' MIAN HAMID FAROOQ, J.---The petitioner filed the "application for pauper suit through specific performance of agreement dated 12-4-1993", against the respondent, inter alia pleading that the parties on 12-4-1993 entered into an agreement to sell in respect of suit house for consideration of Rs,1,40,000; the total consideration amount was received by the respondent and the possession was delivered to the petitioner, however, subsequently the respondent refused to execute sale deed, which necessitated the suit. The learned trial Court after receipt of the report from the District Collector, Sheikhupura, accepted petitioner's application and she was allowed to sue as pauper.
The respondent also filed the suit .For cancellation of the said agreement against the petitioner.
Both the parties contested each others suits through written statements. Both the suits were consolidated. The learned trial Court framed the consolidated issues, recorded the evidence of the parties and in the ultimate analysis, dismissed petitioner's suit for specific performance of agreement and decreed respondent's suit for cancellation of agreement, vide consolidated judgment and decree dated 20-12-2000. The petitioner challenged the said decree through the appeal, before the learned District Judge, however, did not affix any amount of court-fee on the memorandum of appeal. The appeal was admitted to regular hearing and notices were issued to the respondent on 26-12-2000 without noticing that the court-fee was not paid. During the pendency of appeal, the petitioner filed an application under Order XLI Rule 27 C.P.C. For permission to lead additional evidence, but it was rejected by the learned Additional District Judge, vide order dated 13-4-2001. Subsequently, on 29-5-2001, the learned Additional District Judge, after noticing that no court fee had been paid, called upon the learned counsel for the, parties to argue as to whether the court-fee on Rs,1,40,000 is to be levied or not. It appears that subsequently the petitioner filed a miscellaneous application for exemption of court-fee. After hearing the learned counsel of the parties, the learned Additional District Judge, in the ultimate analysis, dismissed petitioner's application for exemption of court-fee and the appeal through the impugned single judgment dated 10-7-2001, hence the present revision petition.
2. Learned counsel for the petitioner contends that the learned Additional District Judge after dismissal of petitioner's application for exemption to pay court-fee was obliged under the law to provide at least one opportunity to the petitioner to affix the court-fee, but the learned Additional District Judge dismissed petitioner's application and the appeal simultaneously, which course of action is not recognized under the law. Conversely the learned counsel for the respondent has stated that during the pendency of the appeal, the petitioner was provided numerous opportunities to pay the court-fee, however, her conduct was contumacious and thus the impugned judgment does not call for any interference by this Court.
3. The only controversy involved in the present petition is as to whether the petitioner was ever called upon or directed by the learned appellate Court to pay the court-fee on memorandum of appeal. Upon the examination of the impugned judgment, I find that the learned Additional District Judge dismissed petitioner's application for exemption to pay the court-fee and the appeal simultaneously through one judgment, in which the petitioner was not directed to pay the court- fee. Thus, it is evident that the petitioner was not provided any opportunity by the learned appellate Court to pay the amount of court-fee. I have also examined interim orders ranging from 26-12- 2000 (on which date the appeal was admitted) to 10-1-2007 (when the appeal was decided) with the assistance of the learned counsel. None of the order shows that the learned appellate Court ever directed the petitioner or provided him even a single opportunity to affix the court-fee on the memorandum of appeal. To my mind, when petitioner's -application for exemption to pay court- fee was dismissed, at that point of time, the learned appellate Court should have provided, at least, one opportunity to the petitioner to pay the court-fee and if still she does not pay the court-fee, her appeal could have been dismissed. However, in the instant case, no such opportunity was granted to the petitioner and the learned Additional District Judge, while dismissing her application, abruptly dismissed the appeal through single order without realizing that he acted in exercise of his jurisdiction illegally. It is settled law that a cause cannot be dismissed on the ground of nonpayment of court-fee until a opportunity is A provided to party concerned to affix or make up the deficiency of court-fee. The impugned judgment is not sustainable in law.
4. In the above perspective, I have examined the impugned judgment and find that it, to the extent of dismissal of petitioner's application for exemption of court-fee, does not call for any interference by this court, however, the judgment regarding dismissal of the appeal is not sustainable in law and thus I am persuaded to set aside latter part of the judgment.
5. In view of the above, the present petition is decided in the following manner:-
(i) The present petition is partly allowed.
(ii) Impugned judgment dated, 10-7-2001, to the extent of dismissal of petitioner's appeal, is set aside.
(iii) Consequently, petitioner's appeal shall be deemed to be pending before the learned District Judge Sheikhupura, before whom the parties shall appear on 10-10-2007.
(iv) The learned District Judge shall determine the amount of court-fee payable on the memorandum of appeal and provide an opportunity to the petitioner directing her to affix the court-fee on the memorandum of appeal within a period of one month from 10-10-2007.
(v) If the petitioner, despite providing opportunity, as noted above, does not pay the court-fee, her appeal shall be deemed to be dismissed.
(vi) If the petitioner affixes the amount of court-fee within the stipulated period, the learned District Judge shall himself decide the appeal on merits, after hearing the parties and of course in accordance with law within a period of three months from the date of payment of court-fee.
(vii) No order as to costs.