MUHAMMAD AMEER BHA TTI, J.--- Order dated 23.11.201 1 passed by the learned Addl. District Judge, Lahore through which it refused to grant extension in time to make up deficiency of Court fee has been called-inquestion by way of this revision petition.
2. Brief facts of the case are that a suit for cancellation of document and permanen t injunction on the basis of sale deed filed by the petitioner was dismissed by the learned trial. Court vide judgment and decree dated 26.05.2010 on account of non-production of evidenc e by striking down his right to lead evidence under Order XVII Rule 3 C.P.C. Appeal whereof filed by the petitioner was accepted by the learned first Appellate Court vide its judgment dated 05.07.201 1 and one last opportuni ty was granted to the petitioner to lead evidence subject to payment of cost of Rs.5000/- to be paid to the respondent. It is added that anther condition was also imposed by the learned first Appellate Court in the following manner:- "It is observed that the appellant has not affixed court fee on the memorandum of appeal, therefore, he is directed to affix requisite court fee on the memorandum of appeal within 15- days. In failure thereof, would entail rejection of memo of appeal".
The petitioner did not make up the defici ency of Court fee within the time stipulat ed by the learned first Appellate court, however , an application for extension of time was moved on 10.09.201 1 which was rejected through the impugned order dated 23.1 1.201 1.
3. Contention of learned counsel for the petitioner is that the order dated 05.07.201 1, whereby direction for making up the deficiency of Court fee, seems to be defective as the specific amount has not been mentioned which was mandatory requirement of law for its compliance. Further submits that according to Section 13 of the Court Fee Act, the learned first Appellate Court was obliged to return court fee if appended in case of acceptance of appeal and in such eventuality there was no occasion for the learned first Appellate Court to impose condition to makeup deficiency of Court fee as the appeal of the petitioner had been accepted and case was remanded for decision afresh on merits after recording evidenc e of the parties, therefore, order for making the deficiency of Court fee good being contrary to law was un-sustainable having and had no binding force upon the petitioner to implement the same. Further contends that the petitioner although applied for extension of time to make up deficiency with a specific plea that he had applied for issuance of stamp paper , therefore, the stamp vendor who issued receipt after receiving amount of Rs.4500/- could not be located subsequently despite hectic efforts made by the petitioner and for this unfortunate incident, the petitioner could not approach the Court within time stipulated for making up deficiency of court fee and this factual aspect of the case has not been allowed to be proved by leading evidence.
Also contends that learned trial Court although at the time of filing suit directed the petitioner to deposit court fee of Rs.4500/- which was affixed on suit, however , the respondent/defendant raised preliminary objection regarding fixation of Court fee and this controversy was condensed in issue inasmuch as specific issue No.8 was framed in this regard, however , after closing eviden ce of the petitioner the suit was dismissed and this issue was decided against defendant/respondent, therefore, the court fee which was initially affixed by the petitioner on the direction of learned trial Court in view of the decision on issue in negative proved that the petitioner was not liable to pay Court fee on the memorandum of appeal and this aspect of the case has also eluded attention of learned first Appellate court, therefore, the order impugned passed by the learned first Appellate Court is un-sustainable in the eye of law .
4. On the other hand, learned counsel for respondent contends that the petitioner remained negligent and careless to make up the deficiency of Court fee within the stipulated period unequivocally directed by the learned first Appellate court while granting one opportunity to lead evidence which he failed to perform, hence the learned first appelate Court had rightly rejected application of petitioner . Further contends that the Hon'ble Supreme Court in a case reported as Muhammad Wahid and another v. Nasrullah and another (PLJ 2016 SC 25) elaborated in the said judgment that the Court had the jurisdiction to extend time provided the application for its extension of the stipulated period if had been moved before lapse of fixed period and beyond that the Court being functus officio is ceased to have jurisdiction to make any change in the order or judgment, therefore, the learned first Appellate court has not committed any illegality . Thus whatever the grounds taken by the petitioner are not helpful for him as he approached the Court after lapse of the stipulated period, hence the judgment of the Hon'ble Supreme Court referred supra squarely is applicable leaving no room for this Court to interfere in the refusal order passed by the learned first Appellate Court.
5. I have heard learned counsel for the parties and gone through the record.
6. I am convinced by the ratio laid down in latest case-law of apex Court, reported as Muhammad Wahid and another v . Nasrullah and another (PLJ 2016 SC 25 ) relevant portion thereof, as under:- "Admittedly the appellants had made application for extension of time for deposit of balance sale consideration on 14.10.2008 after lapse of 40-days. Such application, in the given circumstances, could not have been granted by the learned trial Court in exercise of its powers under Section 148 CPC, as on the said date the trial Court had become functus officio by Virtue of its judgment/decree dated 31.07.2008. The issue that the trial Court had passed a preliminary decree on the said date which became final on 31.10.2008 has no nexus with the condition incorporated in the decree of the trial Court which had specifically stated that in case of non-deposit of balance sale consideration within the stipulated time, the suit shall stand dismissed. Such a decree could have only been challenged by the appellants in appeal and the Appellate Court was competent to allow an application of the nature if justifiable grounds were found in such an application seeking extension of time for deposit of balance sale consideration. The jurisdiction with the trial Court was available only within the stipulated period of 40 days , and the moment this period of 40 days was over, it ceased to have jurisdiction and had become functus officio, in view of the condition incorporated in the decree.
Said reiteration of august Supreme Court has binding force in view of Article 189 of Islamic Republic of Pakistan 1973 in view whereof, it is held that the Appellate Court had become functus officio after lapse of time granted to make up deficiency of court fee to consi der the application of the petitioner for extension of, time in this regard, therefore, the petitioner has no justification to move such application. Resultantly , this petition having no merit stands dismissed . No order as to costs.