SHAHID KHAN, J.- The petitioner has called in question the judgment/order of the learned Additional District Judge-II, Swat, dated 19.06.2021, whereby, his Revision Petition was dismissed and consequently, the judgment/order, dated 13.07.2020, of the learned Civil Judge-II, Swat, in respect of affixation of Court fee by the respondent/plaintiff, was maintained.
2. In essence, the respondent/plaintiff, Fazal Mabood, approached the learned trial Court through a /is for declaration coupled with permanent injunction, etc. The defendants, including the petitioner, were summoned, out of whom defendants No. 1 to 3 appeared but later on, did not pursue the case, while rest of the defendants did not appear, as such, all of them were proceeded ex-parte.
After hearing ex-parte arguments, claim of the respondent/ plaintiff was decreed ex-parte, by the learned trial Court, vide judgment & decree, dated 19.02.2020, subject to affixation of Court fee of Rs. 3000/- within a period of 30 days, failing which it was ordered that his suit should be deemed to have been dismissed.
3. It was on 03.07.2020, when the respondent/plaintiff submitted an application before the learned trial Court for the grant of permission to deposit the Court fee as directed vide ex-parte judgment & decree dated 19.02.2020, coupled with an application for condonation of delay. The learned trial Court vide judgment/order, dated 13.07.2020, accepted both the applications and thereby, directed the respondent/plaintiff to submit the requisite Court fee that day, which he submitted accordingly.
4. It obliged the petitioner to approach the learned District Judge, Swat, through a Revision Petition, which was dismissed vide the impugned judgment/order, dated 19.06.2021, hence, the subject petition.
5. Arguments of learned counsel for the parties have been heard and the record gone through with their valuable assistance.
6. The petitioner has averred in the subject petition that while passing the impugned judgment/ order, dated 13.07.2020, the learned trial Court has issued no notice to him and as such, both the Courts below have violated the principle of administration of natural justice. In this regard, it would be relevant to mention here that admittedly, the petitioner appeared before the learned trial Court through his special attorney at the initial stage of proceedings but later on, he did not pursue it and as such, was proceeded ex-parte alongwith other defendants. On conclusion, an ex-parte decree was also granted by the learned trial Court in favour of the respondent/plaintiff, vide judgment & decree dated 19.02.2020. Till date, the said ex-parte judgment & decree has not been assailed by any of the defendants, including the petitioner before any Court of law. However, the petitioner has challenged the subsequent order dated 13.07.2020 only, whereby, the period for depositing the Court fee was extended. As such, when the petitioner has not challenged the main judgment & decree, wherein, he was proceed ex-parte, then his objection over non-issuance of notice to him in the subsequent proceedings is misconceived.
7. So far as objection of the petitioner that after passing the judgment & decree, the learned trial Court had become functus officio and it had no jurisdiction to enlarge the time for deposit of Court fee is concerned, in this regard, it is pertinent to mention here that the learned trial Court passed the ex-parte judgment & decree on 19.02.2020 and thereby, directed the respondent/plaintiff to deposit the Court fee within 30 days but he did not comply with the aforesaid direction. Rather he submitted an application on 03.07.2020, after lapse of sufficient time, for the grant of permission to deposit the requisite Court fee, wherein, he has mentioned the situation, i.e., COVID-19 Pandemic, which occurred in failure of his non-affixation of the Court fee. As such, the learned trial Court has accepted that application vide order dated 13.07.2020, by directing the respondent/plaintiff to deposit the Court fee that day. In a recent judgment rendered in the case of Syed Zahid Hussain Shah v. Mumtaz All and others reported as PLD 2023 Supreme Court 470, the Hon'ble Apex Court has held that the appellant had given sufficient/valid reasons for extending the time for payment of Court-fees, which the Court could extend u/ss. 148 and 149 CPC, and as such, his application should have been accepted by the learned ADJ, failing which the learned Judge of the High Court should have allowed the civil revision filed against that decision but the learned ADJ had acted illegally or with material irregularity in respect of the jurisdiction vested in the Court. It was also held that if Court fees was allowed to be paid, the interest of the State would have been secured, without in any manner undermining the legal rights of the opposite party. In that case, the Hon'ble Apex Court has set aside the judgment of the ADJ, whereby, he has not extended the time for deposit of Court-fees. Similarly, in the case of Provincial Government through Additional Chief Secretary (Development) Government of Balochistan, Quetta and another v. Abdullah Jan and others reported as 2009 SCMR 1378, it was held that: "It is an established practice of the higher Courts that parties should not be penalized for the negligence of their counsel or staff of the Court, because the Court Fees Act, 1870 is a taxing statute, which would be interpreted in favour of the subject. The provision of Court Fees Act and other fiscal statutes were to be construed strictly in favour of subject, because the basic object of all the statutes is to secure revenue for the benefit of the State and not to arm the litigant with the weapon of technicality. It is also an established fact that where the provision is open to two reasonably possible interpretations, then the one favouring the taxpayer should be adopted."
In Mst. Samera Butt v. Husnain Ahmad Nasir and 3 others reported as 2009 MLD 942 [Lahore], it was observed as under: "There is no substance in the argument advanced by the learned counsel for the petitioner that after passing of the decree, the learned trial Court had become functus officio and had no jurisdiction to enlarge time under section 148, CPC. Circumstances of the case as detailed above warranted extension of time by the learned trial Court under section 148, CPC, on the application of the respondent for deposit of Rs. 100, balance consideration under the decree, dated 19.09.2003."
8. In view of the above, it is held that the learned trial Court after passing the judgment & decree would not become functus officio, and as such, the learned trial Court coupled with the learned appellate Court have rightly exercised their jurisdiction vested in them. In this view of the matter, the second objection raised by the petitioner, too, is misconceived.
9. For the reasons stated hereinabove, the subject petition is bereft of any merit, as such, it is hereby dismissed.