Tehsil Municipal Officer, Serai Naurang Vs Suleman Shah & others

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IN THE PESHAWAR HIGH COURT,

BAI\NU BENCH

(Judicial DePartment) C.R No.72'812023.

Tehsil Municipal Officer Serai Naurang Vs n Suleman Shah & others.

v JADGEMENT/ORDER.

Date of hearing 27.11.2023.

Petitioner(s) by: Mr. Aman Ullah Jan Khattak, Advocate.

Respondent (s) by: Haji Habib ur Rehman, Advocate.

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FAZAL SUBHAN, f.- This judgment is directed to decide the instant Civil Revision as well as connected Civil Revision No.73-Bl2023 and Civil Revision No.74-Bl2023, filed under section 115 of the Code of Civil Procedure, 1908, as common question of law and facts are involved

a 2 Facts, in brief are that the respondents of these petitions earlier instituted three separate suits for declaration and permanent injunction to the effect that they are the employees of TMA, Serai Naurang and the respondents are inclined to terminate their services malafidely on political grounds, which acts of the petitioners/defendants are illegal and ineffective upon their rights. In addition, a decree for permanent injunction is sought restraining them from acting on a fictituious letter No.8l5-82 dated 29.9.2011, whereby their salaries were stopped illegally since August 201I, hence the

petitioners/defendants were to be directed to release their salaries

3 After filing the suit, the petitioners contested the same by filing written statements and after full-fledged trial, suits of the respondents/plaintiffs were dismissed. Aggrieved from the said judgments and orders, the respondents/plaintiffs preferred three separate appeals No.86/13,87113 and 88/13 of the year 2015 and after hearing both sides, the appeals were accepted and their suits were decreed with the directions to pay requisite Court fee per value of their plaint within 30 days.

Aggrieved from the judgments and decrees of the learned appellate Court, the petitioners/respondents preferred revision petitions before this Court which were dismissed vide judgment dated 13.02.2019.

4 Thereafter the respondents filed execution a petitions and after attendance the petitioners objected to the execution petitions for non-affixation of Court fee and after reply to the said objection petitions the learned executing Court enlarge the time period for deposit of Court fee for 3 days vide order dated 20.10.2022. The said order was challenged in appeal by the petitioners but the same was also dismissed, thereby giving rise to these civil revisions.

5 Arguments of learned counsel for the parties heard and record gone through

6 It may not be out of place to mention that the purpose for promulgation of the Court Fees Act, 1870 is nothing but to collect revenue for the State, but it cannot be used as a tool to technically knockout a legitimate and genuine litigant or to deprive him of the fruits of his protracted litigations. The Code of Civil Procedure, 1908 gives ample discretionary powers to the courts for allowing a person to make good the deficiency of Court fee payable in the suit. The relevant provision is reproduced herein below for the sake of convenlence:-

"Section 149.---Power to make up deficiency of court-fees.---Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to Court-fees has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such Court-fee; and upon such payment the document, in a respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance.')

The law relating to payment of Court fee and allowing an opportunity to the decree holder has been elaborated by the superior courts from time to time. In the case of Tehseen Ullah-Vs-Usman Khan, reported in 2005 CLC Peshawar P.312, it has been held that:-

Court-fees Act is to be construed strictly in favour of the subject for the reason that the Court-Fees is secured for the benefit of State and not to arm a litigant with the weapon of technicality to harass his opponent.

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The most celebrated judgment on the subject is in the case of Siddique Khan and 2 others-Vs-Abdul Shakur Khan and another, reported in PLD 1984 Supreme Court P-289 wherein it was held that:-

"It is also appropriate here to state the well- accepted rule about Courts' attitude towards the collection of court-fee as agent of State. It is to the effect that the Coun Fees Act like the other fiscal statutes is to be construed strictly and in favour of the subject; and that it was passed with the object of securing revenue for the benefit of the State and not to arm a litigant with a weapon of technicality to harass his opponent-See Rachappa Subruo v. Shidappa Venkatrao (7), Muhammad Sharif v. Mst. Natho (8) and Sharaf Faridi v. M. S. Shahani (e).

One more conclusion that can be drawn from the foregoing discussion is that the failure to supply proper court-fee in the context of the Court Fees Act and section 149 and Order VII, rule 1l (c) can at best be equated with non a prosecution and not with non-institution or presentation of the matter/ document nor with the bar of Limitation. Accordingly, considerations in that behalf for exercise of discretion under sections 148 and 149 and the relevant provisions of Court Fees Act should be different from those under section 5 of the Limitation Act, which in any case does not apply to the suits. To apply the latter to the former cannot be justified on any rule of interpretation. This is what was thought as the proper approach by the Lahore Full Bench in the case of Jagat Ram (1938) when discovering the meaning of bona fides from the General Clauses Act rather than applying the Limitation Act. In the light of these additional reasons on this subject the rule laid by this Court in the cases of Mst. Parveen (l 983) and Shahna (1983) is re-affirmed. For all these reasons it is accordingly held that when considering the options for exercise of

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discretion for grant of time for supply of deficiency in the Court fee, considerations relevant to bar of limitation shall not be taken into account.

7 In this view of the matter and while relying on the referred pronouncements, it is held that procuring Court fee on suit is to be construed in favour of the subject i.e. decree holder and time can be enlarged by exercising discretion in favour of the decree holder without reference to limitation and, therefore, the time period extended to the respondents by the executing Court and concurred by the appellate Court cannot be considered illegal or in access of their jurisdiction, hence the impugned judgments being unexceptionable and the instant as well as connected civil revisions being meritless are dismissed.

Announced.

27.tt.2023.

I hsan

JUDGE

Ihsan (S.B) Hon'ble Mr. Justice Fazal Subhan.

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