P L D 1952 Peshawar 44 (PLP)

MUHAMMAD SHAFI, J.‑Sain, son of Muhammad Akbar Khan of village Ghazikot, instituted a suit against Shah Asghar Shah, son of Wali Shah, for possession of a vacant site, situated in Ghazikot, on payment of Rs.

60. The suit was resisted by the defendant, and was finally dismissed by the Court of Sub‑Judge, 1st Class, Mansehra, on the 29th of June 1950. During the pendency of the case an objection was raised by the defendant that after he had purchased this property, he .had constructed a building upon it, which cost him about Rs. 1,

200. A commissioner was appointed to assess the value of the house as well as the vacant site, and he by his report dated 31st December 1949, fixed the value of the superstructure at Rs. 300 and that of the site at Rs.

60. The plaintiff on the 28th of February 1950, was ordered to make up the Court‑fee on Rs. 360, which was duly done. After the dismissal of the suit the plaintiff went up on appeal to the Court of the Senior Sub‑Judge, Hazara. He put Rs. 60 as the value for purposes of Court‑fee and jurisdiction in the heading of the memorandum of appeal. He, however, affixed a Court‑fee of Rs. 1‑8‑0 only on the memorandum. The Office of the Senior Sub‑Judge Hazara raised an objection that the Court‑fee, which should have been paid by the appellant was Rs. 3‑12‑

0. It suggested that the appellant should be asked to pay the balance of the Court‑fee. On 31st August 1950, the Court ordered the appellant to make good the Court‑fee by 3rd October 1950. On this latter date the balance of the Court‑fee was not paid and so the time during which it could be paid was extended to the 10th of October 1950. On this last date the appellant did not appear in Court, nor did he pay the balance of the Court‑fee with the result that the Court of Senior Sub‑Judge rejected the appeal under O. 41 r. 3, read with O. 7, r. 11, C, P. C. An application was made by the appellant for setting aside this order, which was dismissed by the same Court on 25th November 1950. The plaintiff has now come up on appeal to this Court against the order of the Senior Sub‑Judge rejecting his appeal: The learned counsel for the appellant has contended that the order of the Senior Sub‑Judge rejecting the appeal under O. 41, r. 3, C. P. C. was without jurisdiction. This provision of law runs as follows :‑ "(1) Where the memorandum of appeal is not drawn up in the manner hereinbefore prescribed, it may be rejected, or be returned to the appellant for the purpose of being amended within a time to be fixed by the Court, or be amended then and there. (2) Where the Court rejects any memorandum, it shall record the reasons for such rejection. (3) Where a memorandum of appeal is amended, the Judge, or such officer as he appoints in this behalf, shall sign the amendment." The manner in which the memorandum of appeal has got to be drawn up is given in O. 41, r. 1, C. P. C. which is to the following effect :‑‑ "(1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader, and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompained by a copy of the decree appealed from and (unless the appellate Court dispenses therewith) of the judgment on which it is founded. (2) The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative ; and. such grounds shall be numbered consecutively." It shall be seen that under the above provisions of law it is nowhere provided that the memorandum of appeal shall be rejected if it is written upon paper insufficiently stamped. This is unlike the provision of O. 7, r. 11, C. P. C., which distinctly says that where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court fails to do so, the plaint shall be rejected. Under section 107 subsection (2) C. P. C., however, the Appellate Court has been given the same powers and has been authorized to perform as nearly as may be the same duties as are conferred and imposed by the Code of Civil Procedure on Courts of original jurisdiction in respect of suits instituted therein. This section, thus, would make the provision relating to the rejection of plaint applicable to the memorandum of appeal. In this reading of the law, the order of the learnead Senior Sub‑Judge in rejecting the memorandum of appeal will] be perfectly legal and not open to any objection. It should, however, be noted that in such cases the Courts should normally not accept the memorandum of appeal at all unless it is written upon a paper properly stamped. Under section 6 of the Court‑fees Act no document of the kind specified as chargeable in the 1st or 2nd schedule to that Act shall be filed, exhibited or recorded in any Court of justice unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said Schedules as the proper fee for such document. If the Court erroneously receives such document and it finds that it is deliberately stamped insufficiently, I think the Court would be perfectly justified in rejecting the memorandum of appeal. The learned counsel for the appellant contended that instead of rejecting the memorandum of appeal or returning it to the appellant, the Court should have given time to the appellant to make good the Court‑fee on the memorandum of appeal on the analogy of Order VII, rule 11, C. P'. C. This question, however, does not arise in this case, because in the lower 'appellate Court the appellant was twice given time to make up the Court‑fee, which he failed to do, and under the circumstances the Court had no other alternative but to reject the memorandum of appeal. In substance and in law the order of the learned lower appellate Court seems to be quite justified, and is hereby upheld. The appeal fails and is dismissed with costs. Pleader's fee Rs.

20. Orders announced. A.H. Appeal dismissed.