GHULAM HUSSAIN Versus IMAM BAKHSH

Appeal filed by the petitioners in the District Court, against a declaratory decree passed against them, has been dismissed by a learned Additional District Judge for the reasons, firstly that in the memorandum of appeal it had been indicated that the appeal was filed against the trial Court's order and judgment and the expression 'decree' had not been used therein to make it tenable under Order XLI, rule 1 of the C.P.C. read with section 96 thereof and, secondly, that the copy of the trial Court's decree accompanying the memorandum of appeal did not bear the requisite court‑fee of Rs.2 and had instead been stamped with a court‑fee worth Re.l only whereby the appeal stood invalidated, as had been held in Muhammad Fazal Elahi v. Ram Lal and another AIR 1935 Lah. 124‑2 and according to Muhammad Zaman v. Yaseen N L R 1980 Civil Lah. 256 appellate Court did not have the power to proceed with such an improperly instituted appeal. The defendants have now come up to this Court on revision.

2. Learned counsel argues that the objections which have prevailed with the learned Additional District Judge are not only not substantial but are also mutually destructive in so far as a copy of the trial Court's decree had in fact been filed with the memorandum of appeal, as required by rule 1 of the Order XLI of the C.P.C. and mere omission of its mention in the memorandum to therein use the inapt expression 'order' could not detract from the fact that the appeal had been filed against the decree. As regards the deficiency of court‑fee on the copy of the decree, it is submitted that the proposition propounded before the learned Additional District Judge was, no doubt, supported by the precedent case cited before him but he has erred in acting in oblivision of the discretion conferred on him by section 149 of the C.P.C. to allow the deficient court‑fee to be paid within the time to be fixed but since he had not considered the desirability of exercising this discretion, therefore, his judgment is rendered unsustainable in law.

3. Learned counsel for respondents has candidly expressed his inability to support the impugned judgment and submits that even though the case may well become liable to 'be decided here finally upon setting aside the judgment of the appellate Court, yet, it may, instead, be remanded to the appellate Court for disposal in accordance with law so that the aggrieved party may not be deprived of .a remedy to become available to it in law:

4. There is considerable force in the contentions of the learned counsel for petitioners and there is no doubt that the requirements of rule 1 of Order XLI of the C.P.C. had been duly complied with in filing the appeal below which could not have been invalidated by mere omission of mention that it had been filed against the decree where against alone it could have been legally maintained and not merely against the judgment. Similarly, appellate judgment cannot be sustained on account of the failure of the learned Judge below to consider whether or not he may have exercised his discretion to allow the deficiency in court‑fee on the copy of the decree to be made good. He may, of course, have refused to allow payment of deficient court‑fee for the reasons to be stated by him but he could not have omitted to at all attend to this aspect of the matter.

5. Saeed Ahmad v. Messrs Indo Enamel Works Ltd., Lahore P L D 954 Lah. 490 a Full Bench of this Court has held:‑

"When a Court possesses a discretion, it is its duty to consider whether or not to exercise the discretion."

Again, in Dhunda v. The Punjab Province (now Province of West Pakistan) P L D 1960 (W.P.) Lah. 786, it was held:‑

"In cases where a discretion vests in the Court but the order does not show and there are otherwise no grounds for presuming that the Judge who passed the order was conscious of the discretion and that he actually exercised the discretion, the High Court may set aside the order. It is the right of a party that the Judge who exercises powers in his case should be conscious of the extent of those powers. If he is not conscious of all the powers he has, then that is tentamount to a misconception of his powers and his order is liable to be set aside. "

6. Since, in this case there is no ground to presume that learned appellate Judge may have been conscious of the discretion and there does not appear any reason why the shortfall of Re.l may not have been condoned, therefore, in exercise of the said discretion with deference to section 107(2) of the C.P.C. petitioners are allowed two on the' time to pay deficient court‑fee on the copy of the trial Courts' decree filed in the appeal below.

7. In result, this Civil Revision is allowed and setting aside the order, dated 5‑6‑1984, appeal of the petitioners is remitted to the learned District Judge, Leiah, for its being heard and decided in 1 accordance with law after the appellants therein have made up the said deficiency in court‑fee. There is no order as to costs.

8. Parties have been directed to put in appearance in the Court of the learned District Judge, Leiah on 22‑3‑1986.

A.A. Revision allowed.