1986 PLP 1227 (CLC)

"This Court has also held though in a different context that the institution of the suit is by presentation of the plaint when it is accepted by the presiding officer "any defects notwithstanding". See Muhammad Siddique v . Zawar Hussain Abidi. To the similar effect namely that valid for limitation is not affected by deficient court‑fee, are Gavaranga Sahu v. Botokrishna Pat No.(2) and Hari Ram v. Akbar Hussain wherein it was held that the plaint is a plaint even if it is not properly stamped. See also Ramgopal Chunilal v. Ramsarup Baldevdas and others, George Benjamin Hampson v . Jeewanmall Bros. and Stuart Skineer alias Nawab Mirza v. William Orde and others. It is also appropriate here to state the well‑accepted rule about Courts' attitude toward the collection of court‑fee as agent of State. It is to the effect that the Court Fee Act like the other fiscal statutes is to be construed strictly and in favour of the subject; and that it was passed with the object of securing, revenue for the benefit of the State and not to arm a litigant with a weapon of technicality to harass his opponent."

14. It may be observed that dispute regarding payment of court‑fee particularly in forma pauperis a matter between the Government and its Paupris subject though a defendant too under rule 6 of Order XXXIIII is one of the necessary party to be heard but if for some reasons, he is not called at the initial stage but in that case while taking defence of the suit if still defendant feels actually aggrieved against the order may avail the opportunity to move for dispaupering the suit under rule 9 of the Order. Failing to move such objection at the proper stage before the trial Court he cannot be allowed to challenge it for the first time before the appellate Court in appeal alongwith the judgment and decree. It may be pertinent to observe further that while challenging a decree in fact, it is not open to the appellate Court to entertain such plea that the plaint had not been legally allowed to sue as pauperis as the matter at such initial stage is one affecting the institution of the suit itself and not affecting any decision of the trial Court, that is why it has not been made appealable. To have not only proper appreciation but better understanding of the proposition it would be certainly useful to reproduce the relevant provisions of the Code dealing with the subject, which are sections: Section 96.‑‑ "

96. Appeal from original decree.‑‑(1) Save where otherwise expressly provided in the body of .this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court. (2) An appeal may lie from an original decree passed ex parte. (3) No appeal shall lie from a decree passed by the Court with consent of parties. . Section 104.‑ -- "

104. Orders from which appeal lies.‑‑(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders. (1)********************************** (2) (f) an order under section 35‑A; (ff) an order under section 47;) (g) an order under section 95; (h) an order under any of the provision of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree; (i) any order made under rules from which an appeal is expressly allowed by rules: (3)(Provided that no appeal shall lie against any order specified in clause (f) save on the ground that. no order, or an order for the payment of a less amount, ought to have been made). (2) No appeal shall lie from any order passed in appeal under this section." "Order XLIII, rule 1.‑‑ "43.1. Appeals from orders.‑‑An appeal shall lie from the following orders under the provisions of section 104, namely:‑ (a) an order under rule 10 of Order VII returning a plaint to be presented to the proper Court; (b) an order under rule 10 of Order VIII pronouncing judgment against a party; (c) an order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit; (d) an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte; (e) an order under rule 4 of Order X pronouncing judgment against a party; (f) an order under rule 21 of Order XI; (g) an order under rule 10 of Order XVI for the attachment of property; (h) an order under rule 20 of Order XVI pronouncing judgment against a party; (i) an order under rule 34 of Order XXI on an objection to the draft of a document or of a endorsement; (ii) an order under rule 62 or rule 103 of Order XXI relating to the right title or interest of the claimant or objector in attached property;) (j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale; (k) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit; (1) an order under rule 10 of Order XXII giving or refusing to give leave; (m) an order under rule 3 of Order XXIII recording or refusing to record an agreement, compromise or satisfaction; (n) an order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit; (o) an order 2 under rule 2, rule 4 or rule of Order XXXIV refusing to extend the time for the payment of mortgage‑money; (p) orders in inter-pleader‑suits under rule 3, rule 4 or rule 6 of Order XXXV; (q) an order under rule 2, rule 3 or rule 6 of Order XXXVIII; (r) an order under rule 1, rule 2, rule 4 or rule 10 of Order XXXIX; (s) an order under rule 1 or rule 4 of Order XL; (t) an order of refusal under rule 19 of Order XLI to re‑admit, or under rule 21 of Order XLI to re‑hear, an appeal; (u) an order under rule 23 of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court; (v) an order made by any Court other than a High Court refusing the grant of a certificate under rule 6 of Order XLV; (w) an order under rule 4 of Order XLVII granting an application for review. "

15. Manifestly the order not being a 'Decree' is not appealable under section 96 of the Code. It too have not been made appealable under section 104 or Order XLIII, rule 1 of the Code. In the event we have no hesitation to hold that an order allowing forma pauperis, application is not appealable order under the Code. The first appeal filed the appellant before Majlis‑e‑Shoora challenging the order of the Deputy Commissioner admitting the plaint, hence was misconceived and not tenable.

16. In support of his second contention Mr. Tahir Muhammad Khan, the learned counsel for the appellant vehemently urged that in written statement the appellant had questioned the genuineness of the agreement and seriously contested the suit. After framing of the issue by the learned Kazi it was for the respondent to have lead evidence to prove his claim and there was no stage for the Court to have examined the appellant whose such statement recorded at premature stage by the Court had no legal value to be binding on him, which as such be ruled out of consideration for all purposes including taking it as his admission in respect of the claim of the respondent. The learned counsel further contended that even otherwise decree based on his so‑called admission cannot be said to be a consent decree so as not to be appealable under the Code.

17. On the other hand Mr. Iftakhar Muhammad, the learned counsel for the respondent vehemently repudiating his contention submitted that on face of it, it was a consent decree on all four hence not appealable under section 100 of the Code.

18. Nowhere it has been the case of the appellant that he was coerced to give such statement but on the contrary it appears that he put himself voluntarily in the witness‑box and admitted the claim of the respondent whereon decree was passed. Evidently he could not be allowed to challenge his own fault for his own benefit. His conduct and acquiescence would operate as estoppel against him. Having himself, chosen a peculiar mode of his choice before the trial Court, the appellant cannot in either way challenge its proprietary in appeal. This view has already been taken by Division Bench of this Court in Civil Petition No. 232/1983 and Civil Petition No. 10/1984.

19. It may be further observed that a decree can be passed in either ways by a Court: (i) by deciding the dispute on merits. (ii) with consent of the parties. (iii) on admission of the parties. There is no fourth mode of doing it. In no way it could be said that this decree has been passed on merits as no evidence was led before the trial Court. On admission of the appellant the Court passed the decree which is evident from the order and the decree of the Court itself. It may be pertinent to observe that a consent decree is always passed with agreement of the parties. Admission of the claim by itself cannot be deemed to be a consent decree, which is evident from the working of Order XII, rule 6, C.P.C. itself; which .reads as under:‑ "

6. Judgment on admissions.‑‑Any party may, at any stage of a suit, where admissions of fact have been made, either on the pleadings, or otherwise, apply to the Court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties: and the Court may upon such application make such order, or give such judgment, as the Court may think just." On such view of the facts, the decree undisputedly is not a consent decree, so as be barred under subsection (3) of section 96 of the Code.

20. To support his last contention Mr. Tahir Muhammad Khan at the first instance drew our attention to the wording of section 100 of the Code whereby tried to convince us to make out a case that every decree or order including appeal dismissed for default passed by the first appellate Court is appealable under this section before the second appellate Court. In addition thereto the counsel reiterated that though the first appellate Court dismissed the appeal in default yet the decree of the trial Court merged in its decree particularly when the decree of the first appellate Court indicates so.

21. In reply the learned counsel for the respondent submitted that having the appeal been dismissed in default, the remedy available to the appellant before the appellate Court was to file application for restoration of the appeal under rule 19 of Order XLI but not appeal under section 100 of the Code.

22. To dilate upon the contention of the learned counsel it would be pertinent to examine rules 17 and 19 of Order XLI, which for sake of convenience are reproduced as under:‑‑ 17.(1)Dismissal of appeal for appellant's default.‑‑Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. (2) Hearing appeal ex parte‑‑Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte." "

19. Re‑admission of appeal dismissed for default.‑‑Where an appeal is dismissed under rule 11, sub rule (2) or rule 17 or rule 18, the appellant may apply to the appellate Court for the re‑admission of , the appeal; and where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re‑admit the appeal on such terms as to costs or otherwise as it thinks fit." By using word 'may in rule 17 discretion has been given to the Court to dismiss the appeal when appellant on the date of hearing of the appeal remains absent or its discretion, the Court may adjourn the appeal for some other date. Nowhere from the wording of the rule it indicates that appeal can be decided on merits. Even if in such case the Court dismisses the appeal on merits, its disposal shall be treated to be a dismissal in default but not on merits.

23. In any case, when appeal is dismissed in default the order cannot be deemed to be a decree. The decree of the trial Court will not merge in the order passed by the appellate Court. The original decree shall remain intact in its own field.

24. Additionally to have proper meaning of the word 'Decree' we shall fall on its definition given in section 2(2) of the Code. It would be more useful to reproduce it here. It reads as under:‑

"2(2)"Decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of plaint (the determination of any question within section 144, and an order under rules 60,98,99,101 or 103 of Order XXI) but shall not include:‑ (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default." It may be pertinent to observe that an order dismissing appeal for default has been excluded from definition of word 'decree' nor it falls ; in any other part of its definition.

25. Our views get support from the cases reported in: "(i) A. I R 1962 Pu. 82 which reads as under:‑ . Under the provision of Order XLI, rule 17, a Judge is not entitled to dismiss an appeal on merits if the appellant is not present on the date of the hearing. An appeal can be dismissed on merits only under rule 30 of Order XLI, after hearing both the parties. Under the rule the appellate Court has a discretion to dismiss the appeal in default or to adjourn it to some future date. But it is not authorised to dismiss the same on merits in the absence of the appellant. A I R 1921 Pat. 325 and A I R 1938 All. 548, Dissented from A I R 1923 Mad. 13 and A I R 1925 Rang. 96 and A I R 1929 Cal. 475 and A I R 1929 Rang. 11(2) and A I R 1953 Assam 191 and ILR (1953) 3 Raj. 578 Ref. (Para. 10). Where instead of dismissing the appeal for default the appellate Court dismisses it on merits, the order dismissing the appeal on merits in the absence of the appellant would be treated as an order of dismissal for default; such an order cannot come within the definition of the word 'decree' as given in S. 2(2). Therefore, no appeal lies from such an order and the only remedy of the aggrieved party is to move an application under

0. XLI, r. 19, A I R 1924 All. 144, relied on:" (ii) P L D 1976 Kar. 268 which reads as under:‑

7. There is yet another aspect of the matter that is that, the language of Order XLI, rule 17, C.P.C. which is a specific provision dealing with the procedure in case of non‑appearance of the appellant, empowers the Court to dismiss the appeal. On the other hand, if the contrary view, as mentioned above is accepted and it is held that the Court would be competent to consider the merits of the appeal, it would follow that in such a situation the Court would further be competent to decide the appeal, despite the absence of the appellant in his favour. The consequence could be that the appellate Court may accept the appeal. But the plain language of the rule does not make a provision for such a judgment, the only power being to dismiss the appeal.

8. For all these reasons I am very clearly of the opinion that the absence of the appellant at the time of hearing does not empower the appellate Court under rule 17, Order XLI, C.P.C. to dismiss the appeal on merits." (iii) P L D 1976 Kar. 268 which reads as under:‑

O. XLI, r. 17 read with rr. 11,19,21 & 30.‑‑Appeal‑Default of appearance. Dismissal on merits. Absence of appellant at time of hearing of appeal. Does not empower appellate Court to dismiss appeal on merits."

26. Obviously the order not being a decree is not appealable either under section 94 or Order XLIII, rule 1 or section 100 of the Code; the only remedy against such order is to approach the appellate Court for its restoration.

27. For the foregoing reasons we see no merits in the appeal which as such stands dismissed but in peculiar circumstances of the case the appellant shall bear the costs of the proceedings throughout. A . A . Appeal dismissed.