1991 PLP 207 (SCMR)
FATEH MUHAMMAD and others‑‑Appellants Versus NAZIRAN BIBI and others‑‑Respondents
| Citation | 1991 PLP 207 (SCMR) |
| Forum / Court | High Court |
| Bench Members | Muhammad Afzal Zullah, CJ. and Ali Hussain Qazilbash, J |
| Parties | FATEH MUHAMMAD and others‑‑Appellants Versus NAZIRAN BIBI and others‑‑Respondents |
Q1: What are the key laws and sections cited in 1991 PLP 207 (SCMR)?
This judgment primarily cites: statutory provisions as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 1991 PLP 207 (SCMR)?
The case was heard and decided by the High Court bench comprising: Muhammad Afzal Zullah, CJ. and Ali Hussain Qazilbash, J.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 1991 PLP 207 (SCMR) (FATEH MUHAMMAD and others‑‑Appellants Versus NAZIRAN BIBI and others‑‑Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Representation
- S. Abid Nawaz, Advocate‑on‑Record for Appellants.
- S.M. Tayyub, Advocate Supreme Court for Respondents.
- Date of hearing: 1st April, 1990.
Headnotes / Summary
(On appeal from the judgment, dated 18‑6‑9984 of the Lahore High Court, Lahore in R.SA. No.185 of 1976). (a) Punjab Pre‑emption Act (I of 1913)‑‑ ‑‑‑S.15‑‑‑Civil Procedure Code (V of 1908), O.VII, R.11‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Leave to appeal was granted to consider effect of judgment of Supreme Court in Siddique Khan's case reported as PLD 1984 SC 289, on the present case. Siddique Khan v. Abdul Shakur Khan PLD 1984 S C 289 rel. (b) Punjab Pre‑emption Act (I of 1913)‑‑ ‑‑‑‑S.15‑‑‑Civil Procedure Code (V of 1908), O. VII, R.11‑‑‑Constitution of Pakistan (1973), Art.185‑‑‑Dismissal of appeal on ground of deficiency in court fee‑‑‑Legality of‑‑‑High Court, instead of dismissing appeal on account of deficiency in court‑fee, should have allowed pre‑emptor, at least one opportunity before applying punitive provision contained in O.VII, R.11, Civil Procedure Code, 1908‑‑‑No opportunity having been afforded in the said manner for supply of deficiency of court‑fee, appeal could not be dismissed on ground of deficiency in court‑fee‑‑‑Supreme Court set aside High Court's judgment, remanding the same to High Court for hearing of appeal from the stage, defect in proceedings took place‑‑‑Second appeal should be deemed to be pending before High Court.
Judgment & Decree
MUHAMMAD AFZAL ZULLAH, CJ.‑‑This appeal by leave of the Court by the plaintiffs (rival pre‑emptors) is directed; against the dismissal by the High Court of their Regular Second Appeal on the examination of the question of deficiency of court‑fee. Leave to appeal was granted to consider the affect of the judgment of this Court in the case of Siddique Khan PLD 1984 SC 289 on the present case. The suit of the appellant having been decreed, the respondents' appeal was allowed. The decree of the trial Court was set aside on examination of the merits of the case. The appellants filed an appeal before the High Court which was dismissed on short ground of deficiency in court‑fee without examination of the merits of the case. The learned Judge in the High Court observed that a court‑fee in the sum of Rs.600 was actually paid on the memorandum of appeal filed before‑ the learned First Appeal Court. However, the court‑fee of Rs.15 only was paid on the memorandum of Second Appeal. "Subsequently on an objection raised by the office the appellant paid further court‑fee of the value of Rs.165 thereby leaving a deficiency of Rs.420". After the above stage when the appeal came up for final hearing before the High Court it was conceded by the counsel for the appellants that the court- fee was deficient and the remaining amount still required to be paid. It was noted by the learned Judge that the deficiency had not by then (the date of the impugned order; namely, 18‑6‑1984), been made up. The explanation of the learned counsel for the appellants was noted that the appellants had not contacted him for doing the needful. The deficiency in the court‑fee having been admitted, the learned Judge proceeded to dismiss the appeal simply on account of this reason. As held in the case of Siddique Khan, at the afore‑stated stage, instead of dismissing the appeal on account of deficiency in the court‑fee the appellants should have been afforded at least one opportunity before applying the punitive provisions contained in Order 7, Rule 11, C.P.C. by reference. No opportunity having thus been afforded is the said manner for the supply of the deficiency of the court‑fee, the appeal could not be dismissed on the ground of the deficiency of court‑fee. Accordingly, this appeal is allowed. The impugned judgment is set aside and the case is remanded to the High Court for hearing of the appeal from the stage the defect in the proceedings took place. The Second Appeal thus shall be deemed to be pending. There shall be no order as to costs. AA./F‑184/S Case remanded.