Mst. SADDIQUNNISA-Paintiff vs Khan Sahib Agha MUHAMMAD SULTAN MIRZA

QADEERUDDIN AHMAD, J.-Mr. S. M. Hassan has raised a preliminary objection that the appeal is barred by time. In support of this objection ha has stated that this appeal was filed to question the judgment and decree of a Single Judge of this Court dated the 16th of April 1964. By that judgment the learned Single Judge had dismissed the suit of the present appellant for the specific performance of a contract to sell immovable property of the value of Rs. 66,000.00. As an alternative to the claim of specific performance a claim for the recover, of Rs. 33,000.00 as damages was also made in that suit.

2. After the dismissal of the suit the appellant filed the present appeal on the 19th of May 1964, stating in it that it was within time and paying a court-fees of Rs. 4.00 on it. The office raised an objection that the appeal was not within time. Where--upon, after more than three months of filing the appeal, an application was made on the 31st of August 1964, for condonation of delay. Counsel for the parties agreed today that the appeal was out of time for 5 days when it was presented.

3. In addition to the objection about limitation, the office also objected to the amount of the court- fees with the result that counsel for the appellant made an endorsement on the memo. Of appeal as follows :- "The appeal is valued at Rs. 10,000.00 only for relief of damages on which proper court-fees is paid."

The above endorsement was made on the 31st of August 1964 and court-fees of an additional amount of Rs. 487.00 was paid on that date.

4. If, for a moment, objection is not taken to the amount of the court-fees and it is presumed that payment of the additional court-fees of Rs. 437.00 on the 31st of August 1964 properly made up the deficiency in the court-fees, then a question arises as to what is its effect on the objection of limitation.

5. It is obvious that a plaint or a memo. Of appeal cannot be treated as properly presented so long as proper court-fee is not paid, therefore, in this case the appeal cannot be taken to have been instituted until tae deficiency was made up on the 31st of August 1964. In other words the appeal was instituted on the 31st of August 1964 and was barred by 103 days.

6. If we look at the application for condonation of delay we find that it is supported by an affidavit in which two pleas were raised. One of them was that the appellant was an old woman and the other was that she was suffering from kidney disorder. Neither of these excuses were adequate for condoning the delay of 103 days, particularly because we find that certified copies were obtained, memorandum of appeal was prepared and presented, In spite of the old age and illness of the appellant. There is additionally a statement in the supporting affidavit of the appellant which makes the position worse. Her son-in-law, who has sworn the affidavit, has stated in para. 6 of that on the 19th of May 1964, he had paid Rs. 2,100.00 towards court-fees to the Advocate. This means that on the date on which the appeal was presented the Advocate had with him Rs. 2,100.00 which was sufficient for paying full court-fees on the valuation of Rs. 66,000.00. There is no explanations as to why he paid a court-fees of Rs. 4.00 only on that date and why he made up the deficiency by paying an additional amount of Rs. 487.00 only. The suggestion made by Mr. S. M. Hassan is that there was no serious intention to do the needful and attempts were being made to use the institution of the appeal as a pressure for making a bargain.

7. The above situation emerges, if it is presumed, as mentioned above, that it was open to the appellant to reduce the value of the appeal from Rs. 66,000.00 to Rs. 10,000.00, but this reduction is also open to serious objection because the claim for specific performance of the contract, was also given up. If no specific performance of the contract is claimed and damages only are demanded then the question arises as to what would be the basis of such a claim. The only possible basis is an allegation of breach of contract. If that is the basis, then the frame of the suit is objectionable in terms of section 42 of the Specific Relief Act, because in accordance with it a consequential relief must be asked for and the consequential relief in this case is the specific performance of the contract and not the recovery of damages.

8. The above discussion would show that the appeal suffers frown many weaknesses and defects for which no explanation has been offered on behalf of the appellant.

9. In conclusion, we dismiss this appeal but keeping in view the fact that the appellant is an old woman, leave the parties to bear their own costs.