2005 PLP 312 (CLC)

4. It was also argued that the law demands adjudication on merits and technicality which becomes hurdle in the way of grant of justice be ignored.

5. On the other hand Mr. Khalil Khan Khalil, Advocate the learned counsel for the respondent argued that the petitioner had been given ample time to affix court‑fee. He was directed by the learned Appellate Court vide order, dated 8‑10‑2003 to affix court‑fee within three days, which he failed to affix till 19‑11‑2003 on which date the impugned order was passed.

6. It was also argued that the plea taken by the petitioner that he had been arrested in a criminal case, hence could not deposit the court fee was wrong. In fact he had been released on interim bail on 3‑10‑2003 and thereafter he was again released on bail after his arrest on 27‑10‑2003 till 19‑11‑2003, he had sufficient time to affix the court‑fee but he failed to comply with the order of the Court. Non‑affixing of court‑fee was contumacious, therefore, the learned Appellate Court has rightly dismissed his appeal.

7. I have heard the learned counsel for the parties and perused the record.

8. The perusal of the record shows that the petitioner filed Appeal No.37/13 in the Court of learned District Judge, Charsadda on 27‑2‑2003. It was vide order, dated 8‑10‑2003 that the learned Appellate Court directed the petitioner/appellant to deposit the requisite court‑fee within a period of three days and the case was posted for arguments for 19‑11‑2003, on which date the petitioner filed an application for extension of time for depositing court fee. The plea taken by the petitioner in the said application was that he was arrested in a criminal case registered against him under sections 452/324/34, P.P.C. and he could not deposit the said court‑fee due to his arrest in the criminal case. Since his bail before arrest application was allowed, therefore, time for deposit of court‑fee be extended. The learned Appellate Court did not bother to ask for reply of the said application from the other side and posted the case for 3‑12‑2003 for "further proceedings". The record further reveals for petitioner submitted yet another application on 2‑12‑2003 for grant of permission to deposit the court‑fee. On the said application the learned Judge made the following order:‑‑ "Muharrir to report". It was on, 3‑12‑2003 that appeal of the petitioner was dismissed for non deposit of court‑fee.

9. The question that needs determination in this case is as to whether the learned Appellate Court could extend the time for deposit of court‑fee even if the same had expired, answer to this question is in the. affirmative. The provisions of section 149, C.P.C. in this regard are very clear and the same are reproduced hereunder for convenience:‑‑ "

149. Power to make up deficiency of court‑fees.‑‑‑ Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court‑fee has not been paid the Court may, in its‑discretion at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such court‑fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such had been paid in the first instance." The plain reading of the above quoted section shows that the Court has discretion to allow the, person by whom court‑fee is payable to pay the whole or part as the case may, of such court‑fee "at any stage". A similar proposition came up for hearing before the august Supreme Court of Pakistan in Sultan Ahmad and others v. Khuda Bux and others 1986 SCMR 1005 in which it was held:‑‑ "It is well‑settled that the power vesting in the Court under section 148, C.P.C. can be exercised successively and even after the time under previous such order has expired. Therefore, nothing turns on the fact that there was a gap between the period covered by the two orders. So far as the justification for extension of time under section 149, C.P.C., the First Appellate Court applied its mind and came to the conclusion that the plaintiffs in the two suits were entitled to the grant of time in the circumstances of the case. This is a discretionary order and there is nothing to hold that the discretion was perversely exercised. The Courts below have acted upon the rule laid down by this Court in Siddique Khan v. Abdul Shakur Khan PLD 1984 SC 289 and there is no legal infirmity in the impugned orders in these two petitions. Both the petitions are accordingly dismissed."

10. Similarly, in Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289 wherein it was held that the Court has ample power to extend time for deposit of court‑fee.

11. Relying upon the above‑mentioned judgments in Bayer AG and another v. Pharmedic (Pvt.) Limited through Chief Executive 2003 CLC 1548 and the learned Appellate Court had not taken into consideration the applications made by party for grant of permission to deposit the court‑fee, it was held:‑‑ 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.".

12. The relevant provisions of law and the above quoted judgments take me to irresistible conclusion that the learned Appellate Court had ample powers to extend time even if the time granted for deposit of court‑fee by the Court had expired. The learned Appellate Court had in fact ignored two successive applications given by the petitioner for grant of permission to deposit the court‑fee, hence it not only failed to properly exercise jurisdiction vested in it, but also committed material irregularity by ignoring the two applications filed by the petitioner.

13. Another important aspect of the case is that the Court Fees Act is to be construed strictly in favour of the subject as it was passed with the object to secure revenue for benefit of the State and not to arm a litigant with the weapon of technicality to harass his opponent. Wisdom in this regard has been sought from Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289 in which it was held:‑‑ "It is also appropriate here to state the well‑accepted rule about Courts attitude towards the collection of court‑fee as agent of State. It is to the effect that the Court Fees Act like the other fiscal statutes is to be construed strictly and in favour of the subject; and that it was passed with the object of securing revenue for the benefit of the State and not to arm a litigant with, a weapon of technicality to harass his opponent. See Rachappa Subrao v. Shiddapa Venkatrao AIR 1918 PC 188, Muhammad Sharif v. Mst. Natho .PLD 1965 Lah. 686 and Sharaf Faridi v. M.S. Shahani PLD 1975 Kar. 59:"

14. The record reveals that the petitioner was not guilty of contumacy, positive mala fides and he did not lack bona fides. On the other hand he attempted always by filing applications to seek permission to deposit court‑fee. With the grant of permission to deposit court‑fee no prejudice would have been caused to the other side and even in case of extension in time in affixing the court‑fee had been granted to the appellant. I, therefore, allow the revision petition in hand, set aside the impugned judgment and decree passed by the learned Appellate Court and remand the case back to the learned District Judge, Charsadda. I also grant time of one month from today to the petitioner to affix the requisite court‑fee on the memorandum of appeal and direct the learned District Judge to decide the appeal within a period of four months strictly on merits in accordance with law. Parties are directed to appear before the said Court on 23‑12‑2004 and the office is directed to remit the record of the case back to the learned District Judge, Charsadda before the said date. There shall, however, be no order as to costs. H.B.T./295/P Revision allowed.