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Regular Second Appeal No. 231 of 1979, decided on 1st October, 1979.

(a) Civil Procedure Code (V of 1908)-

-- O. XIV, r. I-Framing of issues-Parties at variance on a_ point-Court under duty to frame issue on such point--Mere fact of plea being not raised in body of written statement but mentioned only in prayer, held, cannot absolve Court from framinu issue on such point.

(b) Court Fees Act (VII of 1870)-

--- S. 8-Deficiency in court-fee-Court duty bound to see appeal presented by affixing proper court-fee-Office accepting appeal without raising any objection as to insufficiency of court-fee Appellants, held, cannot be condemned.--[Duty of Court].

Mst. Walayat Khatun v. Khalil Khan and another P L D 1979 S C 821 distinguishable.

(c) Court Fees Act (VII of 1870)-

--- S. 28--High Court competent to direct memorandum of appeal being stamped as it ought to have been and on such a direction having been complied with every proceeding relating thereto deemed to be as valid as if document properly stamped in first instance.-[Appeal (civil)].

Chedi Lal and another v. Kirath Chand and others I L R 2 All. 682 and Nur Ahrnad v. Muhammad Jan Khan and others 1' L D 1972 Pesh. 164 ref.

Malik Muhammad Hussain for Appellants.

Ch. Muhammad Hassan for Respondent.

Dates of hearing : 30th September and 1st October, 1979.

This second appeal arises out of the judgment of the learned District Judge, Sheikhupura, in a suit for pre-emption wherein the grievance raised was that the appellants have made improvements on the land but the compensation has not been allowed to them. The appeal was admitted on this short ground.

2. Two questions were raised by learned counsel for the appellants firstly, that the plaint was insufficiently stamped and as such it should have been rejected and secondly that the question of compensation was raised in the written statement but no issue was struck since the original counsel for the parties were not present on the day of framing the issues and facts of the case were not brought to the notice of the trial Court by counsel appearing on behalf of counsel for the parties. It was the duty of the Court under sub-rule (5) of rule 1 of Order XIV, C. P. C to frame the issues of: which the parties were at variance. Another attempt was made by applying to the trial Court for appointment of a commission to assess the costs of improvements made on the land but this application was rejected. The suit was decreed by the learned trial Judge on 26th November, 1978. 1n para. 4 of the Memorandum of Appeal before the lower Appellate Court this plea was specifically raised but the learned District Judge, Sheikhupura, rejected it with an observa tion that the improvements were not in regard to the character of the land for agricultural purposes. In the body of the written statement such a plea was not raised but it is so mentioned only in the prayer clause. The mere fact that the plea of compensation was only mentioned in the prayer cannot absolve the Court from framing the issue on this point since the Court is duty bound to frame the issue on a point on which the parties are at variance.

3. On the other hand learned counsel for the respondent submitted that deficiency in court-fee was made up after preparation of Jhar bandobast. The decree sheet of the suit also discloses that the stamp on the plaint was of the value of Rs. 285. He submitted that in fact the appeal of the present applicants before the lower Appellate Court was incompetent, for, it was insufficiently stamped and so is the case in second appeal. He argued that the tinge having run out the appeal had become time-barred and should have been thrown on that ground.' Reliance was placed on Mst. Walayat Khatun v Khalil Khan and another (P L D 1979 S C 821). 1t was the duty of the Court to see that the appeal was presented by affixing proper court-fee. If the office had accepted the appeal without raising any objection to the insufficiency of the Court fee stamp the appellants cannot be condemned. No such objection was raised before the lower Appellate Court by the respondent. Simila mistake has been committed in this Court in accepting the second appeal The Supreme Court judgment is obviously distinguishable. In that, Base there was a direction by the Court to make good the deficiency in court-fee by a certain period. The order having not been complied with by the plaintiff the plaint was rejected.

4. The question arising in this appeal was considered by a Full Bench in Chedi Lal and another v. Ktrath Chand and others (1 L R 2 All. 682). It was held as under :-

"If a document which ought to bear a stamp under the Court Fees Act has been used in the High Court, and the mistake or in advertence which permitted its reception in a lower Court, without being properly stamped, comes to light in the High Court, any Judge of that High Court may, under section 28 of Court Fees Act, direct that it should be properly stamped."

Under section 28 of the Court Fees Act, 1870, the High Court i competent to direct that the memorandum of appeal be stamped as i ought to have been and on such a direction having been complied wit every proceeding relating thereto shall be as valid as if the document C had been properly stamped in the first instance. Reliance was also placed on Nur Ahmod v. Muhammad Jan Khan and others (P L D 1972 Posh. 164) wherein the same question is dealt with in paragraph 6 at page 167. It is un necessary to decide the other question raised in the appeal. The appeal shall be deemed to be accepted. The case is remanded to the lower Appellate Court to determine the other question which was raised in paragraph 4 of the ground of appeal mentioned above provided the appellants make up the deficiency in the court-fee in this Court as well as in the lower Appellate Court within a period of a fortnight, failing which the appeal shall stand dismissed.

5. In view of the complicated question of law the parties are left to bear their own costs. Before parting with the case I must mention that the learned counsel for the parties prepared this case efficiently while arguing the case for two days.

M. Y. M.

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