FATEH MUHAMMAD And Others vs NAZIRAN BIBI And Other
This appeal by leave of the Supreme Court of Pakistan concerns a dispute between rival pre-emptors regarding the dismissal of a Regular Second Appeal by the High Court due to a deficiency in court-fee. The appellants' suit was initially decreed, but the first appellate court set aside this decree on merits. Subsequently, the High Court dismissed the appellants' Second Appeal solely because of an admitted deficiency in the court-fee, without addressing the merits of the case. The core legal question was whether the High Court erred in dismissing the appeal without affording the appellants an opportunity to rectify the court-fee deficiency. Relying on the principle established in the case of Siddique Khan (PLD 1984 SC 289), the Supreme Court held that the High Court should have provided the appellants at least one opportunity to make up the deficiency before applying punitive measures. Consequently, the Supreme Court set aside the High Court's judgment and remanded the case for a decision on the merits, deeming the Second Appeal as pending.
- Is an appellate court required to grant an opportunity to make up a court-fee deficiency before dismissing an appeal?
- Can an appeal be dismissed solely on the ground of deficient court-fee without first allowing the appellant to rectify the defect?
- Does the failure to provide an opportunity to rectify court-fee deficiency warrant the setting aside of an appellate dismissal order?
- Order VII Rule 11, Code of Civil Procedure 1908
1. MUHAMMAD AFZAL ZULLAH, CJ.--This appeal by leave of the Court by the plaintiffs (rival pre- emptors) is directed; against the dismissal by the High Court of their Regular Second Appeal on the examination of the question of deficiency of court-fee.
2. Leave to appeal was granted to consider the affect of the judgment of this Court in the case of Siddique Khan PLD 1984 SC 289 on the present case.
3. The suit of the appellant having been decreed, the respondents' appeal was allowed. The decree of the trial Court was set aside on examination of the merits of the case. The appellants filed an appeal before the High Court which was dismissed on short ground of deficiency in court-fee without examination of the merits of the case.
4. The learned Judge in the High Court observed that a court-fee in the sum of Rs.600 was actually paid on the memorandum of appeal filed before- the learned First Appeal Court. However, the court-fee of Rs.15 only was paid on the memorandum of Second Appeal. "Subsequently on an objection raised by the office the appellant paid further court-fee of the value of Rs.165 thereby leaving a deficiency of Rs.420".
5. After the above stage when the appeal came up for final hearing before the High Court it was conceded by the counsel for the appellants that the court---fee was deficient and the remaining amount still required to be paid. It was noted by the learned Judge that the deficiency had not by then (the date of the impugned order; namely, 18-6-1984), been made up. The explanation of the learned counsel for the appellants was noted that the appellants had not contacted him for doing the needful. The deficiency in the court-fee having been admitted, the learned Judge proceeded to dismiss the appeal simply on account of this reason.
6. As held in the case of Siddique Khan, at the afore-stated stage, instead of dismissing the appeal on account of deficiency in the court-fee the appellants should have been afforded at least one opportunity before applying the punitive provisions contained in Order 7, Rule 11, C.P.C. By reference.
7. No opportunity having thus been afforded is the said manner for the supply of the deficiency of the court-fee, the appeal could not be dismissed on the ground of the deficiency of court-fee.
8. Accordingly, this appeal is allowed. The impugned judgment is set aside and the case is remanded to the High Court for hearing of the appeal from the stage the defect in the proceedings took place.
9. The Second Appeal thus shall be deemed to be pending. There shall be no order as to costs.
Cited by 2 cases
- PAKISTAN RAILWAY EMPLOYEES HOUSING SOCIETY vs Messrs M.A. KHAN & CO. 2005 CLC 1969
- PIR BUX and others vs GHULAM RASOOL and others 1997 PLD Karachi 113