This civil revision is preferred against an order dated 13.03.2008, passed by learned Additional District Judge, Wazirabad, whereby an application filed by the petitioner for permission to levy the Court fee, was dismissed.
2. From the instant civil revision, following legal propositions arise for consideration and adjudication:-- iWhether the Court (including the Court of appeal) can extend the time for filing the Court fee in a case of specific performance of an agreement. Ii. Whether the deposit of amount of requisite Court fee in the government treasury well within time will be construed the payment of Court fee. Iii.
Whether the non-levy of Court fee, despite depositing the requisite amount in the government treasury would entail the ,dismissal of the suit/appeal.
3. As per record, the petitioner instituted a suit for specific performance of an agreement to sell; the suit was contested by the respondent; the learned trial Court, after observing all the codal and legal formalities, dismissed the suit vide judgment and decree dated 16.09.1999, against which an appeal was filed by the petitioner on 30.09.1999; the appeal was allowed vide judgment and decree dated 25.01.2000, in the following manner: "The appeal is accepted with cost, modifying the impugned judgment/decree by holding that the appellant was entitled to have the suit decreed, as a whole as prayed for with cost. The Sale-deed dated 28-02-1995 is therefor, cancelled. The appellant has not affixed Court fee amounting to Rs, 15,000/-upon the appeal, he is directed to affix the Court fee within 30 days from the date of this judgment, otherwise, his suit shall stand dismissed."
4. The respondent filed a Constitutional petition (W.P.No, 10667/2000) challenging the aforesaid judgment and decree which was withdrawn by the respondent on 12.04.2007 and by this way, the judgment and decree dated 25.01.2000 remained intact. The learned appellate Court, while accepting the appeal, had ordered to the petitioner to affix the Court fee within thirty days. The petitioner, for the levy of Court fee, filed an application for the extension in time. The application was ordered to be consigned to the record room and adjourned sine die till the decision of the aforementioned petition (W.P.No, 10667/2000); the petitioner, after the withdrawal of the writ petition, on 12.04.2007 filed an application before the learned appellate Court for summoning the file to affix the Court fee; the application was dismissed by the learned appellate Court on 13.03.2008 along with an application for framing the issues on the application for extension of the time. Hence, this civil revision.
5. Heard. Record perused.
6. To resolve the controversies, the record was perused with the assistance of learned counsel for the parties. It is admitted on record, that the petitioner, in order to file, the appeal against the judgment and decree of the learned trial Court, deposited an amount of Rs, 15,000/- in the government treasury on 28.09.1999; the appeal was filed on 30.09.1999 and after passing the decree by the learned appellate Court on 25.01.2000, and during the pendency of the writ petition (W.P.No, 10667/2000) filed by the respondent, filed an application on 20.06.2000 for extension in time which was firstly ordered to be consigned to the record and secondly, the application of the petitioner was dismissed.
7. It is well settled proposition of law, that matter regarding the recovery of Court fee is between litigant and the exchequer and ' delay if occurred would not cause any prejudice to the judgmen debtor. The petitioner timely deposited the amount of Court fee with the government treasury and the delay is neither willful nor contumacious. Reliance is placed on Asif Nasrullah Khan (Minor) and 2 others v. Hayat Khatoon and 2 others (2007 CLC 1657).
8. As regard the extension of time, it has been ruled in Nizamud-Din and 13 others v. Ch. Muhammad Saeed and 7 others (1987 CLC 1682), as under: "2. It may be stated as a general rule that, unless otherwise provided, a Court is not competent to alter a decree and that neither Section 148 nor the residuary Section 151 of the Code of Civil Procedure will avail a person who seeks the alteration. Section 148 gives the Court power to extend time fixed or granted by it for the doing of any act prescribed or allowed by the Code and this the Court can do even after the period originally fixed or granted has expired. But this section, it is now well-settled, does not apply where the period is fixed by a decree unless the decree is in the nature of a preliminary decree and the Court still retains seisin over the action. Per Hamoodur- Rehman, J. In Shah Wali v. Ghulam Din (PLD 1966 SC 983 at 1000). The principle on which this rule rests, to quote again from the judgment of Hamood-ur-Rehman, J. In Shah Wali 's case, is: "that since a decree normally puts an end to a suit the power of the Court to pass any other order with respect to that particular suit thereafter also comes to an end and the Court becomes functus officio with regard thereto. The exception made in the case of a preliminary decree is also on the same basis that in the case of such a decree the Court does not become functus officio but still retains control over the action and, therefore, has full power to make necessary orders therein including an order for the extension of time. "
9. In another case cited as Zila Council, Sargodha v. Haji Irshad Ahmad (1994 CLC 79 Division Bench case), it is observed, that if the litigant had deposited the requisite amount for purchasing the Court fee in the government treasury and has not been utilized for any other purpose or case, the litigant will not be burdened. In a case for specific performance, even the time can be extended for the payment of consideration Nasir Ahmad v. Muhammad Yousuf (PLD 1994 Lahore 280)]. The Hon'ble Supreme Court of Pakistan has observed in a case cited as Shabbir Ahmed and another v.
Zahoor Bibi and others (PLD 2004 SC 790), that granting a decree in a suit for specific performance, the Court does not become functus officio and the Court has the powers to pass further orders.
10. While dealing with the application for extension in time, the conduct of the litigant to supply the 'Court fee after the stipulated time is materially relevant. Asif Nasrullah Khan (Minor) and 2 others v.
Hayat Khatoon and 2 others (2007 CLC 1657)].
11. In a judgment cited as Sikandar Ali v. Abdullah and 3 others (PLD 2015 Sindh 155), it has been observed, that non-payment of Court fee was mere irregularity which can be corrected at any time and such irregularity has not rendered the impugned order without jurisdiction.
12. While dealing with the proposition, the Hon'ble Supreme Court of Pakistan in a case reported as Qazi Shamas-ur-Rehman and another v. Mst. Chaman Dasta and others (2004 SCMR 1978) has observed as under: "This Court in the case of Muhammad Swaleh PLD 1964 SC 97 has held that every irregularity or illegality in exercise of jurisdiction will not render the order of Court void and without jurisdiction.
Any party aggrieved of such irregularity has to further show that there was such violation of statutory provision which rendered proceedings coram non judice. It is a known principle of law that a procedural irregularity cannot be allowed to stand in the way of justice unless the irregularity has caused a serious, miscarriage of justice. "
' From the above facts of the case and the law, it appears, that the Court can grant the extension in time to levy the Court fee particularly in a case for specific performance of a contract obviously if the conduct of the litigant is not willful and contumacious. In this case, no such evidence is available on the file to show and to prove the mala fide, willful omission and contumacious conduct of the petitioner. The respondent has otherwise failed to prove or rebut the claim of the petitioner to the effect, that the petitioner deposited the amount of Court fee with the government treasury even before filing the appeal i.e, on 28.09.1999 and the Court fee had not been used in any other case, by the petitioner. The petitioner has also placed on record, while filing the application, the copy of the challan to show the deposit of requisite Court fee in the government treasury, therefore, the learned appellate Court should have extended the time and allowed the petitioner to levy the Court fee instead of dismissing the application on surmises and conjectures. The learned counsel for the respondent also relied upon the judgments cited as Ghulam Muhammad through his Legal Heirs v. Muhammad Riaz (1985 MLD 131), Ghulam Rasool v: Additional District Judge, Narowal and another (1994 CLC 1311), Ghulam Murtaza and others v. Ghulam Jillani (2000 YLR 1798), Ahmed Yar v. Abdul Razzaq and 2 others (2002 MLD 1010), Mst. Naseema Salahuddin and 2 others v.
Mst. Daulat Fatima and 4 others (PLD 2004 Lahore 103), Syed Muhammad Taqqi v. Additional District Judge, Pindi Bhattian and 3 others (2005 MLD 1144), Riffat 'Oat v. Mst. Fatima Bibi and others (2007 SCMR 494) and Raja Shamsher Mehdi v. Malik Muhammad Riaz and another (2008 MLD 877), which have no nexus with the proposition involved in the matter. The judgments referred by the learned counsel for the respondents are entirely on different propositions. Only one judgment (PLD 2004 Lahore 103) relates to the proposition which makes the proposition clearer and easier to understand. The relevant part of the judgment (supra) is reproduced as under: "10. ... Therefore, we are of the firm view that, once a decree, in a suit for specific performance of an immovable property, has been passed, which is conditional in nature envisaging a direction to the plaintiff/deeree-holder to make the deposit of certain balance consideration in the Court by a specific date and in case of his failure to do the needful, the suit shall be deemed to have been dismissed, this means the decree is final and conclusive for all intents and purposes, as the Court had finally disposed of the matter, and nothing is left for further determination by the Court, therefore, the Court loses its control over the lis. Resultantly, if the condition of the deposit of certain amount for the grant of decree is not fulfilled, the Court shall have no power under Section 148, C.P.C. To extend the time, as being functus officio. But this rule obviously cannot be held to be absolute, but is subject to certain exceptions, which includes the situations beyond the control of the decree-holder to comply with the decree or the act of the Court, which impedes the compliance thereof."
The afore-referred judgment, as earlier observed, has made the proposition easier to understand, thus the learned appellate Court committed glaring illegality by refusing to extend the time to levy the Court fee.
13. In view of the facts of the case and the law, this revision petition is allowed and the impugned order dated 13.03.2008, passed by learned Additional District Judge is set aside. No order as to costs.
(R.A.) .