P L D 2005 Lahore 89 (PLP)

Sardar Mahmood Iqbal Khakwani for Petitioner. Muhammad Tayyib Zamir Khan for Respondents. Date of hearing: 14th October, 2003. Through this writ petition, petitioner (Hasnain Raza) has prayed for declaring the order dated 2‑1‑2002, passed by Additional District Judge, Bahawalpur, by which the appeal filed by the petitioner was dismissed due to non‑payment of Court‑fee, to be illegal and without lawful authority.

2. The facts, in brief as are found from the record, are that Mst. Balqees Ghazal, respondent No.1, had filed a suit for the recovery of dower on 24‑4‑1999 in the shape of a house or in the alternative grant of decree for Rs.2,75,000 against the petitioner. The suit was contested by the defendant‑petitioner by filing written statement. Ultimately, the suit was decreed on 18‑5‑2000 by the learned Judge Family Court. Aggrieved from the judgment and decree of the learned Judge Family Court, the appeal was preferred by the defendant‑petitioner in the Court of learned District Judge, Bahawalpur which was entrusted to Additional District Judge, Bahawalpur for adjudication. During the pendency of the appeal on 8‑11‑2001 an application was moved by respondent No. 1 for the dismissal of the appeal due to non‑payment of Court‑fee, a copy of which application was delivered to the appellant‑petitioner and the appeal was fixed for reply to the application on 14‑11‑2001. On the aforesaid date, learned counsel for the appellant‑petitioner stated that he be allowed one month's time to make up the deficiency in Court‑fee. Upon this request, the appellant‑petitioner was granted time to make up the deficiency of Court‑fee before next date of hearing i.e. 20‑12‑2001. The Court‑fee was not paid uptil 2‑1‑2002, therefore, the appeal was dismissed for want of making up of deficiency in the Court‑fee by the learned Additional District Judge, Bahawalpur on the said date. Hence, this writ petition.

3. Learned counsel for the petitioner submits that impugned order was not a speaking order as it has given no reason for the dismissal of the appeal. It has further been pleaded that the appellant‑petitioner had suffered illness, therefore, he could not deposit the amount and that the amount of Court‑fee was not clearly mentioned in the order for making up the deficiency of Court‑fee, the question of Court‑fee being a matter between the subject and the state and the respondent could not have any right to make any grievance in the event of non‑compliance of order of making up of deficiency in Court‑fee. Learned counsel has referred to Mukhi Chatromal and another v. Khubchand and 6 others 1993 SCMR 1113 and Sardar Muhammad Kazim Ziauddin Durrani and others v. Sardar Muhammad Asim Fakhuruddin Durrani and others 2001 SCMR 148.

4. Learned counsel for the respondent No.1 has vehemently opposed the submissions of the learned counsel for the petitioner. As pier learned counsel for respondent No. 1, the conduct of the petitioner is not of such nature as to grant him the concession to make up the deficiency of Court‑fee. The plea of ailment is an afterthought and the amount of Court‑fee was clearly mentioned in the application filed on behalf of respondent No. 1.

5. I have considered the arguments of learned counsels for both the parties and perused the record.

6. Although the impugned order dated 2‑1‑2002 is brief, yet it has given out the reason for dismissal of the appeal. The record of the appeal itself speaks volumes against the petitioner. The application moved by respondent No. 1, copy of which was delivered to the petitioner had clearly mentioned in Para No.2 that Court‑fee of Rs.15,000 was liable to he paid as the decretal amount was fixed to the tune of Rs.3,13,

500. As stated earlier this application had worked an intimation not only with regard to the decretal amount yet the amount of Court‑fee payable on the memo of appeal. It may be mentioned here that the petitioner has not appended with this writ petition the copy of the application moved by respondent No.1 knowingly. Learned counsel for respondent No.1 has produced a copy of that application in this Court before the learned counsel for the petitioner who does not dispute its contents. It was, therefore, that the statement was made by the learned counsel for the petitioner on 14‑11‑2001 that he be allowed one month's time to make up the deficiency of Court‑fee. This statement of the learned counsel for the petitioner unequivocally depicts the knowledge of the Court‑fee to be paid on the memo. of appeal and the consciousness of the appellant- petitioner for the liability specified therein, otherwise it would not have been couched in such words.

7. On 2‑1‑2002, when the impugned order was passed, the learned counsel for the petitioner had submitted to the Court that he had nothing to say as to why the Court‑fee was not paid. From the aforesaid statement on 2‑1‑2002, it appears that uptil that time plea of ailment was not concocted and there was no reason or explanation for the non payment of Court‑fee with the petitioner and it was afterwards that the plea of non‑payment of Court‑fee on the alleged ailment was thought, deviced and pleaded by the petitioner as stated in this writ petition. If there was any such ailment which had precluded the petitioner to make up the deficiency of Court fee, he would have moved the aforesaid Court for grant of more time along with proof of that ailment. The record produced with this writ petition also displays the ailment of Typhoid fever was not of such nature as could cripple the petitioner to make pursuit of his case in a Court through his agent or counsel even.

8. There is no doubt that the question of Court‑fee is a matter between the subject and the state yet it should not be lost sight of the fact that the Court‑fee has to be paid by the appellant‑petitioner in the Court whose duty is to look into the deficiency of Court‑fee and to direct a party to make up deficiency, if found upon examination of the document. As the conduct of the petitioner is not bona fide, therefore, this extra‑ordinary jurisdiction cannot be exercised in favour of such person. Accordingly, I dismiss this writ petition with no order as to costs. S.A.K./H‑45/L Petition dismissed.