P L D 1998 Lahore 342 (PLP)

This Constitutional petition has been filed to challenge order dated 2-10-1997 whereby the revision petition filed by the present petitioner was dismissed by the learned Additional District Judge, respondent No.2 for nonpayment of the process-fee.

2. Briefly stated the facts of the case are that Mst. Zaibun-Nisa respondent No. l had filed a suit for possession and redemption of mortgage in the Court of Civil Judge, Bahawalpur. Another suit was filed by Muhammad Akbar husband of respondent No. l in the same Court. The petitioner filed an application before the trial Court for consolidation of the two suits on 29-11-1995 which was rejected by the Court vide order dated 25-3-1996. The petitioner challenged it through a revision petition which was admitted for regular hearing by the learned Additional District Judge on 5-5-1996 and notice was ordered to be issued to the respondents for 30-5-1996. It is claimed that the petitioner had deposited the process-fee for service of the respondents at the time of institution of the revision petition on 2-5-1996. On 30-5-1996, the Presiding Officer was on leave and the Reader of the Court fixed 20-6-1996 as the next date for appearance of the respondents. On the said date, the petition was dismissed for non-payment of the process-fee.

3. Respondent No.l was duly served for today's date of hearing but she has not cared to appear and is ordered to be proceeded against ex parte. The petitioner's learned counsel contends that the petitioner had given the amount of process-fee to the clerk of her counsel who had deposited the same in the office and submitted his own affidavit before the learned Additional District Judge; that under the provisions of Order XLI, Rule 18 of the C.P.C. the Court had a discretion which ought to have been exercised in favour of the petitioner and that the revision petition should not have been dismissed merely for non-payment of a petty amount of rupees two for issuing process against the respondent No.

1. In support of her contentions, the learned counsel relies on Hedayatullah and others v. Ghulam Sarwar and others 1993 CLC 1524 and Muhammad Qasim and others v. Moujuddin and others 1995 SCMR 218.

4. The material on the record shows that the revision petition was instituted by the petitioner on 2-5-1996. On the said date, the Presiding Officer of the Court was on leave and the Reader of the Court passed the following order:- On 5-5-1996, the revision petition was admitted for regular hearing and notice was ordered to be issued to respondent No.l for 30-5-1996. No specific order was passed by the Court requiring the petitioner to pay the process fee. On 30-5-1996 , again the Presiding Officer was on leave and the case was adjounred for 20-6-1996 by the Reader of the Court with the following order:-- Obviously, the Reader was not competent to pass any order requiring the petitioner to pay process-fee within a certain period. This was exclusively the function of the Court. In case of absence of the Presiding Officer due to illness or otherwise, the ministerial officer of the Court can only fix the next date of hearing and hand over duly signed slips of paper to the parties specifying the other date fixed for proceeding with the suit or proceedings as laid down under the provisions of Order XVII, Rule 5 of the C.P.C. He cannot pass any other order particularly an order which may result in certain penal consequences. On the adjourned date so fixed by the ministerial officer, the Court is competent to conduct the same proceedings as scheduled on the date the Judge was absent or in his discretion adjourn the case. On 20-6-1996, the learned Additional District Judge dismissed the revision petition for non-payment of the process fee. This order was patently illegal because the "Court had never passed any order requiring the petitioner to pay the process-fee. It is true that a party at whose instance the process is issued has to pay the necessary expenses unless otherwise ordered by the Court. It has been laid down under Order XLVIII, Rule 1 of the C.P.C.:- "(1) Every process issued under this Code shall be served that expense of the? party on whose behalf it. is issued, unless the Court otherwise directs. (2) The court-fee chargeable for such service shall be paid within a time to be fixed before the process is issued." Therefore, the Court has to pass a specific order requiring a party to pay the process fee within the fixed time. In the absence of such an order, no penal action can be taken against the defaulting party. In this connection, an analogy may be drawn from the provisions regarding payment of court-fee. It is primarily the duty of a party to pay proper court-fee on the plaint or a memorandum of appeal but before a plaint or memorandum of appeal can be rejected for non-payment of court-fee, the party has to be required by an express order to pay the specified amount of court-fee. If no such opportunity is provided to a party, the penal consequences cannot ensue. So far as a revision petition is concerned, it is not strictly governed by the provisions of Order XLI of the C.P.C. which is applicable to appeals from original decrees, except rule

38. The said rule has been made applicable to revisions by virtue of Order LII which reads as under:- "Applicability of Rule 38 of Order 41 to proceedings under section

115. Rule 38 of Order 41 shall apply, so far as may be, to proceedings under section 115 of the Code. " Rule 38 is reproduced below for ready reference:- "38.(1). An address for service filed under Order 7, rule 19, Order 8, rule 11 or subsequently altered under Order 7, rule 24 of Order 8, rule 12 shall hold good during all appellate proceedings arising out of the original suit or petition. (2) Every memorandum of appeal shall state the addresses for service given by the opposite parties in the Court below and notices and processes shall issue from the Appellate Court to such addresses. (3) Rules 21 and 22, of Order 7 shall apply so far as may be, to appellate? proceedings." Rules 21 and 22 of Order 7 relate to consequences of failure to file address and the procedure when party not found at the place of the address given for his service. Obviously, the other rules under Order XLI have not been made applicable to revision petitions. Therefore, a revision petition cannot be dismissed under the provisions of Order XLI, Rule 18 of the C.P.C. for nonpayment of the process-fee. Even in the case of an appeal, the penal consequences cannot ensue unless the Court has passed an express order specifying the amount to defray expenses for service of notice and the period within which it has to be paid. In the present case, this was never done under any order of the Court. Hence, the order dismissing the revision simply for the petitioner's failure to pay the process-fee was wholly without lawful authority and of no legal effect.

5. I may observe here that ordinarily litigants instituting a suit, appeal or a revision petition are keen to serve the opposite party expeditiously and readily pay the process-fee which is a petty amount as compared to that of court-fee and the fees paid to their counsel. If it is found by a Court that the process-fee, despite a clear order by the Court, was not paid, even then the Court should liberally allow an opportunity to a defaulting party to pay the process-fee. The Court should not act with undue haste or harshness even in the case of an appeal E to which the provisions of Order XLI, Rule 18, C.P.C. are applicable. The Court must exercise its discretion liberally and allow opportunity to the defaulting party to pay the amount of the process-fee unless the conduct of a party is found to be tainted with unfairness, stubbornness or contumacy in complying with the Court orders. ?

6. The petitioner's learned counsel has placed reliance on the judgment in the case of Hadayatullah and others in which it was held as under:- "With the remission of court-fee in the suits up to the valuation of Rs.25,000, the process-fee of one or two rupees and its non-deposit by the litigants has become almost immaterial and adverse orders should not be passed on that account on the basis of certain provisions of the C.P.C. of penal nature. However, if the learned Additional District Judge thought that it was very necessary for the petitioners to have deposited the process-fee, he could, instead of throwing out his appeal arising out of a suit involving the property of sufficient amount, direct his office to issue process to the opposite party and recover the process-fee from the petitioner or his counsel on the next date of hearing." . With due deference, I find myself unable to subscribe to the above-quoted view because in my opinion it amounts to laying down a new rule of procedure. It is the function of the Legislature to amend the provisions of the C.P.C. or that of High Court to frame a new rule under section 122 of the Code empowering a Court to direct its office to issue process to the opposite party and then recover the amount of process-fee from the defaulting party or his counsel on the next date of hearing. The function of the Court is limited to interpretation and application of the law as it exists.

7. For the foregoing discussion, the petition is accepted and the impugned orders dated 20-6-1996 and 2-10-1997 are declared to be without lawful authority and of no legal effect. The petitioner's revision petition will be deemed to be pending and shall be decided by the Court in accordance with the law and the observations made in this order. A.A./K-51/L? Petition accepted