1986 PLP 2044 (MLD)

‑‑‑S.115‑‑Revisional jurisdiction, exercise of‑‑Failure of Court dealing with case to be conscious of .all its vested powers, held, would render order passed by such Court liable to be set aside‑‑Appellate Court below showing disregard for law laid down by superior Courts would' betray ignorance about provisions of relevant law‑‑Order passed by such Appellate Court below was set aside by High Court in exercise of revisional jurisdiction in circumstances. Saeed Ahmad v. Messrs Indo Enamel Works Ltd. Lahore P L D 1954 Lah. 490 and Dhunda v. The Punjab Province (Now Province of West Pakistan) P L D 1960 Lah. 786 ref. Agha Taj Muhammad for Petitioner. Sh. Abdul Jabbar for Respondents. Date of hearing: 12th February, 1986. In May, 1964, petitioner Haider, alongwith one Jahana, filed a suit for declaration and permanent injunction, as a consequential relief, with regard to 166 Kanals 15 Marlas land situated in village Jaiya, Tehsil Phalia, District Gujrat so as to claim title therein upon a decree thereabout passed on 14‑1‑1963 being set aside on the ground of fraud and misrepresentation: Valuation of suit for purposes of court‑tee was put at Rs.5 only under section 7(iv)(c) of the Court Fees Act, as it then existed, and the plaint was stamped with a court‑fee worth Annas 6 only. Suit was contested by the defendants who did not raise any objection with regard either to the valuation of the suit or the court‑fee paid thereon and the suit having been ultimately dismissed by the Civil Judge, Mandi Bahaud Din, an appeal thereagainst was filed by Haider alone on 5‑6‑1976 in the District Court at Gujrat wherein he stated the valuation of his appeal as Rs.200 for purposes both of jurisdiction and court‑fee and stamped it with a court‑fee of the value of Rs.15 by also filing therein an application under section 149 of the C.P.C. containing the explanation that the appeal is exempt from the liability of payment of court‑fee on account of a recent notification and also expressing his readiness to pay such further court‑fee as may be determined by the Court to be payable. This appeal came up for hearing before Mr. Zulfiqar Ali Khan, Additional District Judge, Gujrat and his attention was invited to the judgment of the Supreme Court in Shahna Khan's case, reported as P L D 1984 S C 157, and he considered it fit to disregard it with the mere observation, "for obvious reason, this case does not hold good, to the matter under discussion in appeal". Again, the case of Sidaique Khan, reported as P L D 1984 SC 289, was brought to his notice and again disregarded by merely remarking. On the other hand, we refer to some other case‑law and cited Rashid Ahmad v. Haq Nawaz and others 1982 C L C 9 for the proposition that in a declaratory suit filed against a decree, for its being set aside on the ground of its being void, court‑fee was payable under Article 1 of Schedule I of the Court Fees Act in accordance with the value of the decree and without actually determining such a value, proceeded to conclude that since in the appeal before hire the plaint had not been valued according to the value of the relevant decree,, therefore, the memorandum of appeal was also insufficiently stamped. He even held the view that deficiency in payment of court‑fee could not be made good after the expiry of limitation and thought that he had no alternative than dismissing the appeal for want of payment of proper court‑fee and proceeded to dismiss the appeal as such. Plaintiff has now come up to this Court on revision.

2. Learned counsel has laid emphasis on the impudent conduct of the Additional District Judge in his brazenly disregarding the law declared by the Supreme Court in the judgments cited before him. Precise argument of the learned counsel is that in thus dismissing the appeal of the petitioner he has proceeded in complete oblivision even of the provisions of section 149 of the C . P. C . and has neither attended to the prayer made in the petitioner s application, dated 10‑12‑1985 nor has he perused the aforesaid judgment of Siddique Khan's case wherein it is provided not only that the proceedings do not become liable to be rejected outright on account of deficiency in court‑fee which, except in case of gross contumacy and neglect, are open to be got validated by providing at least one opportunity for payment of deficient court‑‑fee but also that the Court is under a duty to specify the exact deficiency of court‑fee and still he has not specified the assumed deficiency in court‑fee on the appeal of the petitioner.

3. Learned counsel appearing for respondents, when called upon for address, has candidly expressed his inability to defend the judgment passed in the appeal below.

4. There is no doubt that the appeal below has received perfunctory treatment on account of wanton conduct of the concerned Judge who has not merely shown great disrespect for the law laid down by the Supreme Court in the above‑cited judgments noticed by him, which he presumably did not care to even peruse, but has also betrayed ignorance about the provisions of section 149 of the C. P. C . whereby discretion stands conferred on the Courts to permit payment of deficient court‑fee and upon its being so paid within the time to be fixed for this purpose the proceedings become retrospectively validated from the date of their institution. Judgment rendered in the appeal below does not show; consciousness in the Judge concerned of his own power, vested in him as above and he has also omitted to attend to the specific prayer made by the petitioner in his abovementioned application. Failure of a Judge` dealing with a cause to be conscious of all his powers has been held to render his order liable to be set aside and reference on the point may be made to the Full Bench judgment of this Court reported as Saeed Ahmad v. Messrs Indo Enamel Works Ltd., Lahore P L D 1954 Lah.490. To the same effect is also Daunda v. The Punjab Province (Now Province of West Pakistan) P L D 1960 Lah. 786 wherein it has been held:‑

It is the right of a party that the Judge who exercises powers in his case should be conscious of the extent of those powers. If he is not conscious of all the powers that he has, then that is tantamount to a misconception of his powers and his order is liable to be set aside."

5. Upshot of the foregoing is that the Civil Revision is accepted and the judgment, dated 11‑12‑1984, dismissing the appeal of the petitioner, is set aside and the same is remitted to the learned District Judge, Gujrat for his appeal being heard and decided afresh, in accordance with law. He may retain the appeal either on his own file or transfer it to an Additional District Judge other than Mr. Zulfiqar Ali Khan. Parties have been directed to put in appearance before the learned District Judge, Gujrat on 29‑6‑1986. No costs. H . B . T . Revision accepted.