1989 PLP 231 (MLD)

Siddique Khan v. Abdus Shakoor‑PLD 1984 SC 289 ref. Sh. Naveed Shahryar for Appellants. M. Abdus Saleem for Respondent. . Date of hearing: 21st January, 1989. A suit filed by Sultan Ahmad respondent for possession of the land in dispute through exercise of right of pre‑emotion was decreed by the trial Court on 3‑7‑1975. Being dissatisfied with this decree the appellants vendees went in appeal. It is to be noticed that during the pendency of the suit, the Punjab Finance Act, 1973 was enforced whereby section 7 of the Court Fees Act was amended and in a suit for pre‑emotion where the subject matter was land yielding net profits, the court‑fee had, to be paid on fifteen times of the net profits accruing from such land, during the year next before the date of presenting plaint. 'Thus the appellants had to pay court‑fees on the memorandum of appeal on the basis of the amended law. Both the sides agreed that court‑fee of Rs. 1,650 was payable. However, the appellants filed the first appeal by payment of court‑fee of Rs. 337.50 only. Notwithstanding the deficiency in the court‑fees the appeal was admitted to regular hearing on 14‑1‑1976. It is discernible from the appellate Court's rile that the proceedings on the‑appeal continued till 14‑3‑1978 when the respondent‑pre‑emptor raised an objection that the memorandum of appeal was not properly stamped. This objection was upheld by the learned Additional District Judge and the appeal dismissed on 25‑5-1978. This dismissal is under challenge in this R.S.A.

2. I have heard the learned counsel for the parties and examined the record of the Courts Below. The grievance voiced by the appellants is, that immediately after respondent's objection that the memo of appeal was riot property stamped, they moved an application under section 149 C.P.C. for enlargement of time to pay the requisite court‑fee but the learned Additional District Judge without determining the court‑fee payable by them and giving them an opportunity to make good the deficiency, proceeded to dismiss the appeal. In the submission of the appellants' learned counsel, this dismissal is violative of the law laid down by the Supreme Court in Siddique Khan v. Abdus Shakoor PLD 1984 S.C. 289.

3. On behalf of the contesting respondent it is not disputed that the ratio of this judgment covers the proposition canvassed by the learned counsel for the appellants. His learned counsel, however, submitted that the appellants were negligent in paying the proper court‑fee and thus, were not entitled to any such indulgence or opportunity as claimed by them now.

4. There should be no doubt that under section 149 C.P.C., grant of or refusal to extend the time to make good the deficiency in the court‑fee, is within the discretion of the Court. But, the law governing such discretion is that a. party guilty of contumacy and committing a positive act of mala fides is not entitled to exercise of such discretion in his favour. The file of the case, however, is not demonstrative of any such contumacious or mala fide conduct of the appellants. As their case is covered by the enunciation by law made by the Supreme Court in the precedent aforesaid, the decision of the learned first appellate Court cannot be upheld.

5. This appeal is, therefore, accepted. The judgment and decree under appeal are set aside. The case is sent back to the learned first appellate Court with the discretion to give the appellants an opportunity to make good the deficiency in the court‑fee and after the needful is done to proceed with the decision of the appeal on merits. The parties arc left to bear their own costs. M.Y.H./L‑52/L. Case remanded.