Habib Akbar Vs Pir Azam Syed

.Judgment Sheet

IN THE PESHAWAR HIGH COURT, ABBOTTABAD BENCH

JUDICIAL DEPARTMENT

Civil Revision No. 198-A/2008.

JUDGMENT

Date of hearing.....................31.08.2016..............................................

Petitioner_________________________________________________________ Respondents. ___________________________________________________ IKRAMULLAH KHAN, J.- Through this single judgment, I intend to dispose of this and the connected C.R.No. 199- A/2008 titled “Razal-e-Rabbi & 02 others Vs. Pir Azam Syed & 23 others” being the outcome of the same consolidated impugned judgment dated 10.07.2008 rendered by the learned Additional District Judge Mansehra at Oghi whereby every two set of appeals bearing No. 06/13 of 3004 and 07/13 of 2007 were dismissed on account of non-affixation of court fee on the memorandum of appeals.

2.Both the learned counsel confined their arguments before this court only to the legal proposition arising out therefrom the dismissal of appeals.

3.Learned counsel for the petitioners in both the petitions contended that the impugned judgment is against law as the learned first appellate court below was required under the provision contained in clause (c) of Rule 11 of Order VII CPC,

to pass direction for supply of the requisite stamp paper within a prescribed period but the learned appellate court has not complied with the provision of Rule 11 (c) of Order VII CPC, the impugned judgment is without jurisdiction.

4.On the other hand, learned counsel for the respondents argued that the impugned judgment is proper appreciation of law in this regard and no appeal shall be processed and entertained without affixation of court fee on memorandum of appeal thereof, while, without affixation of court fee thereof, the period of limitation shall run against the appellant therein till affixation of the court fee and no time could be extended or condoned in term of Section 5 of the Limitation Act or Section 149 CPC, to the appellant to take away right of respondents to maintain a time barred appeal.

5.I have heard learned counsel for the parties in light of law and facts on record.

6.The record reveals that the petitioners had filed their two appeals against the impugned judgment of learned Civil Judge Oghi dated 07.04.2004 before the learned first appellate court on 23.04.2004 within the prescribed period of limitation which were admitted by the learned appellate court for hearing, giving notices to the respondents, which remained pending adjudication till 10.07.2008.

7.I have to give reference herewith to decide the legal proposition that whether the appeal could be termed as time barred on account of non-affixation of the required court fee.

8.The procedure for filing of an appeal before an appellate court is regulated under Order 41 CPC. Rule 1 of Order 41, prescribes the form of appeal and the relevant documents to be annexed therewith.

9.Rule 3 of the Order 41 CPC confers power and jurisdiction upon the appellate court to reject an appeal before it to be admitted for hearing or to return the same to amend, which reads as: -

3.- (1) Where the memorandum of appeal is not drawn up in the manner hereinbefore prescribed, it may be rejected, or be returned to the appellant for the purpose of being amended within a time to be fixed by the Court or be amended then and there.

(2)Where the Court rejects any memorandum it shall record the reasons for such rejection.

(3)Where a memorandum of appeal is amended, the Judge, or such officer as he appoints in this behalf, shall sign or initial the amendment.”

10.But, if a memorandum of appeal was found to be complete in all respect, then in terms of Rule 9 of the same order, it has to be admitted, which reads as: -

9.- (1) Where a memorandum of appeal is admitted, the Appellate Court or the proper officer of that Court shall endorse thereon the date of presentation, and shall register the appeal in a book o be kept for the purpose.

2)Such book shall be called the Register of Appeals.

11.If the appellate court did not dismiss the same in terms of Rule II of Order 41 CPC then, the court has to fix date for hearing in terms of Rule 12 which reads as: -

12.- (1) Unless the Appellate Court dismisses the appeal under rule 11, it shall fix a day for hearing the appeal.

(2)Such day shall be fixed with reference to the current business of the Court, the place of residence of the respondent and the time necessary for the service of the notice of appeal so as to allow the respondent sufficient time to appear and answer the appeal on such day.

12.It is established principle of law that no one could be punished for any act of the court. If the appellant has not acted with malafide intention while filing appeal, thus, thereafter

admission of appeal, the same could not be dismissed on account of non-affixation of court fee, on the point of limitation.

13.The other proposition of law is that whether appellate court has to apply the provision of order VII Rule 7 CPC to appeal by making direction to supply deficiency in court fee, within a prescribed period or has to reject the same at any stage without affording opportunity to remove the deficiency in the court fee.

14.This debated proposition of law has already been resolved by the Apex Court once for all, thereby declaring that the same shall be applied to appeals also in terms of Section 107 CPC, in the case titled “Siddique Khan & 02 others Vs.

Abdul Shakur Khan & another” PLD 1984 SC 289) where it is held as under: -

The two subsections of section 107 relate to separate aspects of the exercise of appellate jurisdiction. Subsection (1) relates to specified actions of somewhat final character relating to the decision in the appeal while subsection (2) relates to powers and duties in a general sense which will also include purely procedural matters. It is necessary to co-relate and read this provision with Older XLI, rule 3 because the later also provides the procedure regarding initial stage of the proceedings in the appeal. The restricted view is that Order XLI, rule 3 is

exhaustive of the powers regarding rejection of an appeal on a procedural question and that the provisions contained in subsection (2) of section 107 would not cover this procedural aspect of the appeal.”

15.Apart from the abovementioned principle of law, enumerated by the Apex Court, Sections 148 and 149 CPC have invested the court with the jurisdiction to make up deficiency of court fee which reads as under: -

148.Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code the Court may, in its discretion, from time to, time, enlarge such period, even though the period originally fixed or granted may have expired.

149.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 is payable, to pay the whole or part, as the case may be, of such court-fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance.”

16.No doubt, Sections 4 & 5 of the Court Fee Act, 1870 has placed explicit bar on institution or receiving in any court any document chargeable with court fee unless, proper court fee has been affixed thereon, but Section 149 CPC is an exception to the said rules.

17.In case of filing any appeal, which was deficit in court fee, it is the duties of the court and its functionaries to scrutinize the memorandum in terms of Rule 1 Order 41 CPC read with Sections 4 & 6 of the Court Fee Act, 1870, to ascertain whether the memorandum of appeal was properly stamped. So, once an appeal is admitted without objection or direction as envisaged thereunder Rule 3 of Order 41 CPC, it could not be rejected later on, on the ground of deficiency in court fee, however, the appellate court has to determine either on application of the appellant or itself whether a case is made out for the extension of time either under Section 149 CPC or under Sections 12 & 28 of the Court Fee Act, 1870.

18.As both the appeals filed by the petitioners were dismissed by learned appellate court without application of the provision contained in Order 7 Rule 11 (c) CPC, it could not maintained.

19.For what has been discussed, this and the connected civil revision are allowed. The impugned judgment is set-aside and the case is remanded back to the learned appellate court

with direction to decide these appeals afresh, after supplying the requisite court fee within thirty (30) days by the petitioners.

Announced:

JUDGE

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