Find a Lawyer

Civil Petition No. 483 of 1977, decided on 28th May, 1984.

(On appeal from the Judgment, dated 8‑6‑1977 of the Lahore High Court in Civil Revision No. 388 of 1976)

Constitution of Pakistan (1973)‑‑‑

‑‑‑Art.185(3)‑‑Civil Procedure Code (V of 1908), S.115‑‑Court‑fee‑ Leave to appeal granted to consider questions (i) whether order of District Judge allowing petitioner to make up deficiency in court‑fee on appeal and adjourning case for assessment of court‑fee was not contrary to law and (ii) whether on finding order of District Judge to be contrary to law it was necessary for High Court to remand case back to him instead of deciding same itself. [Court‑feel

Muhammad Sharif v. Maqsood Ali and others 1984 S C M R 590 ref.

Sardar Ata Ullah, Advocate Supreme Court and Sh. Abdul Karim, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 28th May, 1984.

‑ The petitioners herein brought a suit to pre‑empt the sale of a piece of an agricultural land sold by respondent No. 5, to the predecessors‑in‑interest of respondents 1 to 4 on the basis of a registered sale‑deed, dated 20th August, 1964. This suit was dismissed by the trial Court and an appeal was filed by the petitioners hereinbefore the District Judge, Gujranwala, against the judgment and decree of the trial Court. A question arose before him whether the correct court‑fee was paid on the memorandum of appeal

On the plaint filed in the trial Court, court‑fee was paid at ten times the land revenue according to the law prevailing at that time, On the memorandum of appeal also the same court‑fee was affixed. The office, however, reported that the court‑fee should have been paid on 15 times net profits of the preceding year in accordance with the provisions of the recently promulgated Finance Act, 1973. Here it may be mentioned that the appeal was filed on 1st September, 1973 after the promulgation of the Finance Act, 1973, which came into force on 1st July, 1973.

It appears that the objection of the office was not brought to the notice of the learned District Judge when the matter came up for hearing before him on 3rd September, 1973. Accordingly, he admitted the appeal and ordered issuance of notice to the respondents. When the respondents appeared, they took an objection to the maintainability of the appeal and submitted that it was barred by time. This objection was initially raised orally. However, the Court asked the respondents to submit their objection in writing. This was done on 22nd March, 1974 through a written application wherein it was prayed that the appeal should be dismissed on the ground that it was barred by time on account of the failure of the petitioners herein to pay the court‑fee on 15 times of the mesne profits as required by the provisions of the Act of 1973. This application was contested by the petitioners herein. The learned District Judge, by his order dated 29th March, 1976, was not persuaded to grant the prayer for dismissal of the appeal although he agreed that the memorandum of appeal was deficiently stamped. On the other hand, he allowed the petitioners to make up the deficiency in the court‑fee and adjourned the case to 30th April, 1976 for assessment of the amount of the court‑fee payable by the petitioners.

Feeling aggrieved by the order, dated 29th March,

1976 the respondents challenged it by means of a civil revision before the Lahore High Court and the matter was finally decided by a learned Single Judge of the said Court by his judgment, dated 8th June, 1977, which is now impugned before us.

The learned Judge held that the court‑fee had to be levied on the memorandum of appeal according to the law that prevailed at the time when the appeal was presented before the appellate Court and not in accordance with the law under which the plaint was stamped. He also held that the lower appellate Court was wrong in adjourning the matter and should have dismissed the appeal as insufficiently stamped when it was placed before him and that no time could have been allowed to the petitioners herein to make up the deficiency after the expiry of the limitation unless an extension was claimed under section 5 of the limitation Act and good cause adduced for showing this indulgence. However, ultimately, instead of accepting the revision and dismissing the appeal preferred before the District Judge by the petitioners herein as barred by time he passed a curious order, remanding the case back to the District Judge for deciding the application of the respondents, dated 23rd October, 1974(sic). No such application apparently is on record and it appears that the learned Judge was referring to the application, dated 22nd March, 1974 filed by the respondents praying for dismissal of the appeal of the petitioners herein which had been filed without affixing the proper court‑fee.

The petitioners now seek leave to appeal against the above mentioned judgment, dated 8th June, 1977 passed by the learned Single

Sardar Ataullah, learned counsel for the petitioners, has submitted that the order of the learned District Judge, dated 29th March, 1976 allowing the petitioners to make up the deficiency in court‑fee and adjourning the case for assessment of the amount of the court‑fee payable by them was not contrary to law nor was passed with any immaterial irregularity, so as to be amenable for correction under the revisional jurisdiction of the High Court. He also relied upon judgment of this Court reported as Muhammad Sharif v. Maqsood Ali and others 1984 S C M R 590 wherein, in somewhat similar circumstances, the High Court had extended the time or making up the deficiency in court‑fee and this Court observed that the High Court did not commit any mistake in so doing.

The contention raised before us, therefore, required further consideration.

Another question, which requires consideration, is whether after the learned Judge had found that the order of the learned District Judge, dated 29th March, 1976 extending time in making up the deficiency in court‑fee was contrary to law, it was necessary to remand the case back to him for deciding the matter in accordance with the law found by him to. be applicable in the case and not to have decided the case himself by accepting the revision petition and dismissing the suit of the petitioners herein.

Leave is granted to consider the above questions

Security in the sum of Rs. 1,000.

S.Q. Leave granted

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.