised by the Office of High Court at the time the petitioners paid the court‑fee of Rs.3,750 that the appeal had become time‑barred on account of late payment of court‑fee. It is urged that the Court had jurisdiction under section 149, C.P.C to extend the time to make up the deficiency in the amount of court‑fee which should have been exercised in favour of the petitioners in the circumstances of the case and once the jurisdiction was exercised by the Court and time was extended for payment of deficient court‑fee under section 149, C.P.C, the appeal shall be deemed to have been presented on the date of initial filing in Court. It is, accordingly, contended that the dismissal of the appeal as time‑barred was based on in is appreciation of law by the learned Judges of the Division Bench. The contention raised by the petitioners requires further examination and we, accordingly, grant leave to appeal to consider the same. The appeal is barred by 2 days. the petitioners have offered explanation. The delay in filing appeal before this Court is condoned subject to all just exceptions. A.A./M‑3318/S Leave granted.