YAQOOB KHAN vs RASOOL KHAN AND Other

ORDER

1. MUSHTAQ HUSSAIN, J.-Qaim Khan and Rasool Khan filed a suit for a declaration of joint possession of some property including a garden. The matter went up to the High Court and they were permitted to amend the plaint to seek further relief in the shape of a prayer for possession of the suit property by amending the plaint. Consequent upon the amendment a fresh issue was framed as follows : "No. 4. Whether the suit is bad for purposes of court-fee and jurisdiction?"

2. A local commissioner was appointed who determined the value of the property at Rs.8,193 as against Rs.150 fixed by the plaintiffs. The plaintiffs instead of paying Rs.376/13 paid only Rs.15. The suit was dismissed.

3. An appeal filed against the decree was accepted. The defendants filed an R. S. A. Before the High Court of Peshawar in which the question of deficiency of court-fee was also raised. This appeal was accepted and the case was remanded to the lower appellate court with the direction that it will first consider the deficiency in court-fee on the memorandum of appeal and then decide the question of limitation.

4. On 7-11-1978 the Additional District Judge allowed the plaintiffs to make up the deficiency by 9-12- 1978. It was made up on 4-12-1978.

5. The defendants filed a Revision Petition on the ground that the appeal was barred by time because the deficiency in Court had been made up after the time allowed for filing an appeal had expired.

6. This petition was dismissed by the High Court of Peshawar on I1-5-1980. Hence this petition.

7. It has been submitted before us that since a valuable right had accrued to the petitioner, the plaintiffs appeal should have been dismissed on account of limitation.

8. We have heard the learned counsel for the petitioner. Order VII, rule 2 of the Code of Civil Procedure is not applicable to this case as an appeal and not the suit is claimed to have become barred by time. Section 149 of the Code of Civil Procedure is attracted to the facts of this case. That section gives the discretion to the Court to allow a defendant to pay the deficiency in court-fee at any stage and on such permission being granted and the fee being paid it will be deemed as if the fee had been paid in the first instance.

9. This is, therefore, a case where a discretion conferred by the law had to be exercised. The learned District Judge did exercise the discretion and the same has been upheld by the High Court. This Court does not normally interfere with such exercise and there is no extraordinary reason in the present case which could persuade us to grant leave to appeal. The petition) is therefore dismissed.