1990 PLP 1723 (SCMR)

RUSTAM S. SIDHWA, J.‑‑‑This is an appeal preferred by the Province of the Punjab and another, appellants, against the judgment of a learned Single Judge of the Lahore High Court, Bahawalpur Bench dated 16‑3‑1982 dismissing their revision petition.

2. The brief facts of the case are that one Ghazanfar Ahmad Bajwa, present respondent, filed a suit for rendition of accounts against the Province of the Punjab and the Convenor, Peoples Works Programme, the present appellants, in the Court of the learned Senior Civil Judge, Rahimyar Khan, on 20‑10‑1976. On 25‑10‑1978 a preliminary decree was passed in favour of the respondent, whereafter a final decree for Rs.48,634.01 was passed against the appellants on 10‑12‑1981. Being aggrieved by the said judgment the appellants preferred an appeal against the same before the learned District Judge, Rahimyar Khan, on 6‑1‑1982. The appellants affixed a Court‑fee of Rs.15 on the said appeal, on the basis that the earlier suit filed by the respondent had been assessed by him for the purposes of Court‑fee and jurisdiction at Rs.200 on which the respondent himself had affixed Court‑fee of Rs.15 on the plaint. In para. 10 of the grounds of appeal, the appellants took up the under‑noted pica as a justification for not affixing the full Court‑fee on the decretal amount:‑‑ The memorandum of appeal was received by the office without any objection as to Court‑fee. On 6‑1‑1982 the appeal was admitted for regular hearing. On 2‑2‑1982 the learned District Judge without affording any opportunity to the appellants to make up the Court‑fee, dismissed the appeal on the ground that the appeal in question was incompetent and not maintainable due to the deficient Court‑fee being present on the memorandum of appeal. Being aggrieved by the said judgment, the appellants preferred a revision petition in the High Court, which was dismissed in limine on 16‑3‑1982. The appellants now challenge the said judgment before us.

3. On behalf of the appellants it is submitted, on the basis of section 107(2) and Order 7 and Rule 11(b) and (c) of the Code of Civil Procedure, that the appellant were at least entitled to one opportunity by the learned District Judge to make good the Court‑fee on the memorandum of appeal and this not having been done the judgments of both the appellate and revisional Courts deserve to be set aside. In this connection the learned counsel for the appellants has relied upon Shahna Khan v. Aulia Khan P L D 1984 SC 157 and Siddique Khan v. Abdul Shakur Khan P L D 1984 SC 289.

4. Nobody has appeared on behalf of the respondent.

5. We have given our anxious consideration to the arguments urged by the learned counsel for the appellants and have also gone through the record. It is true that the appellants were consciously aware of the decree for Rs.48,634.01 having been passed against them and should have filed their memorandum of appeal with court‑fees sufficient to cover the amount decreed, but in view of the rule laid down by this Court in Siddique Khan's case (Supra), the learned District Judge, Rahimyar Khan, should have allowed at least one opportunity to the appellants to make good the deficiency. This not having been done, the appellants are entitled to the remand of their appeal for the grant of such opportunity.

6. For the foregoing reasons, we allow this appeal, set aside the judgment of the High Court dated 16‑3‑1982 and remand the appeal to the Court of the District Judge; Rahimyar Khan, for disposal regarding the question of Court‑fee, in accordance with the two Supreme Court judgments cited above and further disposal of appeal thereafter, as required by law. This remand is without prejudice to any right which the respondent may have to urge the bar of limitation, in case that is available to him in law. A.A./P‑138/S Case remanded.