2010 PLP 48 (SCMR)

JAVED IQBAL, J.

This petition for leave to appeal is directed against order, dated 3-9-2007 passed by the learned Single Judge of the Lahore High Court, Multan Bench, Multan whereby civil revision preferred on behalf of petitioners has been dismissed and the judgment/decree dated 24-7-2007 passed by learned Additional District Judge, Karor, District Layyah has been kept intact.

2. The facts of the case have been narrated in extenso hence reproduction whereof would be of no use. Suffice it to say that the petitioners have been knocked out as deficiency of court-fee could not be made up.

3. Malik Muhammad Latif Khokhar, learned Advocate Supreme Court entered appearance on behalf of petitioners and urged with vehemence that the appeal as preferred before learned Additional District Judge, Karor on 26-4-2006 against judgment and decree dated 18-4-2006 passed by learned Civil Judge which was admitted for regular hearing by means of order, dated 26-4-2006 with the direction that the deficiency of court-fee be made on or before 4-5-2006 and needful could not be done till 30-5-2006 as the learned Presiding Officer was on leave. It is next contended that the learned Additional District Judge in his order, dated 26-4-20006 did not mention the exact amount of deficiency of court-fee which was required to be made up and such approach was not in accordance with the settled law which resulted in serious miscarriage of justice and the appeal could not have been dismissed merely on-the minor delay of couple of days that too with reasonable justification and sufficient cause. It is argued that the petitioners were ready to pay court-fee on 4-5-2006 and on 18-5-2006 but due to non-availability of learned Presiding Officer, the Reader (Ahlmad) of the Court directed to do the needful on next date of hearing. It is argued with firmness that the petitioners has a very good case on merits which is required to be decided on merits instead of sheer technicalities.

4. Mr. G.N. Gohar, learned Advocate Supreme Court entered appearance on behalf of respondent No.4 and strenuously controverted the view-point as canvassed at Bar by the learned Advocate Supreme Court' on behalf of petitioners with the submission that court-fee should have been paid in time which could not be done by the petitioners and thus, order impugned being well-based does not warrant any interference.

5. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of law and record of the case. We have minutely perused the order impugned. It transpired from scrutiny of record that on 4-5-2006 and on 18-5-2006 the learned Presiding Officer remained on leave and the order passed by the Reader (Ahlmad) is not indicative of the fact that the petitioners were not prepared to pay the court-fee. Had the learned Presiding Officer been present, in that case non-depositing of the court-fee would have adverse consequences. We are conscious of the fact that the Reader (Ahlmad) has absolutely no authority to extend the time in depositing the court-fee and no such extension was granted by the Reader (Ahlmad) but the relevant diary sheet depicts that "the court-fee is to be deposited on the next date of hearing" which cannot be equated to that of denial by the petitioners and therefore, it can be inferred safely that the target date i.e. 4-5-2006 was neither violated nor the order was flouted which could not be complied with due to the absence of the learned Presiding Officer on one hand and direction of the Reader (Ahlmad) on the other who mentioned that court-fee is to be deposited on the next date of hearing. No direction whatsoever was given by the Reader (Ahlmad) that the court-fee is to be deposited with Duty Judge. Had there been some Duty Judge the Reader (Ahlmad) himself would have not given the date and adjourned the case. It is general practice that usually-where the learned Presiding Officer is on short leave for a day or two, no "Duty Judge" is appointed and in criminal cases for the purposes of remand, additional duties are assigned to some other Judicial Officer. The court-fee was deposited on 30-5-2006 which in our view is a valid tendering the court-fee under the peculiar circumstances of the case, leave of the learned Presiding Officer and the orders of the Reader (Ahlmad). There is nothing on record to support that the "Duty Judge" was functioning on that day. The conduct of the petitioners cannot be declared contumacious nor he had acted with mala fide intention to deliberately flout the orders of the Court.

6. We have also surveyed the case-law enunciated by this Court and expressed in case titled Ahmad Yar Jang v. Noor Ahmed Khan 1994 SC 688 as under:

"This order of the Court left the calculation of the proper court-fee and the deficit court-fee to the plaintiff which could not be treated as the direction of the Court to pay a deficient amount of court-fee within a specified time. Therefore, non-compliance of such an order could not result in the rejection of plaint in view of the law laid down by this Court in the case of Sadiq Khan v. Abdur Shakur Khan PLD 1984 SC 289 and Muhammad Hanif v. Muhammad and others PLD 1990 SC

859. Now applying the said dictum of the Honourable Supreme Court of Pakistan to the case in hand, the learned trial Court had not ascertained the exact amount of court-fee on the first date on which the case was put up before it. On the other hand, it left the matter in the hands of the plaintiff either to get the net profits table, calculate the court-fee and pay the same or to pay it on the market value of the suit-land. Needless to state that there was an initial controversy regarding market value also which was to be determined by the Court. According to the Honourable Supreme Court of Pakistan, non-compliance of such an order could not result in rejection of plaint. Now it is a matter of record that ultimately the learned trial Court determined the exact amount of court-fee vide order, dated 1-10-1983 and after "determining .the deficiency directed the plaintiff to pay the same and there is no denial that this order was duly complied with. The plaint could not, therefore, have been rejected by the learned District Judge. Needless to state here that there is no question of the suit being barred by time as it was admittedly filed within the period of limitation. Mulazim Hussain v. Inayatullah 2005 MLD 797."

7. The said view also finds support by the dictum laid down by this Court in cases titled Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289, Shahna Khan v. Aulia Khan and others PLD 1984 SC 157, Mst. Parveen v. Ms. Jamsheda Begum and another PLD 1983 SC 227 we are not deviating from the well-entrenched legal position determined and discussed hereinabove but the circumstances of the case in hand are some what different as discussed in the above mentioned cases.

8. In view of what has been stated hereinabove this petition is converted into appeal and allowed. The order impugned is set aside and the appeal preferred on behalf of petitioners in the Court of learned Additional District Judge shall be considered as pending and decided in accordance with settled law and on merits after affording proper opportunity of hearing to all concerned. M.H./J-12/SC Case remanded.