MUKHI CHATROMAL Versus KHUBCHAND

1. MUHAMMAD AFZAL ZULLAH, CJ: ‑‑In this appeal through leave of the Court the only question involved is regarding the delay in paying the court‑fee in an Intra‑Court Appeal filed before the High Court. As stated by the learned counsel for the appellants there is no dispute about the payment of court‑fee in so far as trial stage is concerned. The suit was tried on the original side of the High Court. In appeal the appellants first tried to seek an order for the admission of the appeal as forma pauperis. However, subsequently without much contest the appellants paid the entire court‑fee. There is no contest on this aspect of the matter either. The High Court taking a strict view of the matter treating the case as one under section 149, C.P.C. for a discretionary relief, dismissed the appeal on the finding that the conduct of the appellants' side was contumacious and that the delay in supplying the deficient court‑fee could not be condoned after the expiry of period of limitation. Leave to appeal was granted to examine the effect of the judgments of this Court including Mst. Zainab v. Naeem Ahmad 1987 SCMR 1883 and Ch. Nazir Ahmad v. Abdul Karim PLD 1990 SC 42.

2. Learned counsel for the appellants has, relying on the case of Siddique Khan v. Abdul Shakur Khan PLD 1984 SC 289 at 320, contended that the Court having failed to specify the date and the exact amount of court-fee to be deposited, the appeal could not be dismissed on the ground of deficiency of the court‑fee nor on the ground of limitation. He also relied on the two cases noticed in the leave grant order as well as several other cases in which the judgment in the case of Siddique Khan has been relied upon. He particularly invited our attention to the observation made in the case of Ch. Nazir Ahmad wherein it was reiterated that in such like cases the defect stands cured not from the date of correction of the wrong order passed by the Court nor from the date of the ultimate payment of the court‑fee but from the date the suit/appeal was originally filed in the Court; so was also held in the case of Siddique Khan.

3. The learned counsel for the respondents has produced before us a copy of the proceedings in the Court and tried to argue that although without specifying the exact amount of deficient court‑fee the act of the Court by adjourning the appeal for supply of the deficiency should be treated as sufficient compliance with the requirements of law as held in the aforenoticed cases. When it was pointed out to him that neither a date was fixed within or by which the court‑fee was to be supplied nor the amount was specified, therefore, the requirements of law were not satisfied. That being so, no penal action could be taken against the appellants by way of dismissing the appeal ‑ whether on account of delayed payment of court‑fee or on account of bar of limitation.

4. In the light of the foregoing discussion this appeal is allowed, the impugned judgment is set aside and the case is remanded to the High Court for the hearing of the appeal on merits. There shall be no order as the costs.

5. AA./M‑1741/S Case remanded.