IMTIAZ vs Mst. SHAGUFTA
This civil revision arises out of an appellate order passed by the District Judge, Mardan, dismissing two appeals filed by the petitioner against decrees for maintenance and recovery of dowry articles granted in favour of his wife. The core legal question was whether the lower appellate court was justified in dismissing the appeals due to the non-payment of court-fee despite specific directions and warnings given to the appellant, and whether the adjournment of the case via a reader's note upon the presiding officer's absence vitiated the subsequent dismissal. The Peshawar High Court held that the petitioner was fully aware of the requisite court-fee and had been duly warned, and that adjournments handled by ministerial officers during the presiding officer's absence are valid under procedural law. The court concluded that the dismissal of the appeals for non-payment of court-fee was lawful and dismissed the civil revisions in limine. The key principle laid down is that an appellant cannot challenge the dismissal of an appeal for non-payment of court-fee on the grounds of lack of quantification when adequate notice and warning were given by the court.
- Whether an appellate court can dismiss an appeal for non-payment of court-fee after giving due warning and time to the appellant?
- Does an adjournment granted through a reader's note during the absence of the presiding officer render subsequent proceedings invalid?
- Can an appellant claim lack of knowledge regarding the exact amount of court-fee when they failed to seek clarification despite court directions?
- Order XVII Rule 5, Code of Civil Procedure 1908
' Civil Revision No,274 and Civil Revision No,275 of 2001 are disposed .Of by this single judgment as they arise out of similar orders passed on 5-5-2001 by the District Judge, Mardan in two separate Appeals Nos.14/FC and 15/FC. Appeal No,14/FC was filed by the petitioner Imfiaz against the order of the Judge, Family Court, dated 12-9-1998 by which the suit of Mst. Shagufta wife of the petitioner was decreed to the extent of payment of maintenance to the wife from the institution. Of the suit till the expiry of lddat period at the rate of Rs,500 and the same amount of maintenance to the child till attainment of the age of majority. The wife was also granted a decree for dissolution of marriage, which of course was not challenged in appeal. In the present petition the minor child Muhammad Taimoor has also not been made as respondent and it was stated at the Bar that the petitioner has no objection to the payment of maintenance to the child. Appeal No,15/FC was filed against the judgment and decree of the Judge, Family Court, dated 19-5-2000 whereby the wife's suit for recovery of dowry articles valuing Rs,63,426 was decreed. Both the appeals were dismissed by the impugned order on the ground of non-payment of court-fee in accordance with the direction of the Court.
2 . The learned, counsel appearing for the petitioner contended that the Court had not calculated the court-fee that was to be deposited by the petitioner and, therefore, the appeal could not have been dismissed on failure of payment of court-fee. He further argued that it was on Reader's note that the case was adjourned to the dates on which the 2ppeals were dismissed and, therefore, on that score too the dismissal could not have been made.
3. The respondent wife had been granted maintenance for a period of just over two years at the rate of Rs,500 per month, and recovery of dowry articles, in lieu thereof recovery of Rs,63,426. The total amount would thus come to just over Rs,76,000. The petitioner is essentially aggrieved of this amount.
4. According to the order-sheets of 3-3-2001, in both the case the Appellate Court stated that on the previous date the point of deposit of court-fee was discussed and the appellant was directed to deposit the court-fee but the same had not been deposited. The appellant was further warned that in case the court-fee is not deposited before the next date, the appeal would be rejected on that ground alone. The case was adjourned to 14-4-2001 by which date the court-fee should have been deposited, but was not deposited even by the following date of 5-5-2001 when the case was dismissed on account of non-deposit of the court-fee. From the order-sheets, it is clear that the appellant was in no doubt as to the amount of court-fee that he had to deposit, otherwise on 3-3- 2001 he should have got the same cleared from the Court. Nor indeed is the petitioner's case now that he did not know as to how much court-fee the petitioner had to deposit. The petitioner, therefore, cannot make this as a ground for setting aside the impugned orders when he apparently knew as to what amount of court-fee was to be deposited.
5. As regards the objection that the case was adjourned to 5-5-2001 on Note Reader, reference may be made to Order XVII, rule 5, C.P.C., which provides that when a Presiding Officer is absent on a date in the proceedings of a suit and the ministerial officer of the Court hands over to the parties slips of papers specifying the date for the proceedings in the suit, the Court shall then conduct the same proceedings on the adjourned date as schedule on the day the Presiding Officer was absent.
In the order of 14-4-2001, the Reader had specifically stated "parties alongwith their counsel present. Presiding Officer is on casual leave. So, put up on 5-5-2001 for previous proceedings". Thus, on 5-5-2001, the Court had conducted the same proceedings for which the case was adjourned on B 3-3-2001, that is, depositing of the court-fee. The second objection of the learned counsel for the petitioner is to, therefore, of no substance.
6. In view of the above, the civil revisions do not deserve to be admitted to full hearing. Both are, therefore, dismissed in limine with the civil miscellaneous application.
Cited by 4 cases
- ABDUL SATTAR vs ZARAI TARAQIATI BANK LTD and 4 others 2015 CLD 1338
- Mst. HABIBA BEGUM vs Haji IQBAL-UD-DIN through Legal Heirs and 4 others 2012 PLJ Peshawar 209, 2012 MLD 1786
- Mst. GOHAR TAJA vs SAJID And Others 2003 YLR 1994
- Mst. HABIBA BEGUM vs Haji IQBAL-UD-DIN (deceased) through his Legal 2012 PLJ Peshawar 209