' HAFIZ ABDUL REHMAN ANSARI, J.-- Through this regular first appeal, the appellants have assailed the judgment and decree dated 14-9-2006 passed by lear.Ned Additional District Judge, Kot Addu, District Muzaffargarh.
2. That respondents/plaintiffs filed a civil suit in the Court of Civil Judge 1st Class, Kot Addu for recovery of Rs,9,98,000 against the defendants on the ground that the plaintiffs are commission agents and deals in cotton business. The predecessor-in-interest of the defendants Nos.1 to 10 namely Syed Mureed Hussain Shah deceased, who was also owner of defendant No,11 has been doing the business of cotton with the plaintiffs and at the end of business seasons the plaintiff No,1 owned Rs,5,98,000 and plaintiff No,2 Rs,4,00,000 to be received from Syed Mureed Hussain Shah deceased. Syed Mureed Hussain Shah acknowledged the liability in writing on 12-8-1998 about the payment of above-stated amounts to the plaintiffs. Syed Mureed Hussain Shah neither paid the amount to the plaintiff nor to the person of Shah Nawaz according to agreement. Therefore, the defendants Nos.1 to 10 being legal heirs of Syed Mureed Hussain Shah deceased and defendant No,11 being estate left by deceased are liable to pay the disputed amounts to the plaintiffs but the defendants have refused to pay the same to the plaintiffs. Hence, this suit.
3. The present appellants/defendants filed written statement and contested the suit on the ground that plaintiffs have no cause of action; that the plaintiffs prepared the forged, collusive and bogus document dated 12-8-1998, having fictitious signatures of the deceased; that the suit of the plaintiff is not maintainable in its present form; that there is no outstanding liability against them.
4. Out of divergent pleadings of the parties, following issues were framed:
(1) Whether the plaintiffs have no cause of action to file this suit? OPD
(2) Whether the suit is not maintainable in its present form? OPD
(3) Whether the suit is liable to be dismissed in view of preliminary objection Nct..2 and 3 of the written statement/ OPD
(4) Whether the plaintiffs paid disputed amount to Mureed Hussain Shah predecessor of the defendant; if it so, then whether the plaintiffs are entitled to get the decree as prayed for? OPP
(5) Relief.
5. Learned trial Court vide judgment and decree dated 17-5-2005 decreed the suit of the respondents/plaintiffs. Syed Iqbal Hussain etc. Assailed the judgment and decree of the learned trial Court passed against them by the learned trial Court. This appeal was filed on 4-3-2006 which was fixed for preliminary arguments on 7-3-2006. On 7-3-2006 it is stated that the appellant's counsel is indisposed. Case was adjourned to 13-7-2007(sic). On 13-7-2007(sic) after (sic) preliminary arguments were heard. Pre-admission notice was issued to respondent for 4-4- 2009(sic). On 11-5-2006(sic) Rana Naseem Akhtar, Advocate filed power of attorney an behalf of the respondents. Case was adjourned on different dates. On 9-8-2006 following order was passed:--- "Preliminary arguments heard. The suit, the subject-matter of this appeal is valued at Rs,9,98,000 for the purpose of court-fee and jurisdiction. Therefore, the value of the suit shall be the value of this appeal. The appellants are, therefore, duty bound to pay the court-fee of Rs,15,000 on this memorandum of appeal. The appellants are ordered to pay this court-fee of Rs,15,000 on this memorandum of appeal up to next date of hearing fixed as 14-9-2006. Further proceedings will be conducted in the appeal after the compliance of this order.
6. For the first time on 9-8-2006 matter of appeal was valued as Rs,9,98,000 for the purpose of court-fee and jurisdiction. On 13-9-2006 an application on behalf of the appellant was moved for extension of time for affixing of court-fee on memorandum of appeal. Learned Additional District Judge, Kot Addu after hearing both the parties passed order on 14-9-2006 on the application for extension of time to make up deficiency of court-fee. Vide order dated 14-9-2006 learned Additional District Judge observed that period of more than one month was granted to the appellant to pay the court-fee of Rs,15,000 on 9-8-2006. While deciding application for extension of time learned Additional District Judge dismissed the appeal simultaneously of the appellant.
"In the light of above discussion, read with the above case law, the application for extension of time for payment of court-fee is dismissed. In spite of direction of this Court, in the granted period, the appellants have not paid the court-fee of Rs,15,000. There appeal is therefore, dismissed for non- payment of court-fee in compliance of the order of this Court passed on 'the last date of hearing. "
7. Learned counsel for the appellant submits that the business of the appellant went in loss they were facing financial hardship on account of which they could not deposit Rs,15,000 within one month as was required vide order dated 9-8-2006 passed by the learned Additional District Judge, that both the courts below have not taken the case in proper perspective and have committed illegality; further submits that the learned lower appellate Court of Additional District Judge proceeded to dismiss the appeal without providing an opportunity to make up the deficiency and deciding the appeal in hasty manner although it is correct that on 9-8-2006 when one opportunity was 'given to make up the deficiency till 14-9-2006 was given; that the appellants defendants could not arrange Rs,15,000 with bona fide he filed application on 13-9-2006 to extend the time for making up the deficiency of court-fee; further submits that learned Additional District Judge on 14- 9-2006 has extended the time for making up the deficiency as request made in black and white was genuine; further submits that there is no opposition. Recorded by the learned lower appellate Court on behalf of respondents/plaintiffs on the record; that learned Additional District Judge on his own without the opposition of the respondents/plaintiffs dismissed the application of the appellants for extension of time on the same day he dismissed the appeal of the appellants/defendants; further submits that valuable rights are involved; that the defendant has challenged the basic document which was prepared fictitiously; further submits that appellant is ready to make up the deficiency of court-fee if one opportunity is given by this Court and the appeal is decided on merits.
8. Learned counsel for the respondents vehemently opposed the contention of the appellant's counsel by submitting that appeal filed by the appellants defendants was hopelessly time-barred; that firstly appeal was filed on 4-3-2006 without court-fee of Rs,15,000 and it was in the knowledge of the appellants/defendants that the suit filed was for Rs,9,98,000 which was decreed in favour of the respondents/plaintiff. He was duty bound to fix Court of fee of Rs,15,000 an memorandum of appeal for which they failed to do, the needful. Since 4-3-2006 upto 9-8-2006 the appellants did not make up the deficiency of the court-fee I-near about for five months ultimately on 9-8-2006 appellant was ordered to make up the deficiency of court-fee on the memorandum of appeal before the learned lower appellate Court. Learned counsel for the respondents/plaintiffs supports that the lower appellate Court rightly dismissed the application on 14-9-2006 for extension of time for making up the deficiency of court-fee and rightly dismissed the appeal.
9. I have heard the arguments advanced by the learned counsel for the parties and perused the record of both the courts below.
10. It is admitted fact that on account of some dispute between the parties respondent filed a suit for recovery of Rs,9,98,000 which was decreed by the learned trial Court after contest. The contention of the learned counsel for the respondents/plaintiffs that appeal filed before the Additional District Judge, Kot Addu was time-barred in this regard order dated 14-9-2006 passed by the learned Additional District Judge is silent. Learned Additional District Judge has not touched this aspect of the appeal the sole ground for dismissal of appeal is deficiency of court-fee of Rs,15,000. The learned counsel for the appellant makes reliance on PLD 1984 SC 289, 2003 CLC 158.
At the very beginning after perusal of the appeal Learned trial Court should have asked the appellant to fix the court-fee but learned Additional District Judge did not pass any order for fixing the court-fee of Rs,15,000 on the memorandum of appeal. It was first time on 9-8-2006 lower appellate Court granted one month time to make up the deficiency up to 14-9-2006. The appellants/defendants one day_ earlier rightly moved an application before expiry of one month time i,e, 14-9-2006 for making up the deficiency of court-fee for extension of time it was very much in the jurisdiction on the learned Additional District Judge to extend the time in the interest of justice. He not only dismissed the application for extension of time but on the same day he dismissed the appeal of the appellants/defendants. I am fortified in this regard from the Judgments titled as Siddique Khan and 2 others v. Abdul Shakoor Khan and others PLD 1984 SC 289.
In this judgment there is detailed and elaborate discussion, in making up the deficiency of the court-fee, which fully supports the stance of appellant. Another case reported as Sultan Ahmad and others v. Khuda Bux and others 1986 SCM R 1005. In this case also order for making up deficiency was passed by trial Court, within granted time for making up deficiency, compliance was not made, then, through another order time was extended for making up deficiency under sections 148 and 149 of C.P.C. It is held that exercising power vesting in the Court under section 148 C.P.C. Time can be extended successively and even after the extended time is expired. In the instant case lower appellate Court first time on 9-8-2006 extended time to make up the deficiency of court-fee of Rs,15,000 upto 14-9-2006. Before the expiry of extended time, one day earlier, the appellant submitted an application for extension of time to make up the deficiency of court-fee. In the light of dictum laid in judgment referred supra the lower appellate Court could extend the time further for making up the deficiency of court-fee of Rs,15,000. The lower appellate Court not only dismissed the application for extension of time and simultaneously dismissed the appeal of the appellants. PLD 1990 SC 42, PLD 1961 SC 882, PLD 1981 SC 489 can be referred on the law point in issue.
11. It is in the interest of justice that appeal is decided on merit if the appeal was time-barred as alleged by learned counsel for respondents the Additional District Judge will also see this aspect of the appeal. In the impugned judgment dated 14-9-2006 this aspect of the appeal is not discussed.
In the interest of justice, one opportunity is given to the appellant to make up the deficiency of court-fee of Rs,15,000. The case is remanded back to learned, lower appellate Court for decision afresh. Both the parties shall appeared before the trial Court on 5-11-2009 and learned appellate Court after appearing of both the parties shall give one opportunity to the appellants to make up the deficiency of the court-fee. I allow this appeal. The appellants have voluntarily offered to deposit Rs,20,000 as cost in the account of the Dispensary of High Court Bar Association, Multan before appearing before the learned lower Appellate Court on 5-11-2009.