2002 PLP 819 (MLD)

‑‑‑‑ Lis should not be knocked out on technical grounds, but endeavours of Courts should be to decide matters, involving valuable rights of parties, on merits and parties to litigation should not be non‑suited on mere technical grounds. Muhammad Nazir Janjua for Appellants. Mian Jamil Akhtar and Rana Tahir Mehmood for Respondents. Date of hearing: 4th October, 2001. Appellants/defendants Nos.2 and 3 have instituted the present appeal challenging the judgment and decree, dated 10‑10‑1995, whereby the learned Additional District Judge, Shorkot, dismissed the appeal, filed by the appellants, thereby maintainable the judgment and decree, dated 25‑10‑1992, through which the learned Civil Judge decreed the suit, filed by the respondent No.2.

2. Brief facts necessary for the disposal of the present appeal are that respondent No.2, filed a suit for specific performance of an agreement to sell dated 5‑9‑1988, for a consideration of Rs.2 lacs. Regarding suit land (elaborately described in the plaint) against the appellants and respondent No.1. In the plaint be also prayed for the cancellation of Mutations Nos. 1683, dated 24‑9‑1988 and 1716, dated 25‑1‑1989, on .the ground that the same are illegal, void and ineffective. Respondent No.1 conceded the suit, whereas defendants Nos.2 and 3/appellants resisted the suit, filed by the' written statement, thereby taking legal arid factual objections, culminating to the framing of the issues and the learned Civil Judge, after recording, the evidence of the parties proceeded to decree the suit filed by respondent No.2 vide judgment and decree dated 25‑10‑1992 which was assailed by the appellants before the higher forum, but the learned Additional District Judge dismissed the appeal on account of non‑affixation of court‑fee of Rs.15,000 on the memorandum of appeal, filed by the appellants, vide judgment and decree dated 10‑10‑1995, hence the present second appeal.

3. Learned counsel for the appellant` has contended that the learned Lower Appellate Court without affording any opportunity to the appellants for making up the deficiency of court‑free proceeded to dismiss the appeal; despite the fact that an application seeking extension of time for paying the court‑fee was filed by the appellants, thus, the appellants have been non‑suited on this technical ground. On the other hand the learned counsel for respondent No.2 has contended that the appellants did not file any application seeking extension in time for the affixation of court‑fee and that the conduct of the appellants was mala fide and contumacious, therefore, the judgment rendered by the learned Lower Appellate Court cannot be interfered with.

4. Admittedly, the memorandum of appeal was filed on 24‑11‑1992, without the affixation of the court‑fee of any amount. A Perusal of the impugned judgment itself manifest that the appellants filed an application seeking extension in time for affixation of the court‑fee of the requisite amount. Even after filing such an application, the learned Lower Appellate Court did not deem fit to grant any time to the appellants for the payment of the court‑fee. From the bare reading of the impugned judgment, it is evident that the appellant were not granted any opportunity by the learned Lower Appellate Court to pay the court‑fee or to make up the deficiency. No doubt there was an application, but the same was dismissed by the learned Court, without assigning any reasons alongwith the appeal. The only basis on which the learned Additional District Judge proceeded to pass such a harsh order is that the appellants did not pay the court‑fee during the pendency of the appeal, which remained pending for two and a half years and that the application for extension was also filed belatedly. To say the least, this can hardly be any ground to non‑suit the appellants, who have filed the appeal and are prepared to pay the court‑fee for which an appropriate application was filed by them during the pendency of the appeal. I am of the considered view that if it was found that no court‑fee has been paid by the appellants on the memorandum of appeal, the learned Court was under a legal obligation to at least provide a single opportunity to the appellants calling upon them to pay the court‑fee and if even then the appellants failed to comply with the terms of the order, of course, the learned Appellate Court would have been justified in taking this stern action. The appellant had been non‑suited on mere technicalities and as such they have been condemned unheard in an appeal wherein valuable rights of the appellants are involved. This type of non‑suiting a litigant on technical grounds by invoking the penal provisions cannot be countenanced under any stretch of imagination. It is settled law that before dismissal of the lis on account of non‑payment of Court‑fee, the Court is under a legal obligation to provide an opportunity to such a person to pay the court fee. The impugned judgment is even violative of the provisions of Order VII, Rule 11, C.P.C., which provides that where the plaint is written upon a paper in sufficiently stamped and the plaintiff on being required by the Court to supply the requisite stamp paper within the time fixed by the Court fails to do so, in that case the Court is empowered to reject the plaint. The said provisions are equally applicable to the Appellate Courts.

5. It has time and again been held by the superior Courts of this country that the lis should not be knocked out on technical grounds but the endeavours of the Courts should be to decide the matters, involving valuable rights of the parties, on merits and parties to the litigation should not be non‑suited on mere technical grounds. From the bare perusal of the impugned order, it is evident that the same has been passed on hyper‑technical ground without providing any opportunity to the appellants to pay the requisite court‑fee. The appellants who are litigating the matter, obviously after, spending a considerable time and money have been non‑suited only on account of non‑payment of court‑fee of Rs.15,000.

6. Having, thus, examined, the impugned judgment I am of the firm view that the same has been passed in violation of law, same is not sustainable and definitely calls for interference by this Court. In view of the above reasons and discussion, the appeal is accepted and the impugned judgment and decree passed by the learned Additional District Judge is set aside: The result would be that the appeal filed by the appellants shall be deemed to be pending before the learned Lower Appellate Court, the appellants shall pay to requisite amount of court‑fee within a period of one month from the date of receipt of this order before the Lower Appellate Court and thereafter the appeal shall be decided on merits by the learner District Judge himself within a further period of one month after hearing both the parties and, of course, in accordance with law. Parties are left to bear their own costs. H.B.T./S‑385/L Appeal accepted.