1984 PLP 590 (SCMR)

KARAM ELAHEE CHAUHAN, J.‑‑Muhammad Sharif (hereinafter called the plaintiff) filed a suit for pre‑emption which was decreed by the learned Civil Judge on 29‑7‑1975.

2. The defendants/respondents filed an appeal in the Court of the learned Additional District Judge in which on I‑9‑1975 the office made an endorsement that the court‑fee thereon was proper. However, during the pendency of that appeal, on 7‑7‑1976, the plaintiff‑petitioner filed an application taking objection and pointing out that the appeal was not sufficiently stamped. On that very date, the defendants‑respondents at once put in an application that fard khalis munafa may be got prepared from the revenue authorities. That application was granted and the case was adjourned to 21‑7‑1976. On the last mentioned date, namely, 21‑7‑1976, the fard khalis munafa was ‑ presented and the Court adjourned the case to 28‑7‑197a direction the defendants to make good the deficiency of court‑fee by that time. That order was complied with. But, however, when the appeal was taken up for hearing on merits, the learned Additional District Judge dismissed the same on 27‑10‑1976, on the ground that the deficiency in the court‑fee which was later on made good could not be of any avail to the defendants, because, by that time, the limitation had run out and there was no ground to condone the delay.

3. The defendants filed a second appeal being R. S. A. 88/1976 which was accepted by a learned Single Judge of the Lahore High Court on 25‑4‑1978 whereby he set aside the order of the learned Additional District Judge and remanded the case to him for its decision on merits.

4. The plaintiff‑petitioner has come up in a petition for special leave to appeal against the same to this Court.

5. It has been argued that the necessity for paying tie enhanced court fee of appeal had arisen because by the time the appeal was filed, the scale and rates of court‑fee fur appeals of this type had been enhanced by law. It was argued that the defendants should have stamped their appeal in accordance with the new law then in vogue and that mere ignorance of that law was no excuse to allow the extension for making good the deficiency off court‑fee as held by the High Court. The contention has no merit. No doubt, ignorance of law, generally speaking, is no excuse, but then each case depends on its own facts and circumstances. In the instant case, it is a common ground, that the appeal bore the same court‑fee which had been filed by the plaintiff‑petitioner himself on his plaint and the same was the quantum of court‑fee shown in the judgment and decree under appeal before the learned Additional District Judge. The defendants thus were led in trap by the court‑fee fixed on the plaint and the learned Additional District Judge had rightly granted them time to get fard khalis munafa prepared so as to fix the court‑fee in accordance with the new scale or standards which had in the meantime come into operation. It was, therefore, not a case merely of ignorance of law, but, there was some element of mistake, firstly due to the endorsement of the Registry of the District fudge that the appeal was correctly stamped and secondly due to the amount of the court‑fee which had been affixed on the plaint and which was so shown in the relevant copies of the judgment and decree granted to the defendants. The question was, essentially one of discretion and if the High Court in the regular second appeal rectified the mistake committed by the learned Additional District judge and passed an order which ought to have been passed by the latter, the High Court committed no mistake warranting interference by this Courts.

6. The result is that this is not a fit case warranting grant of leave, The petition is dismissed. M. A. K. Petition dismissed.