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Civil Revision No. 2039 of 1980, decided on 8th February, 1983,

‑"‑O. X.I, rr. 18 & 19 and S. 115‑Application for readmis sion of appeal dismissed for petitioner's failure to pay process fee Application not carefully read or completely misinterpreted by Additional District Judge‑Petitioners failure to pay process fee proceeding from misapprehension and entirely unintentional not Tanta mounting to disputing liability to pay‑Petitioners alongwith application also filing Fard Talbana bearing court, fee stamps of requisite amount‑Petitioners depositing process fee on three occasions earlier and their case not of contumacious refusal to pay process fee Explanation offered constituting sufficient cause‑Order of Additional District Judge dismissing application for re‑admission of appeal set aside.

A. Rashid Malik for Appellant.

Respondents : 'Ex parte.

Date of hearing : 8th February, 1983.

The respondents in this civil revision filed a suit for a declaration that the electricity consumption bills sent by the petitioners to them we incorrect; bogus, fictitious, illegal and mala fide and that they were not liable to pay the same together with the consequential relief that the petitioners be restrained from disconnecting their electric supply for the non payment of the said bills. The suit was decreed by the trial Court. The petitioners preferred an appeal before the District Judge from the judg ment and decree of the trial Court. The District Judge entrusted the appeal to Mr. Nafees Ahmad Bajwa, Additional District Judge, for disposal. Notices were sent to the respondents on a number of occasions but except for respondent No. 3, these could not be served upon them. As respondent No. 3 did not appear in Court despite the receipt of notice the learned Additional District Judge directed that so far as he was concerned the appeal should be heard ex parte. On 22nd April, 1980, when respondents Nos. 1, 2 and 4 had still not been served the appeal was transferred to the Court of Mr. Ghulam Sarwar Sheikh, Additional District Judge, Gujranwala. On that day Mr. Ghulam Sarwar Sheikh, directed that fresh notices be issued to respondents Nos. 1, 2 and 4 for 21st May, 1980 and that the petitioners should deposit the process fee within three days. When the appeal came up for hearing on 21st May, 1980 it was found that the petitioners had not deposited the process‑fee. Consequently, the learned Additional District Judge dismissed the appeal under rule 18 of Order XLI of the Code of Civil Procedure. On that very day the petitioner said fard‑talbana carrying the appeal. amount of the court‑fee application they It was stated in the application that they were under a misapprehension that the process‑fee had already been deposited and on account of that misapprehension they had mistakenly failed to pay fresh process‑fee. The learned Additional District Judge did not consider this explanation as satisfactory and dismissed the application. From the order of the learned Additional District Judge the petitioners have come in revision to this Court.

2. The respondent could not be served in the ordinary way and accordingly x Citation was published in a newspaper. They have still not cared to appear before me. For that reason this civil revision has been heard ex parte.

3. In dismissing the application for re‑admission of the appeal the learned Additional District Judge observed "There can be no denying the fact that the learned counsel representing the applicants, had put up his appearance in Court, after the appeal was received in this court by way of transfer. It also goes without saying that notices were ordered to be issued to respond ents Nos. 1, 2 and 4 subject to payment and deposit of process‑fee in presence of the learned counsel for the applicants. These aspects and factors are sufficient enough to belie and falsify the claim and averments of the applicants. Besides the application, nowhere, explains the omission or lapse on the part of applicants, who, have rather disputed the very liability of depositing the necessary pro cess fee. In these circumstances, carelessness, or negligence on the part of the applicants is so vivid and glaring that it does not admit of any concession to them.

I am afraid the learned Additional District Judge has either not carefully read, the application of the petitioners or completely misinterpreted it. The petitioners have stated in their application that their failure to pay the process‑fee in compliance with the order of the learned Additional District Judge proceeded from misapprehension and was entirely unintentional. It is not tantamount to disputing the liability to paying process‑fee. In fact, as already mentioned, together with the application they had also filed a lard‑talbana bearing court‑fee stamp of the requisite amount. Had the petitioners disputed their liability to pay fresh process‑fee they would not have filed the fard‑talbana with their application. This aspect of the matter was entirely ignored by the learned Additional District Judge. It is also to be noticed that on three' occasions earlier the petitioners had deposited the process‑fee. For some eason or the other three of the respondents could not be served. It was thus not a case of contumacious refusal to pay any process‑fee on the part of the petitioners. In the circumstances the learned Additional District Judge should have accepted the explanation offered by the petitioners as constituting sufficient cause within the meaning of rule 19 of Order XLI of the Code of Civil Procedure.

4. For the reasons stated above I accept this civil revision, set aside the order of the learned Additional District Judge and direct tha4 the appeal of the petitioners should be re‑admitted and disposed of in B accordance with law. The costs in this civil revision shall abide the final event.

M.Y.H Revision accepted.

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