2016 PLP 79 (YLRN)

SHAHID WAHEED, J.

Challenge in this appeal is to the judgment and decree dated 28.9.2010 passed by the learned Additional District Judge, Pindi Bhattian whereby the suit of the respondent for recovery of Rs. 1,500,000/- was decreed.

2. The respondent, Altaf Ahmad, on the basis of Cheque No.3735643 dated 11.10.2007 instituted a suit under Order XXXVII, Rule 1 and 2, C.P.C. against the appellant, Muhammad Shabir Salfi, for recovery of Rs. 1,500.000/-. In response to summon the appellant entered appearance before the learned Trial Court and filed an application for leave to defend the suit. The respondent contested the application by filing reply. The learned Trial Court vide order dated 21.7.2010 accepted the above said application and permitted the appellant to appear and defend the suit subject to furnishing of surety bond equivalent to the suit amount. Thereafter, on 4.8.2010, the appellant filed an application before the learned Trial Court seeking extension in time to furnish surety bond. Contesting reply to this application was filed by the respondent. The learned Trial Court vide order dated 28.9.2010 rejected the application; and, through a separate judgment of even date decreed the suit.

3. The appellant feeling aggrieved by the judgment and decree dated 28.9.2010 passed by the learned Additional District Judge, Pindi Bhattian, District Hafizabad, filed the instant appeal within the prescribed period of limitation. The office of this Court vide Diary No. 93212 dated 4.11.2010 returned the file to the appellant with certain objections mentioned in the objection-sheet and directed him to resubmit the same within a period of three days. One of the objections was that the court fee was insufficient. The appellant on 13.6.2011 after removing the objections including the objection of court fee resubmitted the file; and, also filed an application (C.M. No. 1-C/2011) under section 5 of the Limitation Act for condonation of delay. In view of delayed resubmission of file, at the outset of hearing, learned counsel for the respondent by relying upon the cases of Ghulam Hussain and 3 others v. Bahadar (PLD 1954 Lah. 361), Muhammad Ahmad v. Muhammad Ali and others (PLD 1996 Lah. 158) and Naheed Ahmad v. Asif Nawaz and 3 others (PLD 1996 Lah. 702), contends that the instant appeal is barred by time and, therefore, be dismissed. In reply to the above said preliminary objection the learned counsel for the appellant submits that the appeal was filed within time; that although the appellant due to his poverty could not supply the requisite court fee within the time granted by the office of this Court yet the same was supplied and accepted by the office without any objection and thus at this stage the appeal cannot be dismissed on the ground of limitation. I have considered the arguments canvassed by the learned counsel for the parties. The precedents cited by the learned counsel for respondent do not apply to the facts of the instant case. However, in this regard guidance may be had from the judgment passed by the Hon'ble Supreme Court of Pakistan in the case of Mst. Sabran Mai v. Ahmad Khan and another (2000 SCMR 847) wherein it has been observed that "once a suit, appeal or revision has been presented before the authorized officer of the court within prescribed period of limitation, it cannot be treated time barred for the reason that the office has noted defects in the proceedings which have not been removed by the concerned party or his Advocate, and in such like situation the presiding officer of the Court at the best can consider the maintainability of proceedings in view of the provisions of Order VII, Rule 11, C.P.C. or identical provisions available in the Code of Civil Procedure or the law. under which the proceedings were instituted. It is also important to note that parties advocates are also not absolved from their duty to remove the objection within the stipulated period prescribed by the concerned authorized officer subject to condition that specific notice has been served upon the party or Advocate to do the needful. Even if after notice the defect is not removed the case shall be listed before the presiding officer who may in his discretion allow time to comply with objection of office." Thus, the question that needs determination in this case is as to whether this Court at this stage can condone the delay in complying with the objections of office or accept the court fee which was deposited after eight months from the date of objection raised by the office? The answer to this question is in the affirmative. The case in hand shows that the office raised certain objections on the memorandum of appeal and returned the case to the appellant. The appellant was required to remove the objections within a period of three days but he took eight months to do the same. The office after eight months received the file and the court fee without any objection; assigned number; registered the same as regular first appeal; and, fixed the case on judicial side. The memorandum of appeal if unstamped or insufficiently stamped falls to be dealt with under section 149, C.P.C. which empowers the Court in its discretion at any stage to allow the appellant to supply the deficiency in court fee and upon such payment the memorandum of appeal shall have the same force and effect as if such fee had been paid in the first instance. This view finds support from the judgments of the Hon'ble Supreme Court rendered in the cases of Yaqoob Khan v. Rasool Khan and others (1981 SCMR 155) and Siddique Khan v. Abdul Shakoor Khan (PLD 1984 SC 289). The principle governing exercise of power under section 149, C.P.C. is that the discretion of the Court is not to be exercised arbitrarily or capriciously but judiciously and with utmost care. Normally, the discretion may be exercised in favour of the litigant except in the case of contumacy or positive mala fide or negligence. In the case in hand the appellant in C.M.No.1-C/2011 has urged that delay in filing the court fee was neither deliberate nor intentional rather this was due to poor financial position; and, that he after getting loan had affixed the court fee. This assertion is supported by an affidavit. The above stated assertions have not been refuted by a counter-affidavit. Thus, there is no reason to suppose that the appellant was guilty of contumacy or he had deliberately avoided to pay proper court-fee; and, being guided by the order of the Hon'ble Supreme Court made in the case of Alauddin (deceased) represented by Mst. Kalsoom Begum and others v. Abdul Raheem and 3 others (1988 SCMR 1688) I hereby condone the delay in complying with objections of the office; accept court fee which was deposited by the appellant; and, accept C.M. No.1-C/2011 so as to make sure as to whether the judgment and decree of the learned Trial Court calls for any interference.

4. On merits of the case, the learned counsel for the appellant submits that the judgment and decree of the learned court below suffer from misapplication of the provisions of law; that the learned Trial Court erroneously dismissed the appellant's application for extension in time to furnish surety bond; and, that notwithstanding the failure on the part of the defendant/ appellant to comply with the condition of the leave granting order the learned Trial Court was required to apply its mind to the facts and the documents before it but this exercise was not done by the learned Trial Court and thus this irregularity rendered the impugned judgment and decree void. Conversely, the learned counsel for the respondent has vehemently opposed this appeal and submitted that due to failure of the appellant to comply with the condition of leave granting order the learned Trial Court had no option but to decree the suit. I have examined the contentions raised by the learned counsel for the parties. The learned Trial Court vide order dated 21.7.2010 granted leave to the appellant subject to furnishing of surety bond equivalent to the suit amount. The appellant could not furnish the surety bond before the next date of hearing and for this reason the learned Trial Court decreed the suit. The appellant also filed an application seeking extension in time to furnish surety bond. This application was also dismissed by the learned Trial Court vide order dated 28.9.2010. The question involved in this case is as to whether due to default in furnishing surety bond, the learned Trial Court could decree the suit? This question may be answered by examining the order dated 21.7.2010 whereby leave was granted to the appellant in following terms:- "Therefore, I accept the application and permit the petitioner to appear and defend the suit as defendant subject to furnishing surety bond for an amount of equal to suit amount i.e. Rs. 15,00,000/-. Now to come up for further proceedings on 3.8.2010." The perusal of the above said order shows that the learned Trial Court while granting leave to the appellant did not specify any time to furnish the surety bond. The learned Trial Court was required to specify the time period for furnishing the surety bond. The omission of time period in the leave granting order could neither bring an occasion of default in fulfilling the condition of furnishing surety bond nor give rise to a cause of action for filing an application seeking extension in time to furnish surety bond. Thus, the filing of application, on behalf of the appellant, for extension in time to furnish surety bond was uncalled for; and, similarly the order dated 28.9.2010 dismissing the said application was unjustified. In view of above, I am of the opinion that the learned Trial Court fell into error while recalling the leave granting order; and, decreeing the suit of the respondent.

5. In view of the foregoing position, I would allow this appeal and set aside the impugned judgment and decree dated 28.9.2010, remit the case to the learned Trial Court for adjudication afresh in accordance with law. The order dated 28.9.2010 whereby appellant's application for extension in time for furnishing surety bond was rejected is also set aside. The acceptance of appeal is subject to the condition that the appellant shall furnish surety bond as directed by the learned Trial Court vide order dated 21.7.2010 within one month from today. There will, however, be no order as to costs. The parties shall appear before the learned Trial court on 16.01.2014. ZC/M-72/L Appeal allowed.