2003 PLP 1658 (CLC)

Abdul Latif Afridi for Petitioner Qazi Zakiuddin for Respondent. Date of hearing: 13th June, 2003. Zahid Shah respondent/plaintiff filed Suit No.93/1 of 1999 against Ibrahim Said petitioner/defendant in the Court of Illaqa Qazi, Timargera for recovery of rupees three lacs with profits. The said suit was resisted by the petitioner/defendant by filing written statement. The learned trial Court after framing issues and recording pro and contra evidence of the parties decreed the suit vide judgment arid decree, dated 27-1-2000. Feeling aggrieved with the said judgment and decree, the petitioner filed Appeal No.9/13 of 2000 in the Court of Zila Qazi/District Judge, Dir Payan. The said appeal was also dismissed vide judgment and decree, dated 30-10-2002. Being not contented with the judgments and decrees of the learned Courts below, the petitioner has filed the revision petition in hand.

2. Qazi Zakiuddin, the learned counsel representing the respondent, at the very outset argued that under sections 6 and 28 of the Court Fees Act, the appeal shall be deemed to have not been filed before the Appellate Court because the petitioner has not affixed court-fee on the memorandum of appeal. Moreover, according to him, even if the petitioner is allowed to affix court-fee on the memorandum of appeal, his appeal would be barred by time. Reliance in this regard was placed on Mirza Ghulam Hussain v. Muhammad Bashir 1981 CLC 1689.

3. On the other hand, Mr. Abdul Latif Afridi, the learned counsel representing the petitioner, argued that the petitioner in his memorandum of appeal has clearly stated that due to the Shari-Nizam-e-Adl Regulation, 1999 in the Provincially Administered Tribal Areas the memo. of appeal was exempt from affixation of court-fee and in case the petitioner was directed to affix the court-fee he would have complied with the order of the Court, therefore, the impugned judgments and decrees which were passed without giving any notice for affixation of court-fee, were illegal. Reliance in this respect was placed on Wilayat Khatoon v. Khalil Khan and others PLD 1979 SC 821, Muhammad Sharif v. Maqsood Ali and others 1984 SCMR 90, Hashmat Ali v. Muhammad Sharif and others 1986 SCMR 405, Siddique Khan and others v. Abdul Shakoor Khan and others PLD 1984 SC 289, P.M. Amir v. Qabool Muhammad Shah 1999 SCMR 1049 and Sikandar Khan v. Muhammad Ashraf PLD 2003 Lah. 398.

4. I have heard the learned counsel for the parties at length and perused the record.

5. One of the grounds which prevailed with the learned. Appellate Court for dismissal of the appeal was that the petitioner had failed to affix court-fee on the memo. of appeal. Perusal of the order-sheet of the Court show that the appeal was filed by the petitioner on 9-3-2000 and the same was decided vide judgment and decree, dated 30-10-2002. During the pendency of the appeal, the learned Appellate Court did not give any direction to the appellant to affix court-fee on the memo. of appeal. Had the learned Appellate Court provided a specific time to the petitioner to affix court-fee on the memo. of appeal, and had the appellant failed to affix court-fee as per direction of the Court within the time given by the said Court, then of course the appeal was liable to be dismissed. It is now settled principle of law that the appeal shall be deemed to have been filed on the date of its original presentation notwithstanding the fact that court-fee was supplied after the period or limitation i.e. if the court-fee was later on affixed, that would not render the appeal barred by time. Since the Appellate Court has failed to provide specific time fur the appellant to affix court-fee on the memo. of his appeal and without giving such specific time, his appeal was dismissed therefore, the Court below has failed to properly exercise jurisdiction vested in it. I, therefore, allow the revision petition, set aside the impugned judgment and decree passed by the learned Appellate Court anti remit the case back to it with the direction to provide specific time to the, appellant to affix court-fee on the memo. of his appeal and then to decide JA the appeal on merits strictly in accordance with law. The needful be done within a period of three months. Parties are directed to appear before the learned Appellate Court on 25-6-2003. Office is also directed to remit the record back to the Court concerned before the date fixed. H.B.T./851/P Case remanded.