Malik ALLAH DAD deceased through his legal representatives and others vs YASIN and another
This appeal arises from a suit for pre-emption where the plaintiff challenged the dismissal of his Regular Second Appeal by the High Court regarding the payment of court-fee. The core legal question was whether the appellate court correctly rejected the plaint under Order 7, Rule 11 of the Code of Civil Procedure 1908 due to non-payment of court-fee, despite the trial court failing to determine the exact deficiency or order the plaintiff to supply the requisite amount. The Supreme Court held that the impugned judgments were unsustainable. Relying on the precedent set in Siddique Khan (PLD 1984 SC 289), the Court ruled that the penal provisions of Order 7, Rule 11 cannot be invoked unless the court has first determined the exact amount of court-fee deficiency and provided the plaintiff with a mandatory opportunity to deposit the amount. Consequently, the Court set aside the lower appellate court's judgment and remanded the case for a fresh decision on merits, establishing that a court must explicitly determine the deficiency and grant a mandatory chance for compliance before rejecting a plaint for insufficient court-fee.
- Can a court reject a plaint under Order 7, Rule 11 of the Code of Civil Procedure 1908 for non-payment of court-fee without first determining the exact amount of deficiency?
- Is a plaintiff entitled to a mandatory opportunity to deposit court-fee after the court determines the deficiency?
- Does the failure of a trial court to order the supply of court-fee preclude an appellate court from rejecting the plaint on that ground?
- Order VII Rule 11, Code of Civil Procedure 1908
1. ' MUHAMMAD AFZAL ZULLAH, C.J.---This appeal through leave of the Court by the plaintiff in a suit for pre-emption is directed against the judgment of the High Court; whereby his Regular Second Appeal was dismissed on consideration of questions relatable to payment of court-fee. Leave to appeal was granted to examine the validity of the impugned judgment in the light of the judgment of this Court in the case of Siddique Khan PLD 1984 SC 289. In this round the suit was decreed by the trial Court but the respondents' appeal was accepted on the ground that "there was no legal hitch for the respondent (the appellant (?) institution of the present suit or afterwards by the time which the Court had given to him but he failed to comply with the direction of the Court without any reasonable excuse". Admittedly no order was passed by the trial Court to supply the court-fee, after making determination of the amount of court-fee which, as was held in the case of Siddique Khan, was essential for the application of the penal provisions contained in Order 7, Rule 11, C.P.C.; whereunder the appellate Court rejected the appellant's plaint.
2. ' On appellant's R.SA. a learned Judge in the High Court relying on two cases; one of 1961 of Bughdad-ul-Jadid and the other of 1949 from Lahore upheld the appellate judgment. The view taken by the learned appellate Courts, as held in the case of Siddique Khan was not sustainable.
3. Appellant was, as ruled therein entitled to at least one mandatory chance for deposit of court-fee after the exact amount of deficiency had been determined by the Court. This requirement of law not having been observed the impugned judgments are set aside. The case is remanded to the first appellate Court for hearing the appeal afresh on merits. There shall be no order as to costs.