1986 PLP 559 (MLD)

(c) Civil Procedure Code (V of 1908)‑‑ ‑‑‑S.100‑‑Second appeal‑‑Appellate powers, exercise of‑‑First appellate Court committing material irregularity in treating suit as time‑barred wherein deficiency in court‑fee was made good by order of trial Court after period of limitation, held, would justify interference by High Court in exercise of appellate jurisdiction to set aside same and restore decree and judgment of trial Court. Muhammad Awais Shahid for Appellant. Malik Saeed Hassan for Respondent. Date of hearing: 16th February, 1986. Facts giving rise to this regular second appeal are that the appellant, Noor Muhammad, filed a suit on 10th September, 1974, for possession of certain land through pre‑emption. The land was transferred by Mst. Sondhi and others in favour of the respondent, Rukan Din, on 10th September, 1973, by means of an oral sale which was followed by a mutation. In the plaint, appellant (plaintiff) mentioned Rs.675 as valuation of the suit for the purpose of court‑fee and, accordingly, paid a court‑fee of Rs.51. The suit came up before a Civil Judge of Gujranwala, on 12th September, 1974 when he directed the appellant to furnish the statement of net profits on 12th November, 1974 to enable the Court to find out if correct court‑fee had been paid. On 12th November, 1974, the said statement was not filed and, therefore, the case was adjourned to 30th November, 1974 for the submission of the statement. On 30th November, 1974 the statement was put in. In view of the statement, it was found by the learned Civil Judge that the court‑fee was deficient by Rs.121.50. He, therefore, directed the appellant to make good the deficiency in court‑fee by 19th December, 19,

74. On 19th December, 1974, learned counsel for the appellant filed a challan regarding deposit of Rs.121.50. It was, however, represented by him that he could not purchase the court‑fee stamps. The learned Civil Judge, therefore, adjourned the case to 7th January, 1975 for the filing of the stamps. On 7th January, 1975 the stamps were filed and thus the deficiency in court‑fee was made good. The respondent contested the suit whereupon several issues were framed. Issue No.l related to limitation while issue No.2 was in respect of the valuation of the suit for the purpose of court‑fee and jurisdiction. The suit was decreed by the learned Civil Judge. Finding recorded by the learned Civil Judge on issue No.2 was that the appellant had paid court‑fee according to the statement of net profits filed by him and since there was nothing to the contrary, the court‑fee paid by the appellant was correct. Respondent went in appeal before the District Judge, Guiranwala. The learned District Judge upheld the finding of the learned trial Court on the issues relating to the merits of the case. In regard to the issues relating to court‑fee and limitation, however, he reversed the findings of the learned Civil Judge. View taken by the learned District Judge was "that the suit had become barred by time and neither it was properly valued for the purpose of court‑fee and jurisdiction nor deficiency in court‑fee made up within the prescribed time". Resultantly, the learned District Judge accepted the appeal and dismissed the suit. Feeling aggrieved by his judgment and decree, the appellant has come up in second appeal to this Court.

2. It was contended by learned counsel for the appellant that since the suit was filed by the appellant within one year of the sale, it could not be dismissed on the ground of limitation even though deficiency in court‑fee was made good after the expiry of the said period. It was also urged by him that the appellant could not be non‑suited for non‑payment of proper court‑fee in time without allowing him an opportunity to make good the deficiency in court‑fee, and since he had deposited the amount by which the court‑fee was deficient within the time allowed by the learned trial Court, it was good compliance with the order of the said Court in this behalf and as such no adverse order could be passed against the appellant. In this connection he invited my attention to photostat copy of challan form showing that the appellant had deposited Rs.122 on 16th December, 1974. It was submitted by learned counsel for the appellant that the appellant could not file necessary stamps with the learned trial Court on or before 19th December, 1974 because they were not made available to him till the said date. He placed reliance on Shahna Khan a. Aulia Khan and others P L D 1984 S C 157 and Siddique Khan and 2 others v. Abdul Shakoor Khan and another P L D 1984 S C 289 to support his arguments.

3. On the other hand, it was argued by learned counsel for the respondent that the appellant had been guilty of contumacy in the matter of payment of proper court‑fee and, therefore; he was not entitled to any indulgence. It was not disputed by learned counsel for the respondent that the suit was brought within time. It was, however, maintained by him that since the court‑fee was not paid in time' appellant was rightly non‑suited by the learned appellate Court.

4. As ruled in the cases of Shahna, and Siddique Khan and 2 others, relied upon by learned counsel for the appellant, the appellant could not be non‑suited for not paying requisite court‑fee without giving him an opportunity to make good the deficiency in court‑fee. It was on 30th November, 1974 to the learned trial' Court directed the appellant, for the first time, of make good the deficiency in court‑fee by 19th December, 1974. It was the deficiency of Rs.121.50. The appellant did deposit Rs.121.50 on 16th December, 1974, but could not get the court‑fee stamps before 19th December, 1974. On this date, therefore, he was allowed to file the stamps on 7th January, 1975 which was done by him. This means that the appellant had substantially complied with the order of the learned trial Court regarding. Making good the deficiency in court‑fee by 19th December, 1974. Court‑fee stamps were also filed by him before the subsequent date fixed by the learned trial Court. In the circumstances, I am unable to agree with learned counsel for the respondent that the appellant's conduct with regard to the payment of court‑fee was contumacious. It was, not a fit case for non‑suiting the appellant for not paying proper court fee at the time of the filing of the suit. In this view of the matter, th learned District Judge committed a material irregularity in interfering) with the order of the learned Civil Judge.

5. Since the appellant had made good the deficiency in court‑feel with permission of the learned trial Court, it will be presumed that the plaint was properly stamped when it was filed. The learned District Judge was, therefore, not justified in holding that the suit was time barred.

6. In view of the above discussion, I reverse the finding of the learned appellate Court on issues Nos.1 and 2 and decide the said issues in favour of the appellant. ???

7. Resultantly, I accept this appeal, set aside the judgment and decree of the learned appellate Court and restore those of the learned trial Court. There shall be no order as to costs. A.A. R???????????????????????????????????????????????????????????????????????????????????? Appeal accepted.