2015 PLP 477 (MLD)

SHAHID JAMIL KHAN, J.

This petition is against order dated 12-7-2011 passed by Addl. District Judge, Rawalpindi whereby petitioner's appeal was dismissed for non-payment of court-fee on the date specified by appellate Court.

2. Facts briefly are that a suit for possession of plots or in alternative cost of land; Rs.5,00,000 along with damages Rs.1,50,000 was filed by the respondents which was decreed on 18-5-2010. On appeal, against the decree, the petitioners were directed to make up the deficiency of court-fee, required to be filed with the memo of appeal, on or before 12-7-2011. As court-fee was not paid as per direction, therefore, the appeal was dismissed.

3. Learned counsel submits that the proceedings in appeal continued for more than eight months without any objection or direction regarding the deficient court-fee. On 10-5-2011, the case was adjourned for arguments on application for additional evidence. He adds that on next date i.e.13-6-2011, neither the petitioners nor their counsel could appear before the court, however, a vice counsel appeared and order for payment of court-fee, on or before 12-7-2011, was made. He asserts that this direction was not communicated to the petitioners or their counsel, as the vice counsel appeared without authority. He argues that dismissal of appeal without granting final opportunity is an improper exercise of jurisdiction. He submits that the petitioners are still ready to deposit court-fee if so allowed. In support of his contentions, he placed reliance on Provincial Government through Additional Chief Secretary (Development) Government of Balochistan, Quetta and another v. Abdullah Jan and others (2009 SCMR 1378).

4. Learned counsel for the respondents has read the order sheet and submits that on 13-6-2011 power of attorney was filed on behalf of legal heirs of appellant No.1 (who died during the proceedings) in favour of Mr. Muhammad Nasrullah Awan, Advocate, therefore, the ground of petitioners that direction to pay court-fee was not in their knowledge is against the facts available on record. He further submits that an amended memo of appeal was also filed on the same date and it was specifically directed to make up the deficiency of court-fee on or before 12-7-2011. He emphasized that none appeared on behalf of the petitioners, on 12-7-2011, even to request for extension of time. He concludes that instant Revision Petition is an afterthought.

5. Heard both the counsel, record perused.

6. The decree was passed for Rs.6,50,000, therefore, it cannot be said that it was not in the knowledge of learned counsel for the petitioners that court-fee of Rs.15,000 was required to be affixed with the memo of appeal. The petitioners cannot absolve themselves of apparent defiance of the direction on the pretext that they had no knowledge. As pointed out by learned counsel for the respondents that on 13-6-2011, power of attorney on behalf of legal heirs of appellant No.1 was submitted in favour of the counsel, who was admittedly present in court on previous date i.e. 10-5-2011. Even otherwise, it is duty of counsel and responsibility of the petitioners to know about the orders of court passed in their absence. Normally, it is practice of the lawyers that they keep the order sheet updated in their record. The contumaciousness and mala fide on the part of petitioners establishes from the fact that, on the given date for supply of the court-fee, no one appeared even to request for extension of time, under section 148 of C.P.C. It is not believable, in presence of admitted fact that on 10-5-2011, the case was adjourned for arguments on application for additional evidence and till 12-7-2011 petitioners did not have any knowledge about the proceedings in the suit. The offer by learned counsel for the petitioners that they are ready to pay the court-fee will not help at this stage, under the facts and circumstances of this case.

7. The judgment in Abdullah Jan case (supra) relied upon by learned counsel is also examined. Though the apex court has held that "the basic object of all the statutes are to secure revenue for the benefit of the State and not to arm the litigant with the weapon of technicality" but the case was decided in favour of the appellant after holding that contumacy and positive mala fide could not be attributed to the counsel under the circumstances of that case. I am afraid this judgment cannot rescue the petitioners. There is another judgment though not referred in arguments, i.e., Mst. Jindo Mai v. Muhammad Bakhsh (2010 SCMR 48) Hon'ble Supreme Court, while deciding the appeal in favour, has observed "Conduct of petitioners could not be declared contumacious nor they had acted with mala fide intention to deliberately flout orders of the Court". This judgment, also does not favour the petitioners under the facts of this case.

8. However, where the deficiency is not supplied despite giving opportunity and the conduct was found contumacious, court's view is against the delinquent. In another case Riffat Iqbal v. Mst. Fatima Bibi (2007 SCMR 494) it is held, "Once opportunity to make good the deficiency in court-fee was provided to pre-emptor and if she had failed to discharge her legal obligation then she was not entitled to any relief". Even in basic judgment i.e. Siddique Khan v. Abdul Shakur Khan (PLD 1984 SC 289) it was held, "appeal could be dismissed only if, a party was found guilty of `contumacy' or "positive mala fide" in paying deficient court-fee as held in 1972 SCMR 179".

9. For what has been discussed above, it is established that petitioners had flouted the direction of appellate court to pay the court fee with positive mala fide and their conduct during the proceedings was contumacious, therefore, dismissal of appeal by the appellate court was justified.

10. No material irregularity or illegality is found in exercise of jurisdiction by the appellate court, the revision petition is dismissed. AG/M-234/L Petition dismissed.