SAKHI MUHAMMAD And 9 Other vs HAKIM ALI And 14 Other

1. MUHAMMAD AFZAL ZULLAH, CJ.---This appeal through leave of the Court arising out of a civil dispute is at present stage confined only to the question; whether, the R.S.A. Dismissed by the High Court due to deficiency of court-fee could be so dismissed. Leave grant order reads as follows:- "Petitioners seek leave to appeal against the order of a learned Judge of the Lahore High Court, dated 17-3-1991 whereby their R.SA. No.271 of 1975 was dismissed on the ground of deficiency in the payment of the court-fee, notwithstanding that, that had been made up with the permission of the Court subject to exception. The petitioners seek leave to appeal.

2. Learned counsel for the petitioners placed reliance on Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289 and Shahrah v. Allah Dad and 3 others 1.991 SCMR 221."

3. The appellants' suit for possession was decreed. The appeal filed by respondent No.l was allowed by the District Court. The present appellants' Regular Second Appeal stood dismissed in the High Court on account of the rejection of the memo. Thereof for the reason that proper court-fee had not been paid in the High Court. With respect, the view of the learned Judge in the High Court regarding the understanding of the rule and the principles laid down in the case of Siddique Khan is not correct. It is a lengthy judgment and undoubtedly takes time to take into account, all the matters which were dealt with.

4. Many of the technicalities which were being then followed, as has been done in the impugned judgment now stand, nullified. The same comment would apply to the view expressed in the impugned judgment that the same case was not attracted, to the High Court and that it only applied to other Courts. All the Honourable Judges of the High Courts have been following it since then. There was no need for the learned Judge to make this distinction for himself; and ignore this Court's verdict in Siddique Khan's case: The result is that Order VII, Rule 11(b) and (c), C.P.C. Applies to plaints as also to the memorandum of appeals quoted in the grounds of the appellants. This Court, since the case of Siddique Khan, has in innumerable situations, applied the principles thereof. In Muhammad Hanif v. Muhammad PLD 1990 SC 859 it was ruled that the office of the Court represents the Court and no party should suffer because of its wrong act/objection so long as the harm to the litigants can be prevented.

5. On factual side it is admitted position that the office of the High Court had not specified exact amount nor complied with Order VII Rule 11. That being so the rule laid down in the case of Siddique Khan had not been satisfied. For this reason which was again highlighted in the case of Muhammad Hanif and those decided earlier/later, the impugned judgment merits to be set aside.

6. After hearing both the learned counsel and further noticing that the learned counsel for the respondent also was unable to support the view taken by the learned Judge in the High Court, we have no alternative but to allow this appeal, set aside the impugned judgment and remand the case to the High Court for fresh decision on questions other than court-fee and its so-called short or late payment or other questions including the limitations relating to court-fee.