1984 PLP 579 (SCMR)

(c) Constitution of Pakistan (1973)-- ‑‑‑‑ Art. 185(3)‑Civil Procedure Code (V of 1908), S. 149‑Court‑fee, deficiency in‑Ground advanced before High Court that "reduction in amount of compensation awarded by Court to limit of amount for which court‑fee had already been paid" but not repeated before Supreme Court‑Leave to appeal granted whether such ground could be examined.‑[Court‑fee]. Bashir Ahmad Ansari, Advocate with Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner. Date of hearing : 27th September, 1980. SHAFIUR RAHMAN, J.‑The Land Acquisition Collector` and the Cantonment Board, Rawalpindi, seek leave to appeal against the judgment of the Lahore High Court dated 25‑3‑1980 whereby a Regular First Appeal filed by the petitioners challenging the determination of the compensation payable to owners of the land on a reference under section 18 of the Land Acquisition Act was dismissed on the ground that the memo of appeal was deficiently stamped. 2.Land measuring 11 Kanals 9 Marlas situated in Mauza Kotha Kalan, Tehsil and District Rawalpindi, along with others, was acquired for the Ayub National Park. The Land Acquisition Collector adjudged the compensation payable to the land owners at the rate of Rs. 2,000 per Kanal. The affected land was sought reference under section 18 of the Land Acquisition Act whereupon the Administrative Civil Judge, Rawalpindi, enhanced the compensation to Rs. 6,000 per Kanal by his order dated 31-8‑1972. 3.The petitioners appealed against the determination of the compensation as enhanced by the Administrative Civil Judge and affixed a court‑fee stamp of Rs.

15. The appeal came up for hearing on 3‑5‑1980 when arguments on merits were concluded and the judgment reserved. On detecting that the memo: of appeal was not properly stamped the appeal was relisted and reheard on this aspect of the case on 25‑3‑1980 and dismissed the same day holding that under section 8 of the Court Fees Act the court‑fee payable on the memorandum of appeal was Rs. 42,

180. Hence this petition.

4. The learned counsel for the petitioners has taken up before us two grounds for challenging the decision. The first is that section 8 of the Court Fees Act which has been applied was in terms not applicable and this aspect of the case was noted by a Full Bench of the West Pakistan High Court in Province of West Pakistan v. Qadir Bux and others (P L D 1960 (W. P.) Lah. 665). It was held in that case that "in the case of appeals by claimants, section 8 of the Act, which is not itself a charging section, lays down the manner in which the court‑fee is to be computed, there is no corresponding provision prescribing the method of computation of the court‑fee in the case of an appeal by the State, and if to cover the case of claimants, it was considered necessary to add a special section, it is unfortunate that no similar provision exists in the case of State appeals. In the same judgment it was noted that the question whether this section is applicable to an appeal by Government against "the amount of compensation awarded by the Collector is one on which the various High Courts have held different opinions, but the Punjab Chief Court ruling referred to above is unique in this respect, that it is the only one which a fixed court‑fee has been held to be payable under Article 17(iv) of Schedule 11 of the Act, and this view has been expressly dissented from b3 all the other High Courts that have had the occasion to discuss it.

5. The` other ground urged by the learned counsel for the petitioner is that even if such a deficiency as was found existed, as it was bona fide, the petitioners should have been first called upon to make up the deficiency in court‑fee as would appear from the provision of Order VII, rule 11 read with section 149, C. P. C. Order VII, rule 11, C. P. C. though in terms is not applicable to appeals but the principles enshrined therein have been extended on the basis of sections 107 and 149, C. P. C.

6. Another ground and the only one that was advanced before the learned Judges in the High Court, but has not been repeated before us, was that the reduction in the amount of compensation awarded by the Court to the limit of he amount for which court‑fee had already been paid could be examined.

7. We find that the questions raised require fuller examination and a more authoritative pronouncement. Leave is, therefore, granted. Security is dispensed with as a representative of the Government is the petitioner/appellant. M. A. K. Leave granted.