2003 PLP 1548 (CLC)

SAYED ZAHID HUSSAIN, J.

Order dated 27-2-1997 passed by the learned Additional District Judge, Lahore whereby the suit was dismissed for failure of the plaintiff to make up the deficiency in court- fee, has been assailed through this appeal.

2. It was a suit for injunction instituted by the appellants/plaintiffs that the defendant/respondent be restrained from infringing the trade mark of the plaintiffs/appellants. A court-fee of Rs.20 was paid on the plaint. On. 29-1-1997 it was observed by the Court that the plaintiffs/appellants should make up the deficiency of court-fee to the tune of Rs.33,980 before the next date i.e. 27-2-1997. On the said date an application under section 148 of Code of Civil Procedure, 1908 for extension in time was moved which was dismissed by the Court the same day and the plaint was ordered to be rejected.

3. It is contended by the learned counsel that the application for extension of time was dismissed by the Court on an erroneous view of the matter that once the time had expired, it could not be extended. Reference in this context has been made to Sultan Ahmad and others v. Khuda Bux and others 1986 SCMR 1005 and Ata Muhammad v. Abdul Aziz and others 1988 SCMR

759. The learned counsel for the respondent has however, endeavoured to support the order passed by the learned Additional District Judge on the strength of Allah Yar v. Muhammad Riaz and others PLD 1981 SC 489 that the plaintiffs/appellants were negligent in the matter of payment of court-fee.

4. The record has been perused with the assistance of the learned counsel for the parties. The perusal of the application made under section 148, C.P.C. shows that extension in time was sought for depositing court-fee, pleading that "the plaintiff is considering the amicable settlement of the matter by way of compromise under the changed circumstances of the case". However, the said application was rejected without even seeking reply from the other side. It is noteworthy that the consideration that weighed the learned trial Court was the expiry of the time already granted. Such an approach was untenable inasmuch as the time could be extended by the Court even if it had expired. The Court was still possessed of power and jurisdiction to order making good of the deficiency in court-fee under sections 148 and 149, C.P.C. Reference in this context may be made to Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289 and Abdur Rahim alias Reheema v. The State 1986 SCMR

105. We therefore, are of the view that no prejudice would have been caused to the other side even in case extension in time, in making good the deficiency in court-fee had been granted to the appellants/plaintiffs. The order thus passed by the learned trial Court in rejecting the plaint for failure of the plaintiffs/appellants to pay the court-fee is not sustainable which is set aside. We thus grant time of one month from today to the appellants/plaintiffs to make good the deficiency in court-fee and to appear before the learned District Judge, Lahore on 12-7-2003 for entrustment of the suit to the successor Court which passed the order on 27-2-1997. The appeal is accordingly accepted with the above observation. No order as to costs. M.B.A./B-155/L Appeal accepted.