' SARDAR MUHAMMAD ASLAM, J.--- This judgment shall dispose of Civil Revision No,1888 of 2005 and Writ Petition No,1404 of 2006 as common questions of law and facts are involved.
2. Facts giving rise to this constitutional petition and civil revision are that two civil suits one for specific performance filed by Ahmad Khan against. Ghulam Qadeer Khan, and other for declaration by Mst. Hayat Khatoon against Asif Nasrullah etc. Were filed with the Civil Court. Both were consolidated. Issues were framed and evidence was recorded in suit for specific performance. The learned trial Court dismissed the suit for specific performance while decreeing that of declaration, directing Mst. Hayat Khatoon to pay court-fee worth Rs,15,000 within 30 days of the announcement of judgment, dated 20-12-2004. Ahmad Khan and Asif Nasrullah Khan, filed their respective appeals assailing the judgment and decree of the learned trial Court, while writ petitioners (decree-holders) filed civil revision assailing the order dismissing petition for enlargement of time in deposit of court-fee, directed by the learned trial Court.
3. Learned Appellate Court dismissed both the appeals by its consolidated judgment on 13-6-2005.
Civil revision was also dismissed on 10-6-2005 through an independent order. Asif Nasrullah has filed civil revision challenging the appellate judgment while Ahmad Khan plaintiff in suit for specific performance remained satisfied with the judgment of the Courts below. Decision rendered in revision was assailed in writ petition.
4. Learned counsel for the petitioner in constitutional petition contends that judgment and decree of the Civil Court was not conditional and did not provide any penal consequences in case of non- deposit of court-fee stamp, within stipulated period of 30 days, hence his suit otherwise decreed cannot be dismissed on account of this sheer technicality. He relied on Shah Wali v. Ghulam Din alias Gaman and another PLD 1966 SC 983.
5. Learned counsel for petitioner in civil revision (respondent in writ petition) argued that non- deposit of court-fee stamp within stipulated time will result into dismissal of suit. He submitted that time once fixed cannot be extended by the Court. Relied on Siddique Khan and 2 others v. Abdul Shakoor Khan and others PLD 1984 SC 289, Abdul Quddoos v. Mst. Shabana Parveen and another 1990 MLD 68, Mst. Ghulam Fatima and 3 others v. Talib Hussain and 3 others 1990 MLD 1782, Muhammad Arif v. Additional District and Sessions Judge, Kasur and 2 others 2001 CLC 192, Noor Khan v. Khan Muhammad 2002 CLC 402, Syed Fazar Hussain and others v. Shaban and others PLD 2004 Lah. 577 and Rahim Khan through Legal Heirs v. Habib Khan and another 2004 CLC 1044.
6. In support of civil revision argued that learned Courts below have erred in not applying correct law on the subject, which has occasioned injustice. Respondent in civil revision (also writ petitioner) argued that verdict of Courts below in decreeing suit for declaration was in accord with the well- settled law on the subject as General Attorney, Nasrullah Khan transferred the disputed land in favour of his own minor son without seeking permission from the principal.
7. I have considered the submissions of the learned counsel for the parties and perused the record.
8. Learned trial Court decreed the suit for declaration filed by Mst. Hayat Khatoon against Asif Nasrullah and another etc. Beneficiary of the transaction. Undeniably, Nasrullah was the general attorney. He transferred land in favour of his own minor son without adverting to the principal to seek his permission. Sale, thus, made was in utter violation of law declared in Fida Muhammad v.
Peer Muhammad Khan deceased through Legal Heirs PLD 1985 SC 341, Mst. Shumal Begum v. Mst.
Gulzar Begum and 3 others 1994 SCMR 818 and Haji Faqir Muhammad and others v. Pir Muhammad and another 1997 SCMR 1811 and was rightly struck down. Concurrent judgments and decrees of both the Courts below do not call for any interference in absence of any misreading or non- reading. The civil revision is, thus, dismissed.
9. As far as writ petition is concerned, the petitioner (decree-holder) was directed by the Court to supply court-fee stamp within stipulated period of 30 days from the date of judgment and decree i,e, 20-12-2004. He, however, supplied the court-fee on 20-5-2005 of his own without intervention of the Court.
10. No consequence was provided in the judgment and decree for failure of the petitioner to supply court-fee stamp within stipulated period of time. The matter in regard to recovery of court-fee was between litigant and the exchequer. No prejudice has been caused to the defendant/judgment- debtor, more particularly when amount for supply of court-fee was deposited. Delay in supply of court-fee stamp was neither wilful nor contumacious, and in absence of any condition and consequence, will not frustrate the decree in a case of this nature.
11. Reliance placed by revision petitioner to refuse enlargement of time on the strength of judgments relied upon in para. No,4 are distinguishable and apply to the peculiar facts of the case, therein. A brief survey of the judgments cited is given, hereinafter. Muhammad Arif v. Additional District and Sessions Judge, Kasur and 2 others (supra). A suit for pre-emption was filed.
Application for rejection of plaint under Order VII, rule 11, C.P.C. Was moved. The petitioner was directed to make up deficiency within 15 days. He aggrieved of instituted revision petition, which, too was dismissed. He did not comply the order and filed application for extension of time under section 148, C.P.C. Which was dismissed. Order was assailed in constitutional jurisdiction. It was held that time can be extended if the Court has control over the lis. After its disposal, the Court becomes functus officio. Resultantly, time was not extended.
' In Siddique Khan and 2 others (supra), the Honourable Supreme Court observed that an opportunity be granted to the party for payment of court-fee before taking penal action. It was held that when considering options for exercise of discretion for grant of time for supply of deficiency in Court-fees, considerations relevant to bar of limitation not to be taken into account.
With exception of one all the case relied upon by the revision petitioners relates to pre-emption matters. The Honourable Supreme Court has categorically held in Siddique Khan and others that an opportunity must be granted before applying penal provision under Order VII, rule 11, C.P.C.
' In Noor Khan (supra), the pre-emption suit was decreed directing deposit of pre-emption money by a specific date. Time was extended but on failure to deposit decretal amount the matter went up to the Honourable Supreme Court, which affirmed the order of dismissal. Thereafter, an application for extension of time in deposit of pre-emption money was made which, was not allowed.
' Syed Fazar Hussain and others (supra), was a case of delay in depositing sale price. On failure to deposit pre-emption amount in time, further period was not extended.
' In Abdul Qudoos (supra), the Appellate Court had not granted time for payment of court-fee, which lay in its discretion, the constitutional jurisdiction was not exercised.
' Riaz Ahmad Mansuri (supra), in this case a suit for recovery of damages under fatal accident was decreed subject to deposit of court-fee before a specific date failing which the plaint shall stand rejected. It was in this background that further time was not extended as valuable right has accrued to the bther side.
12. In the case in hand substantial justice has been done. Landed property of illiterate woman was transferred by their attorney to his own minor sons. Supply of court-fee stamp was made by the illiterate, Pardanashin woman within a short span of time, when informed by her counsel. Court Fees Act is not to be interpreted strictly to arm litigant with weapon of technicalities against the opponent to frustrate recovery of revenue for benefit of State.
13. In view of the above discussion, the writ petition succeeds and court-fee stamp supplied by the petitioner on 28-5-2005, will be deemed to be valid.