' This second appeal is directed against an order, dated the 11th February 1979, passed by the District Judge, Kasur, whereby he had dismissed the first appeal preferred by the appellant, Saiah- ud-Din, on the ground of limitation.
2. The appellant had taken the first appeal to the learned District Judge with a view to calling in question an order of ejectment made against, him, on 1st April 1978, by a Rent Controller in consequence of ejectment proceedings taken out by the respondent, Hafiz Muhammad Alam. The appeal was filed on 16th April 1978. It came up before the learned District Judge on 20th October 1978 for hearing when learned counsel for the respondent raised a preliminary objection that proper court-fee had not been paid by the appellant. On this the learned District Judge ordered as follows :- "The learned counsel for the respondent has raised a preliminary objection that appeal has been insufficiently stamped. He has affixed court-fee of the value of Rs, 15 only. He should have paid court-fee on the annual rental value of the suit property which amount to Rs, 1,200. According to it the appellant was required to affix court-fee stamps. The learned counsel for the appellant has replied that the appellant may be given time for making up deficiency in the court-fee. The learned counsel for the respondent has no objection to it but he is of the view that the appeal is liable to dismissal because the appeal shall be deemed to have been filed from the date of the payment of the deficiency of the court-fee. As deficiency in court-fee is to be paid after period of limitation, the appeal having become time barred shall have to be dismissed. The learned counsel for both the parties require time to prepare arguments on the point. Deficiency in court-fee should be made up by 21-12-1978 subject to the above objection of the learned counsel for the respondent. Come up for arguments on the merits of the appeal as well as the above point on 9-11-1979."
' In pursuance of the aforesaid order, the appellant made good the deficiency in court-fee on 21st December 1978, that is, by the date fixed by the learned District Judge. Thereafter, on 11th February 1979, learned District Judge heard arguments and dismissed the appeal. The concluding part of his order runs as under :- "The principle which is clear from the provisions of section 149 read with the above authorities is that the trial Court as well as the appellate Court has discretion to order the payment of deficiency in court-fee even after the limitation period provided the appellant is not negligent and shows a sufficient cause for his default. In the present case the learned counsel for the appellant has not shown any good cause for the failure on the part of the appellant. The payment of deficient court- fee after the limitation by the appellant, would have been accepted if the learned counsel for the appellant has been able to show that the appellant was not negligent and careless to affix proper court-fee on the memorandum of appeal when it was filed. The only conclusion which can be drawn against the appellant is that the appellant has not been careful and deliberately affixed insufficient court-fee stamps on the appeal. He remained silent for about 8 months and did not move this Court for the condonation of his default. It was on 21-12-1978 that he offered himself to make up 'the deficiency in court-fee after an objection was raised on behalf of the respondent. In these circumstances I am constrained to hold that appellant is not entitled to any indulgence by way of extension of time and up hold the objection of the learned counsel for the respondent that the appeal be dismissed. The appeal is accordingly dismissed but the parties shall bear their own costs."
3. Assailing the above order, it was contended by the learned counsel for the appellant that since the learned District Judge had himself, by his order of the 20th December 1978, allowed the appellant to make good the deficiency in court-fee though subject to the objection of the opposite-party, he could not again dismiss the appeal on the ground that the appeal as originally filed was deficiently stamped. He relied on Jowala Singh and others v. Musammat Dhano and others (1), to support his plea. In the cited case also an objection was raised that the court-fee paid by the appellant was deficient. On this, the Court allowed the deficiency to be made good subject to the objection of the opposite party. Accordingly, the deficiency was made good. Therefore, the suit was dismissed on the ground that proper court-fee had not been paid when it was filed. This order in appeal was set aside by the High Court with the following observations :- "In the present case it is clear that the objection regarding the insufficiency of the court-fees was raised by the, respondents and argued in the presence of the parties. There was, therefore, no reason for postponing the decision of the question of limitation. The proper course for the District Judge was to make up his mind whether there was any good ground for allowing the deficiency to be made up. It was not fair to permit the deficiency to be made up and then to hold that the appeal was barred by limitation."
In view of the aforesaid authority, I feel that since the learned District Judge had firstly allowed the appellant to make good the deficiency in court-fee he could not subsequently non-suit him for not paying the requisite court-fee in time. If he was not sure as to whether in view of his conduct, the appellant was entitled to extension of time for making good' the deficiency he ought to have satisfied him in this behalf before allowing him to pay the additional court-fee; but after he had permitted the appellant to make up the deficiency and the appellant had also done the needful the learned District Judge could not take exception to the competency of the appeal on the ground that it was deficiently stamped when it was originally filed.
4. It is also to be noted that the respondent's objection which was to be considered by the learned District Judge after the making good of the deficiency in court-fee was not to the effect that the appellant was negligent in the matter of the payment of court-fee. The respondent had in fact, agreed to the making good of the deficiency by the appellant but had urged that as the deficiency would be made good after the period of limitation prescribed for filing the appeal, it would be time barred. All this shows that after the learned District Judge had permitted the appellant to pay more court-fee what was left to be examined was not the entitlement of the appellant to make up the deficiency in court-fee but the effect of the deficiency being made good after the period of limitation. In this connection, the law has been clearly set out in section 149 of the Code of Civil Procedure which reads thus :- "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 {{FOOT NOTE}}
(1) 133 I C 122 {{FOOT NOTE}} ' person, by whom such 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 had been paid in the first instance."
It would, therefore, follow that after the deficiency in court-fee was mad good, the appeal was to be deemed to have been properly stamped at the time when it was originally filed. In the circumstances, it could not be treated as time barred on the ground that the period of limitation had run out by the time the deficiency was made up.
5. In this view of the matter, the impugned order of the learned District Judge is not in accordance with law. I, therefore, accept the appeal, set aside his order and remand the first appeal to him with the direction that he shall now decide it on merits. As the respondent did not turn up to contest the appeal, I make no order as to costs.