1983 PLP 1151 (SCMR)

MIAN BURHANUDDIN KHAN, J.‑‑This petition is directed against the judgment and order of the Lahore High Court, dated 14‑2‑1983 passed in Writ Petition No. 4855 of 1982.

2. Petitioner filed a suit for maintenance against respondent Walayat Khan her husband at the rate of Rs. 650 p.m. The suit was decreed for payment of Rs. 300 p.m. to the petitioner and the arrears were to be paid as calculated by the Court. Respondent filed an appeal before the Additional District Judge Gujrat affixing Rs. 158 court‑fee on the Memorandum of Appeal instead of Rs. 945 the required amount. An objection was raised to the deficiency of court‑fee but the appeal was dismissed on 14‑11‑1982 by the learned Additional District Judge on the ground of insufficiency of court‑fee affixed on the Memorandum of appeal. This order was challenged by Walayat Khan in writ petition which was heard and decided by the learned Judge of the Lahore High Court vide the impugned judgment dated 14‑2‑1983.

3. Learned counsel contended that on 14‑2‑1.983 counsel of the petitioner, who had to appear in .another urgent petition, reached the Court at 8‑12 a.m. and learnt that the petition had already been decided. Petitioner applied for setting aside the ex parte order the same day by an application. which was dismissed, on 16‑2‑1983 on the ground that the case had been called but none was present, therefore, it was decided ex parte and no good ground appeared for setting aside the impugned order. It was further contended that it was not the intention of law that if an objection to the deficiency of court‑fee on Memorandum of Appeal is not raised at the initial stage, the appeal cannot be dismissed on that ground and in that case the Court would decide the appeal without adverting to the objection about the deficiency of court‑fee; that the judgment of the learned Additional District Judge was not contrary‑ to' law which should have been set aside or interfered with by the learned High Court Judge in the writ jurisdiction as no illegality or irregularity had been committed by the learned first appellate Court and as such the constitutional jurisdiction could not be invoked by the respondent.

4. We have gone through the judgment of the learned Additional District Judge and the impugned order of the learned High Court Judge and find that quite weighty arguments have been advanced by the petitioner and, therefore, we convert this petition into appeal and notice is accepted by the learned counsel for the respondent Mr. M. Sher Alam, and, hold that the judgment and decree of the learned Additional District Judge was passed on correct principle of law. The respondent had filed an appeal on deficient court‑fee and the objection was raised at the initial stage by an application after the service was effected on the petitioner and it was pointed out in the application that the Memorandum of Appeal was not properly stamped. The reply given by the respondent that it was due to miscalculation but no miscalculation was pointed out and secondly the record of the case does not show that even an oral request was made for the extension of time to make‑up the deficiency in the court‑fee nor any application was filed on behalf of the respondent for the grant of permission to make up the deficiency Fateh Muhammad v. Abdul Ghani and another (P L D 1981 S C 371), may be referred in this connection wherein it was observed "In the present case, on finding that the plaint had been insufficiently stamped, the learned trial Court had granted extension of time to the plaintiff/petitioner on 13‑9‑1962, but he was negligent and contumacious in not bothering to make up the deficiency. More over, the petitioner had never made application requesting for the extension of time for this purpose. The trial Court, was, therefore, justified in dismissing the petitioner's suit on coming to know of his failure to obey its direction to make up the deficiency in the court‑fee."

5. In the light of above, we accept the appeal with costs and maintain the judgment and decree of the learned Civil Judge. S. Q. Appeal accepted.