1994 PLP 79 (CLC)

Dr. M. Mohy‑ud‑Din Qazi for Appellant. Nemo for Respondent. Date of hearing: 18th October, 1993 MUNIR A. SHAIKH, J: ‑‑This appeal is directed against judgment and decree dated 9‑1‑1991 through which the trial Court rejected the plaint of the suit filed by the appellant for non‑compliance of the order passed by the Court to make up the deficiency in the court‑fee.

2. The case of the appellant was that the appellant deposited the requisite amount to purchase the court‑fee in the Government Treasury and the court fee stamp was in fact issued to the appellant which was lost and the appellant produced photostat copy of the same but in spite of that the trial Court insisted that a fresh court‑fee stamp should have been purchased and placed on the record in compliance with the orders passed by the Court.

3. Learned counsel for the appellant submitted that a request was made to the trial Court to frame issue on this point but no opportunity was given to the appellant to prove the said facts.

4. We have gone through the judgment of the trial Court. The trial Court has proceeded on the assumption, that even if the requisite amount for purchasing the court‑fee stamp had been deposited in the Government Treasury and court‑fee stamp had been in fact been issued to him and lost, the appellant was bound to purchase fresh court‑fee stamp and place the same on the record. In our view the trial Court has not decided the question regarding court‑fee correctly and in accordance with law.

4. If the appellant had deposited the requisite amount for purchasing the court‑fee in the Government Treasury 'and court‑fee stamp was in fact delivered to him, which is proved to have been lost he could not be burdened with further liability to purchase fresh court‑fee stamp unless it was established by the respondents that the said court‑fee stamp had been utilized for any other purpose or case.

5. The judgment and decree passed by the trial Court is not sustainable. This appeal is accepted. The impugned judgment and decree dated 9‑1‑1991 is set aside and the case is remanded to the trial Court to decide the question of court‑fee afresh after framing issue and recording evidence. If the appellant proves deposit of requisite amount of court‑fee in the Government Treasury and that the same was not subsequently withdrawn, but the court‑fee stamp was issued and lost, the plaint shall be deemed to be duly stamped unless the respondents prove that it was utilized for some other case. If the appellant fails to prove the aforementioned facts, only then it shall be called upon to make up the deficiency in the court‑fee within the time to be fixed by the Court. There will be no order as to costs. . M.BA./Z‑91/L???????????????????????????????????????????????????????????????????????? ??????????? Appeal accepted.