' ZAFAR AHMED RAJPUT, J.---This Civil Revision under section 115, C.P.C., is directed against the judgment and decree dated 2-4-2010 passed by the learned IIIrd Additional District Judge, Sukkur, whereby the Civil Appeal No, 124 of 2009, filed by the applicant against the judgment and decree dated 6-8-2009 and 10-8-2009 respectively, passed by the Court of 1st Senior Civil Judge, Sukkur in F.C. Suit No,101 of 1999 (Re: Hafiz Muhammad Mubeen v. Govt. Of Sindh and others), was dismissed for non-payment of court-fee.
2. The brief facts of the case are that the applicant/plaintiff filed a suit for, redemption, specific performance and permanent injunction averring therein that the immoveable property bearing C.S. No,A-1314/20, measuring 128-8 Sq. Yds., situated at Baban Shah Mohallah, Old Sukkur was originally owned by late Muhammad Naeem Khan (the defendant No,5) who, in his life time, agreed to sell out the suit property to applicant/plaintiff on consideration of Rs,2,50,000.00; that such sale agreement was reduced in to writing on 13-2-1991and the possession of the suit property was handed over to the applicant; that the defendant No, 5 had obtained a loan from defendant No, 2 (HBFC), therefore, as per the terms and conditions settled between the parties the plaintiff paid Rs,1,41,742.00 to defendant No,5 and the remaining amount was agreed to be paid to defendant No 2 (HBFC) by the plaintiff; that as per said sale agreement the plaintiff was bound to redeem the original documents from HBFC by repaying the loan liability; that in the year 1995 the defendant No,5 expired leaving behind him defendants Nos.5 (a) (b) and (c) as his surviving legal heirs, who are bound to execute sale deed in favour of plaintiff but the legal heirs of defendant No,5, taking advantage of HBFC Prime Minister Package for widows, trying to redeem the title documents from HBFC in breach of the terms and conditions of sale agreement. The applicant/plaintiff being aggrieved filed the aforesaid suit for redemption, specific performance and permanent injunction.
3. The respondents/defendants Nos. 2 and 5 resisted the suit and filed their written statements controverting the allegations levelled by the applicant/plaintiff. From the divergent pleadings of the parties, the learned trial Court framed the issues. Thereafter, the plaintiff was directed to adduce his evidence. Plaintiff was examined partly on 1-10-2008 and his further examination-in- chief was reserved on the request of his counsel, but the plaintiff did not turn up for evidence.
Consequently, on 6-8-2009, the learned trial Court dismissed the applicant/ plaintiff's suit under Order XVII, Rule 3, C.P.C.
4. The applicant/plaintiff preferred Civil Appeal No, 124 of 2009, which was also dismissed by the learned Additional District Judge-V, Sukkur vide judgment dated 2-4-2010. The operative part of the impugned judgment reads as under:-- "On 14-1-2010 learned counsel for the appellant submitted an application that the appellant has expired and required amended title will be filed accordingly joining the legal heirs of the appellant.
On the same date an application under section 151, C.P.C. Read with Article 1 of the Court Fees Act, 1870 filed on behalf of the respondent No,6 submitting that the appeal has been filed without affixing the required court fee and that if the memo of appeal does not carry the required court fee, the same is incompetent, not maintainable and liable to be dismissed. Learned counsel for the appellant filed an application under Order XXII, Rule 3 read" with section 151, C.P.C. And consequently filed the required amended title as well. On hearing the arguments learned counsel for the appellant has submitted that one week time may be given to affix the required court fee.
' On deliberation the Court finds that the time is always given to affix and make the deficiency of the court-fee good. But here in the present case, the limitation for filing the appeal has expired and for such condonation of delay, the Court finds that in the cited case-law i,e, PLD 1972 Karachi 103 Mst. Saddiqunnisa v. Khan Sahib Aga Muhammad Sultan Mirza and 8 others, the Hon'able High Court in D.B. Judgment was pleased to hold that the plaint or memo of appeal cannot be treated as properly presented so long as the proper court fee is not paid. In the referred very case the pleas of the appellant that (i) appellant was an old woman and (ii) she was suffering from kidney disorder were not considered sufficient and adequate for condonation of delay. Finding that such delay cannot be condoned in the circumstances and the time cannot be allowed to affix the required court fee, the appeal having no merit hereby dismissed, with no order as to costs."
5 I have heard Mr. Syed Bahadur Ali Shah, the learned counsel for the applicants, Mr. Yousuf Ali, the learned counsel for the respondents Nos. 5 and 6, and have perused the entire material available on record.
6. Learned counsel for the applicant has mainly contended that the appeal was filed within time and the supply of court fee at some subsequent stage is deemed to have retrospective effect from time of original filing of plaint or memo of appeal; that it is duty of the Ministerial Officer of the Court to check suit or appeal in all respects before putting up same before judge for admission or otherwise but the Ministerial Officer did not take any objection otherwise the deficiency could have been made up at early stage; that the appellant was expired after filing of appeal, therefore, his legal heirs were brought on record; such amended titled was filed and required court fee could have been deposited within one week but the request made by the counsel was declined by the appellate Court; as such, the legal representatives of applicant/appellant had seriously prejudiced as the learned appellate Court dismissed the appeal of L.Rs, of applicant/appellant without giving them opportunity to engage a counsel and hearing; hence, the learned appellate Court has.
Committed illegality in demising the appeal of applicant/appellant. The learned counsel has relied upon the cases of Siddique Khan and 2 others v. Abdul Shakoor Khan and another (PLD 1984 SC 289), Mst.- Shahana Khan v. Mst. Khalida Parveen (2003 CLC 1559) and Haji Muhammad Wa'ris v.
Muhammad Hayat (2006 CLC 1680).
7. In rebuttal, the learned counsel for the respondents Nos. 5 and 6 has contended that the impugned judgment passed by the learned appellate Court does not suffer from any illegality or irregularity and requires no interference of this Court; that a plaint or a memo of appeal cannot be treated as properly presented so long as proper court-fee is not paid, therefore, the appeal cannot be taken to have been instituted until and unless the deficiency is made up within period of limitation. He has also contended that the applicant has failed to exhaust the remedy of appeal; therefore, he cannot seek his remedy by way of revision. The learned counsel has relied upon the cases of Mst. Saddiqunnisa v. Khan Sahib Aga Muhammad Sultan Mirza and 8 others (PLD 1972 Karachi 103) and Muhammad Ibrahim and another v. Group Captain Salehuddin and another (1987 SCMR 218).
8. It appears from the perusal of the material available on record that the Civil Appeal No 124 of 2009 was filed on 10-9-2009 and the same was decided vide judgment and decree dated 2-4- 2010. The learned appellate Court neither at the time of presentation of appeal nor thereafter during its pendency took notice of non-payment of court-fee nor even given direction to appellant to affix court-fee on the memo of appeal. At the first command under the Sindh Civil Courts Rules, (Rules 30, 92 and 93) it is duty of the Chief Ministerial Officer of the Court to receive the plaints, applications, appeals and examine them in A order to see whether all the requirements of law have been complied with or not. Thus, in fact, although a mistake was committed by the appellant by not affixing the court-fee on memo of appeal, yet its effect was aggravated by silence of the Office of the Court and it is well settled principle of law that act of the Court or the act of the public functionary on the actions of whom a citizen has no control should not be allowed to prejudice any one. In the case of Taza Gul and others v. Haji Fazal Subhan (2006 SCMR 504) it has been held by the honourable Supreme Court of Pakistan that no person should suffer for the mistake of the Court.
9. The plain reading of the Court Fees Act clearly conveys that the basic intention of the Legislature and the purpose for the enactment of the Court Fees Act was to recover the revenue and not to penalize the litigant public for non-compliance of any provisions of the Court Fees Act, 1870. It is also settled principle of law that the provisions of Court Fees Act, 1870 and other fiscal statute were to be construed strictly in favour of subject because the basic object of all these statutes is to secure revenue for the benefit of the State and not to harm the litigant with the weapon of technicality. This view also finds support from the case of Siddique Khan and 2 others v. Abdul Shakoor Khan and another (PLD 1984 Supreme Court 289).
10. The learned appellate Court while refusing the request of applicant/appellant for grant of one week's time to affix court-fee on memo of appeal, did not go through the provision of section 149 of C.P.C. And dismissed the appeal in non-payment of court-fee. Section 149 of C.P.C. Is very clear on the subject. It provides that where whole or any part of any court-fee prescribed for any document by the law for the time being in force relating to court-fee has not been paid the Court may, in its discretion, at any stage, allow the 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. The learned appellate Court also ignored the provisions of section 28 o1 the Court Fees Act, 1870, which is in unification with section 149 of C.P.C. It postulates that the document which ought to bear a stamp under Court Fees Act, 1870 shall not be of any validity, unless and until it is properly stamped. But, if any such document is through mistake or inadvertence received, filed or used in any Court or office, without being properly stamped, the Presiding Judge or the head of the office as of case may be, or, in the case of a High Court, any Judge of such Court, may, if he thinks fit, order that such document be stamped as he may direct; and, on such document' being stamped accordingly, the same and every proceeding thereto, shall be as valid as if it had been properly stamped in the first instance.
11. The learned appellate Court, while deciding the Civil Appeal, examined the applicability of the case of Mst. Saddiqunnisa v. Khan Sahib Aga Muhammad, Sultan Mirza and 8 others (PLD 1972 Karachi 103) in very narrow spectrum. The learned appellate Court has not gone into the merits of the case and dismissed the appeal simply on the ground that the appellant has not paid the court-fee; therefore, his appeal was incompetent and not maintainable for non-payment of court- fee and that the time is always given to make up deficiency of the court-fee good but in this case the limitation for filing the appeal has expired. This view is quite contrary to the case of Siddique Khan and 2 others v. Abdul Shakoor Khan and another (PLD 1984 Supreme Court 289) wherein a Full Bench of Supreme Court of Pakistan has held that-- "(a) It would indeed be anomalous if limitation is not saved in cases in which law requires the Court to allow the plaintiff to correct the valuation of the relief claimed in the suit which must necessarily entail making up deficiency in the stamp paper affixed on the plaint; therefore:
(b) Time should automatically be enlarged in cases in which the Court has the discretion to grant time to pay the whole or part of the court-fee prescribed; and
(c) Consequently where the plaintiff is required to correct the valuation of the relief claimed in the suit, "he shall further be required to supply the requisite stamp paper and on compliance it shall have the same force and effect as if such fee had been paid in the first instance."
' In the light of what has been held by the Full Bench of Supreme Court of Pakistan in the case of Siddique Khan (supra), I am of the opinion that the view held in the case of Mst. Saddiqunnisa (supra) by our High Court, relied upon by the learned appellate Court, to hold the appeal of applicant/appellant incompetent and not maintainable, has no binding effects.
12. Keeping in view the provisions of section 149 of C.P.C. And section 28 of the Court Fees Act, had the learned appellate Court provided an opportunity to applicant/appellant to affix court-fee on the memo of appeal, and had the applicant/appellant failed to affix court-fee as per direction of the Court within time given by the Court, then off course the appeal was liable to be dismissed.
13. It is now well settled proposition of law by the afflux of time that the appeal shall be deemed to have been filed on the date of its original presentation notwithstanding the fact that court-fee was supplied after the period of limitation i,e, if the court-fee was later on affixed, that would not render the appeal barred by time since the appellate Court failed to provide specific time for the applicant/appellant to affix the court-fee on the memo of his appeal and without giving such specific time, his appeal was dismissed, therefore, the appellate Court has acted in exercise of its jurisdiction illegally and with material irregularity and failed to exercise jurisdiction vested in it.
14. In view of above discussion, I allow the revision application, set aside the impugned judgment and decree passed by the learned appellate Court and remand the case to it. I allow twenty five days time to the applicant/appellant from the date of this judgment to affix required court-fee on the memo of his appeal and then the learned appellate Court shall decide the appeal on merits strictly in accordance with law. The parties are directed to appear before the learned appellate Court on 5-10-2013. Office is directed to remit the R & P back to the concerned appellate court before the date fixed. The instant Civil Revision stands disposed of accordingly. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.