1989SCMR1791 (PLP)

Hamid Aslam Qureshi, Advocate‑on‑Record for Appellant. Rana MA. Qadri, Advocate‑on‑Record (absent) for Respondent No.l. Date of hearing: 3rd May, 1989. JUDG MENT ALI HUSSAIN QAZILBASH, J.‑‑This appeal, by leave, arises from the order of a learned Single Judge of the Lahore High Court, dated 26‑1‑1980.

2. In a suit for pre‑emption a decree was passed in favour of respondent No.l by the Civil Judge, Vehari, on 23‑6‑1973. The appellant filed an appeal from the said decree but the same was dismissed by the Additional District Judge, Multan on 28‑5‑1975, on the sole ground of deficiency in the payment of the court‑fee on the memorandum of appeal. The appellant's regular second appeal was also dismissed as per the impugned order.

3. Leave in this case was granted to consider the legality of the refusal of the Additional District Judge, Multan, to extend time for making up the deficiency in the court‑fee on the memorandum of appeal against which the appellant's regular second appeal before the High Court failed in the light of the latest pronouncements of this Court.

4. After hearing the learned counsel for the appellant we think that the order of the Additional District Judge Multan, and that of the High Court cannot be sustained. True that the memorandum of appeal before the first appellate Court did not bear proper court‑fee but it is equally true that under section 6 of the Court‑fees Act a duty is cast upon the Court to determine the correct amount of court‑fee and not to accept a plaint or appeal which does not carry a proper court‑fee. In the instant case nether any objection as to the deficiency m the payment of the court‑fee was raised by the office nor by the Court when .the appeal was admitted. The fact that the appeal was filed with a lesser amount of court‑fee was brought to the notice of the Court by the appellant himself through an application wherein a complaint was made that he was misled in paying a B lesser court‑fee by the decree sheet; that no such objection was raised by the Court and prayed for permission to make up the deficiency. The Court, therefore, was, in the circumstances, under a legal obligation to have allowed the appellant to make up the deficiency in the payment of the court‑fee.

5. The new rates of court‑fee were introduced by the Punjab Finance Act, 1973. The deficiency in the payment of the court‑fee at the new rates may have been the result of lack of knowledge on the part of the appellant and, therefore neither contumacious nor mala fide, more so when the amount of court‑fee indicated in the decree sheet had been paid by him.

6. The view, therefore, that we take in the matter is that we allow the appeal and set aside the order of the learned Additional District Judge, Multan, dated 28‑5‑1975, and that of the learned Judge of the High Court, dated 26‑1‑1980. The case is remanded to the learned Additional District Judge to decide the appeal on merits. The appellant is directed to make up the deficiency in the court‑fee within three weeks from today. There is no order as to costs. MA.K/A‑513/S Case remanded.