' SYED HAMID ALI SHAH, J.---Respondent's suit for possession through pre-emption against the petitioners, was decreed vide judgment and decree, dated 74-2006. The petitioners assailed the decree of pre-emption in appeal. Learned appellate Court, on failure of the petitioners (appellants therein) to affix the court-fee of Rs,13,260 despite opportunities, dismissed the appeal through impugned order, dated 8-5-2007. Hence this petition.
2. It is contended by learned counsel for the petitioners that learned appellate Court has dismissed the appeal on the premises that three opportunities were granted to the petitioners to affix the court-fee, but the opportunity was not availed. Learned counsel added that no opportunity was granted to the petitioners. He went through the order- sheet and submitted that vide order, dated 12-4-2007, learned Court directed respondent/plaintiff to deposit a sum of Rs,13,260 as the court- fee within one month. The petitioners were asked to explain as to why the court-fee of Rs,13,260 had not been affixed. Learned counsel emphasized that seeking explanation from the petitioners/appellants about non-affixation of court-fee, does not mean that they were directed to deposit the court-fee. Additionally, learned counsel for the petitioners/ appellants was busy before another Court and adjournment was granted to the petitioners. Mere adjournment cannot be considered as direction for affixing the court-fee. The case was fixed for 8-5-2007, when learned Court passed the impugned order and dismissed the appeal for non-affixation of court-fee. It is contended that a speaking order was not passed and no specific direction was given to the petitioners/appellants for payment of the court-fee. Learned counsel has vehemently argued that three opportunities were not granted to the petitioners and learned appellate Court has proceeded on erroneous assumptions. While placing reliance on the case of Sardar Ahmad Yar Jang v. Sardar Noor Ahmad Khan (PLD 1994 SC 688), it is contended that two conditions namely the determination of amount of deficient court-fee and a reasonable time to make up the deficiency, are essential requirements, before a penal action is taken in this regard. Learned counsel has submitted that without passing a direction to pay the court-fee after it's determination, the question of rejection of plaint or dismissal of appeal, does not arise at all. Learned counsel, in support of his contention, had found support from the cases of Premier Insurance Company Pakistan Ltd. v. Anis A. Sheikh (2007 CLC 511) and Muhammad Nasarullah v. Muhammad Avaz Khan and another (PLD 1975 Lahore 886).
3. Learned counsel for the respondent, on the other hand, has submitted that amount of court-fee payable by the petitioners was determined, by learned trial Court, while deciding issue No,5.
Petitioners were bound to affix court-fee, which the plaintiff was directed to pay in response to the decision of issue No,5. Learned counsel, while referring to the case of "Assistant Commissioner and Land Acquisition Collector Badin v. Haji Abdul Shakor and others" (1997 SCM R 919), has contended that even when a court-fee is paid subsequently but not within one month's time, was held to be a negligent and contumacious act. Learned counsel went on to argue that in a suit for preemption providing more than one opportunity to make up the deficiency of court-fee, is not legally permissible. If the duty to pay the deficiency of the court-fee, is not discharged within one opportunity, then such party is not entitled to any relief. Learned counsel has supported this submission from the law enunciated by the Honourable Supreme Court of Pakistan in the case of Riffat Iqbal v. Mst. Fahmida Bibi and others (2007 SCM R 494).
' Heard learned counsel for the parties and record perused.
5. It is trite law that the Court Fee Act, is not meant to arm a litigant with the weapon of technicality, against his opponent. The basic object is to secure the revenue for the State. A penal action of rejection of plaint or an appeal is permissible only when, after determination of court-fee, opportunity to make good the deficiency of court-fee, is provided and the plaintiff or appellant, as the case may be, had failed to do so. The rejection of plaint/appeal is mandatory, when the Conduct of plaintiff/appellant is contumacious.
6. The only question, which requires it's determination, is that whether or not, the appellate Court had allowed time to the petitioners to make good the deficiency of court-fee to be affixed on memorandum of appeal. There is no dispute with regard to the amount of court-fee to be affixed on memorandum of appeal viz Rs,13,260. The appeal against the judgment and decree, dated 7-4- 2006 of learned trial Court was filed on 22-4-2006 and no court-fee was affixed until 12-4-2007. It is reflected from order, dated 12-4-2007 that the appellant was asked to explain why court-fee of Rs,13,260 has not been affixed, on the next date and adjourned the matter for 2-5-2007. It will be advantageous to reproduce order, dated 2-5-2007 hereunder.
' "Court fee has not been affixed by the appellants as per previous order and there is a request for adjournment to explain as counsel for the appellants is stated to be busy before another Court, which is granted for 8-5-2007."
7. It transpires from the above order that the petitioners were directed to make good the deficiency of court-fee or to explain why the court-fee was not affixed. Order, dated 2-5-2007, sufficiently conveys that appellants were directed to make the deficiency of the court-fee. The petitioners neither affixed the court-fee as determined by the Court, nor had reasonably explained their inability to pay the court-fee, which resulted into dismissal of appeal vide order, dated 8-5-2007.
Petitioners could not resile from making good the deficiency, in view of order, dated 2-5-2007. The dictum of law laid down by the apex Court, in the case of Assistant Commissioner and Land Acquisition Collector, Badin (supra) requires mention here, wherein it has been held as under:-- ' "In the present case, the petitioner had filed first appeal against a money decree. There does not exist any doubt as to the question of payment of court-fee, as it is to be paid ad valorem on the decretal amount. But the petitioner, in spite of the above clear legal position, opted to file the appeal with Rs,10 court-fee. Even after the objection was raised by respondents Nos.1 and 2, the petitioner in the above quoted para.7 of the rejoinder, took the plea that no court-fee was payable though after the expiry of more than one month, he paid the deficit court-fee as a measure of abundant caution. In our view, learned Judge in Chamber was justified in concluding that the petitioner was negligent and his conduct was contumacious and there existed no reason to show any indulgence to him to extend the time."
8. Following the above dictum of the apex Court, I have no hesitation to hold that the petitioners have failed to make good the deficiency of the court-fee to be affixed, despite the direction of learned appellate Court vide order, dated 2-5-2007. The petitioners have acted negligently and their conduct of failing to affix the court-fee at their own, when it was determined by the Court, is contumacious.
9. For the foregoing, this petition has no force and the same is accordingly dismissed.