Mst. YASMIN vs ADDITIONAL DISTRICT JUDGE, BHAWALPUR and others
This matter arose from a petition for leave to appeal against a High Court judgment that dismissed the petitioner's constitutional petition, thereby affirming an appellate court's dismissal of the petitioner's appeal for non-deposit of court-fee. The core legal question was whether an appellate court can dismiss an appeal for non-payment of court-fee on a decreed plot of land without first determining the actual value of the plot to calculate the correct fee. The Supreme Court of Pakistan held that the appellate court erred in fixing an arbitrary court-fee based on a separate suit for dowry articles without determining the valuation of the plot in question. The Court laid down the principle that a litigant cannot be punished or non-suited for non-compliance with a court-fee order where the court has failed to first determine the correct valuation of the subject matter of the suit, as such an exercise remains legally inconclusive.
- Can an appellate court dismiss an appeal for non-deposit of court-fee without first determining the actual valuation of the property in dispute?
- Whether a litigant can be non-suited for non-compliance with a court-fee order when the court-fee itself was fixed arbitrarily without proper valuation?
ORDER
' TASSADUQ HUSSAIN JILLANI, J.--- Leave is sought against the judgment dated 25-4-2006, vide which the learned High Court dismissed the constitutional petition filed by the petitioner and thereby affirmed the judgment and decree of the learned Appellate Court dated 2-1-2003, vide which petitioner's appeal was dismissed for non-deposit of court-fee.
2. Learned counsel for the petitioner seeks leave on the ground that the learned Appellate Court did not correctly value the plot which was claimed in suit and merely fixed Rs,15,000 as court-fee which was not tenable in law. Further adds that petitioner was not given sufficient opportunity to comply with the order.
3. Learned counsel for the respondents, on the other hand, defended the impugned judgment by submitting that the conduct of the petitioner has been contumacious and despite opportunities given respondent No,2, he did not comply with the order.
4. Having heard learned counsel for both the parties, we note that respondent/plaintiff had filed two suits i.e, one for dowry articles and other for dower. The former suit was decreed to the extent of Rs,1,50,000 the latter suit was also decreed to the extent of plot and dismissed with regard to the jewelry. Admittedly the value of the plot was not determined by the learned Trial Court and even the learned Appellate Court while fixing the court-fee of Rs,15,000 on 7-11-2002 did not determine the value of the plot and merely proceeded to fix the afore-referred court-fee in terms of the judgment and decree in the suit for dowry articles. We are, therefore, of the view that the learned Appellate Court before directing the petitioner to make up the deficiency in the court-fee ought to have determined the value of the plot in absence of which the exercise remained inconclusive and petitioner could not be punished and non-suited for non-compliance of the order.
5. In the afore-referred circumstances, the order dated 2-1-2003 of the learned Appellate Court dismissing petitioner's appeal and the impugned order dated 25-4-2006 passed by the learned High Court affirming the afore-referred order cannot be sustained. Resultantly, this petition is converted into appeal and allowed. Both the afore-referred orders are set aside. The petitioner's appeal shall be deemed to be pending before the learned District Judge, Bahawalpur who shall determine the court-fee payable on the appeal in terms of the observations made by this Court and thereafter grant opportunity to the petitioner to make up the deficiency in court-fee and then hear the appeal on merit. Both the parties are directed to appear before the learned District Judge, Bahawalpur on 7-2-2007, who shall either hear the appeal himself or entrust the same to any Additional District Judge, Bahawalpur. There shall be no order as to costs.