NOOR MUHAMMAD Versus MUHAMMAD SHARIF

1. MUHAMMAD AFZAL ZULLAH, J.‑ ‑These two appeals through leave to this Court arising out of two separate civil matters, involve the same question of law.

2. In both the cases, the appellants had filed appeals before the District Court against the judgment and decree/order passed by the learned Trial Court/Forum. The 1st appellate Courts dismissed the appeals on the ground of deficiency of court‑fee paid in appeal/s The second appeals filed before the High Court were dismissed on the same ground.

3. Leave to appeal was granted to examine the validity of the impugned judgments of the High Court regarding deficiency in payment of court‑fee. The legal controversy has since been resolved by the judgment of this Court in case of Siddique Khan and others v. Abdul Shakur Khan and another P L D 1984 S C 289 which goes against the view taken by the High Court, affirming the view taken by the 1st Appellate Court. Therefore, both the appeals merit to be allowed.

4. Learned counsel for the respondents in C.A. No.443 of 1980, however, contended that one of respondents having died his legal representatives were not brought on the record in time; that the conduct of the appellant side in that case was contumacious; and that the appellant side took undue advantage of a stay order. Relief in appeal cannot be denied at this stage of final adjudication on the 1st kind the last points. Regarding one, it needs to be observed that the case being of a period after the amendment of 1972 in Civil Procedure Code, the death of one or the other party in the circumstances would not deprive the concerned party/s of the relevant benefit in appeal. The principle underlying the amendment in the Civil Procedure Code in this behalf would ordinarily be applied to similar situations in the Supreme Court. And no extra feature in this respect has pointed out , so as to depart from this rule in this case.

5. Regarding the undue advantage of the stay order the relief on final adjudication of appeal cannot be withheld. If at all the deliquent party could have been proceeded against at proper time for disobedience of the stay order, if there was any.

6. The remaining point regarding contumacious conduct of the appellant concerned, suffices it to observe that even if the facts mentioned by the learned counsel in this behalf are accepted as correct, he admitted that no order for supply of deficient court‑fee, after determining the amount of deficiency and fixing the date toe" supply thereof, was passed by the learned 1st appellate Court. That being so, one of the important conditions laid down in the case of Siddique Khan not having been satisfied, the appellant cannot be denied the due benefit in that behalf.

7. In the light of foregoing discussion, both the appeals are allowed‑‑Civil Appeal No.443 of 1980 with costs. No order as to costs has been passed in other Appeal No.543 of 1980 as respondent has not contested it.

8. Impugned judgments in both the appeals are set aside and the cases are remanded to the respective 1st Appellate Courts (District, Judge concerned) for disposal in these cases as if, they are still pending before them, in accordance with the law.

9. M.Y.H./N‑92/S Cases remanded.