MUHAMMAD AMEER BHA TTI J.--- I he Ores of orders dated 02.06.2010 and 21.10.2010 passed by both the learned Court', been called-in-question through this constitution petition.
2. Brief facts of the case are that the suit for possession under Section 9 of the Specific Relief Act filed by respondent No.3 was resisted by the petitioners by filing an application under Order VII Rule II, C.P.C. inter alia on the ground that the deficiency in Court-fee was not satisfied within the time stipulated by the Court; hence the plaint was liable to be rejected. The said application was opposed by the respondent/plaintif f claiming that order of the Court was complied with. Consequently , the learned trial Court vide impugned order dated 02.06.2010 refused to reject the plaint by dismissing petitione rs' application holding that the Court-fe e was although furnished after stipulated time but it was purchased within the fixed time, therefore, any negligence on the part of respondent/plaintif f for not furnishing it within the stipulated time, does not affect merits of the case, as intention of plaintif f/respondent is clear from the date of its issuance and for this reason, the act of respondent/plaintif f could not be termed as contumacious. Aggrieved from the order of the learned trial Court, the petitioners preferred revision petition which too met with same fate when the learned Addl. District Judge vide his order dated 21.10.2010 dismissed the same observing that the learned trial Court had not committed any illegality or irregularity while dismissing petitioners' application under Order VII Ruler II, C.P.C. considering the date of issue of Court-fee a valid stance taken by the respondent/plaintif f to establish that he was conscious about obedience of the order of Court to make-up deficiency in Court-fee within the set time; hence this constitution petition.
3. Learned counsel for the petitioners while relying upon Mubarak Ahmad, etc v. Hassan Muhammad (2002 SCJ 172) and Ch. Javed lqbal v. Mst. Zainab Bibi and 8 others 2005 CLC 197 (Lahore) contends that both the learned Courts below failed to consider the law laid down by Hon'ble Supreme Court as well as this Court inasmuch as non-fulfillment of deficiency of court fee within the time stipulated by the Court, the Court had no option except to reject plaint declaring the act of the delinquent as contumacious, therefore, both the learned Courts below have failed to exercise the jurisdiction vested with them within the parameters framed by Hon'ble Supreme Court as well as this Court in the judgments referred ibid, hence the orders impugned are nullity in the eye of law and same may, be set-aside declaring the same illegal, unlawful and in consequence whereof the plaint of the suit may be rejected by accepting application under Order VII Rule I I, C.P .C.
4. I have heard learned counsel for the petitioners and gone through the record.
5. Admitted position is that direction was issued by the learned trial Court vide order dated 29.06.2007 to make-up deficiency of court fee prior to next date of hearing i.e. 25.07.2007 and in compliance of said order , respondent/plaintif f purchased requisite court-fee on 17.07.2007 as is reflected from the impugned orders.
However , to ensure it, this Court vide order. dated 08.12.201 1 issued direction to the learned trial Court to submit report alongwith certified copy of the stamp papers available in the record of the learned trial Court for verification of the date of issuance of stamp papers which accordingly was received from the learned Senior Civil Judge on 21.12.201 1, examination whereof reveals that the same were purchased on 17.07.2007 i.e. prior to date fixed by the learned trial Court, which is sufficient evidence qua intention of plaintif f/respondent to conclude that the order of learned trial Court has been faithfully complied with although the same were not submitted in the Court before the target date i.e. 25.07.2007 on which date the case was adjourned for 23.09.2007 without taking any notice of non- deposit of court-fee. Record further revea ls that the court-fee was furnished on 24.09.2007 without any objection from the Court which amounts to its acce ptance. It is true that for granting permiss ion to make-up the deficiency in Court-fee, the Court shall consider all relevant facts and circumstances of the case and if the act of the plaintif f is found contumacious towards compliance of its order , the plaint of the plaintif f shall be rejected straightaway . In this regard, the Court has to determine as to whether the mistake of non-deposit of court-fee within the time stipulated was due to inadvertence, negligence or carelessness and if bonafide has been proved for making-up deficiency in Court fee, then delay in furnishing court-fee could be condoned.
6. Keeping in view the criteria laid down by Hon'ble Supreme Court, I am of the view that mere non-furnishing of court-fee within the stipulated period was due to inadvertence or bonafide mistake of plaintif f/respondent because he had already purchased the stamp papers but owing to some relaxed attitude, the same remained in brief of counsel and could not be submitted in the Court despite its purchase much prior to the target date of depositing of court-fee, therefore, lam of the view that both the learned Courts below have not committed any illegality or irregularity while rejecting the application under Order VII Rule 11 CPC filed by the petitioners/defendants tier rejection of plaint. Thus, this petition having no merit stands dismissed. No order as to costs.