1994 PLP 111 (CLC)

Siddiq Khan v. Abdul Shakur Khan PLD 1984 SC 289 and Muhammad Iqha'l v. Abdul Hamid 1991 SCMR 978 ref. Syed Zamir Hussain for Petitioners. Nemo for Respondent No.l. Abdul Majid Khan for Respondent No.2. Date of hearing: 26th October, 1991. These civil revisions (C.Rs. 632, 633 and 634 of 1981) arise out of three suits of pre‑emption. These 'suits were decreed and the Vendees‑petitioners filed appeals. challenging the judgments and decrees dated 17‑7‑1975. On filing of the appeals the office report was that the court‑ fee paid was correctly paid. However, during the pendency of the appeals the respondent‑decree‑holders pointed out that the court‑fee paid had become deficient in view of the change in law. The petitioners submitted applications under section 149, C.P.C. for grant of time to make up the deficiency in court fee. These applications were rejected observing that due to non‑payment of court‑fee the appeals had become time‑barred and the same were rejected This led to the filing of these revision petitions. 2 It is admitted that no opportunity was granted to make 'up the deficiency in court‑fee. It cannot be denied that at the time the appeals were filed the office reported that the court‑fee had been correctly paid. If later on the court‑fee was found to be deficient, one opportunity should have been granted by the lower appellate. Court to make up the deficiency. In the circumstances of the case there was neither any contumacy nor any deliberate A act of not paying the court‑fee in time. Learned counsel for the respondents has not been able to meet the submissions, in view of the law laid down in Siddiq Khan v. Abdul Shakur Khan (PLD 1984 SC 289) and Muhammad Iqbal v. Abdul Hamid (1991 SCMR 978).

3. For the reasons given above the impugned judgments and decrees cannot be sustained. The same are set aside. The appeals are remanded to the learned District Judge, Gujrat, for disposal in accordance with law. Of course one opportunity will be granted to the appellants/petitioners to make up the deficiency in court‑fee and then if the deficiency is made good the learned District Judge would proceed to dispose of these appeals on merits in accordance with law. The parties are directed to appear before the learned District Judge on 24th November, 1991. The office shall transmit the record of the lower Court to the District Judge immediately. H.B.T./R‑104/L Order accordingly.