CH. MUHAMMAD MASOOD JAHANGIR, J. Inessential detail apart, respondent No.1 (Mumtaz Ali) and respondent No.1-B (Mst. Gui Nargas) were brother and sister inter se, whereas respondent No.1-A (Muhammad Ghaffar) was husband of the latter/brother-in-law of the former. Mumtaz Ali/respondent No.1 (plaintiff) on 02.10.2003 instituted suit for declaration and cancellation of documents besides recovery of possession while asserting that he was actual owner and that Sale Deeds (Exh.P1 to Exh.P19) executed/registered in favour of respondents No.1-A and 1-B were mere benami documents, thus liable to be modified as well as inoperative upon his rights. It is pertinent to note that not only per para No.45 of the plaint, the plaintiff fixed ten million rupees as value of the suit for purpose of court fee, rather affixed the court fee of Rs.15000/- on the plaint. The respondents Nos.1-A and 1-B though contested the suit by submitting written statement, yet subsequently disappeared thus ex parte decree dated 30.10.2011 was passed. The respondents o.1- A and 1-B though made application under section 12(2), C.P.C. for setting aside of said decree, yet it unanimously regretted by learned Civil and District Courts vide concurrent &tiers dated 17.09.2013 and 03 06.2015 respectively, which were not assailed any further, therefore stood final to their extent. It was matter of record that Syed Zahid Hussain (petitioner) being subsequent transferee of some of the decretal property referred second petition under section 12(2), C.P.C. for setting aside f decree dated 30.10.2011, which though was dismissed by Court of first instance via order dated 17.09.2013, yet the Civil Revision was allowed on 03.06.2015 and para-8 of said judgment being relevant is reproduced hereunder:- "As far as mentioning of particulars of purchase of land by Zahid Hussain petitioner is concerned, he has given details in his arguments and mutation regarding sale transactions are available on the file. As far as non-mentioning of particulars of sale in the application under section 12(2), C.P.C. are concerned, counsel for the petitioner has rightly explained that he could not do so because detail of particular of the disputed property were not mentioned in the plaint by the respondent/plaintiff. Anyhow, this is the fact petitioner has purchased certain land from the disputed one. As far as application of principle of lis pendens is concerned, of-course suit was filed in the year 2003 and sale transaction in favour of the petitioner are subsequent to filling of the suit but it is matter of inquiry. Learned trial court is to see as to whether he was bona fide purchaser without knowledge of pendency of the suit of Mumtaz All respondent. Here another question arises as to why Mumtaz Ali did not make party to the petitioner in the suit in spite of the fact that mutations were attested by the vendor in his favour. In such like situation I am of the opinion that learned trial court has not considered all the facts and circumstances of the matter in depth. There are valuable rights of the petitioner. He has every right to defend the mutations allegedly attested in his favour. Impugned order is against the, law and the facts and the same is set-aside. Petition is accepted. Suit will deemed pending, learned trial court will decide the suit after impleading Zahid Hussain as defendant. Mumtaz Ali is directed to submit amended plaint there."
Although respondent No.1 preferred W.P. No. 2383/2015 before this Court, yet declined on 21.02.2017, thus in compliance thereof, plaintiff filed amended plaint, wherein the petitioner was not only added as one of the defendants, rather seven mutations sanctioned in his favour were also challenged. The latter, obviously submitted contested written statement, but para No.45 of the plaint qua valuation of the suit for purposes of Courage and its affixation was not disputed.
2. In this cycle of proceedings, respondents Nos.1-A and 1-B (the original defendants) were again proceeded against ex pane, however as a result of trial faced by plaintiff and petitioner, the suit decreed vide Judgment dated 30.10.2019. The petitioner being aggrieved though within requisite limitation preferred appeal, yet without affixation of court fee. The record stands for that via interlocutory order dated 10.03.2020, petitioner was asked to furnish the court fee, but never provided, Nevertheless , the appeal conditionally was allowed and suit regretted via decision dated 19.06.2020 requiring the petitioner to affix the court fee of Rs.15 000/- within thirty days, failing which the appeal would deem to be dismissed. The relevant para-33 thereof is given below:-
33. Nutshell of the above discussion is that impugned Judgment is based upon misreading and non-reading of evidence and record and was passed in oblivion of settled principles of law is hereby set-aside. Appeal succeeds suit of the plaintiff if hereby dismissed with costs. It has been found from perusal of memorandum of appeal that court fee of Rs.15,000/-laviable on it is not appended. Appellant is directed to affix the court on the memo of appeal within 30 days, failing which the appeal shall be deemed to hate been dismissed.
The plaintiff being aggrieved while affixing court fee filed connected C.R. No.306/2020, wherein the operation of judgment dated 19.06.2020 was not suspended, rather the parties to the lis were directed to maintain status quo with regard to subject property. It was a hard fact that despite the decision dated 19.06.2020 entailing penal consequences, the petitioner did not affix the Court fee within the provided period, rather much thereafter on 16.12.2020, the petitioner tabled application under sections 148, 149 and 151 of C.P.C. for enlargement of time to levy court fee before learned Additional District Judge (who passed the judgment dated 19.06.2020). Its paras-2 and 3 being important are given below:-
2. That after passing of decree, due to pandemic Covid-19, the courts were closed as the summer vacations were started and reopened in September, 2020. Meanwhile, the respondent (Mumtaz Ali) preferred civil revision before Honourable Lahore High Court, Rawalpindi Bench, Rawalpindi and injunction order was passed, therefore, the applicant/appellant got Impression that after ji 1 decision of Honourable High Court, the court fee will be deposited. Besides this due to pandemic Covid-19, the financial condition of applicant/appellant became so-weak. However, the applicant/appellant is still ready to fulfill his liability and seeks enlargement of time for deposit of court fee.
3. That the non-deposit of court fee is not intentional but due to the reason mentioned above and it is intention of law that the technicalities should not be allowed to become a stumbling block in the way of justice. Even otherwise, valuable rights of the applicant/appellant are involved in the case, therefore, in the interest of Justice, the applicant/appellant be allowed to deposit the court fee.
It is, therefore prayed that the time for despot(sic deposit) of court fee may be enlarged and applicant may be allowed to deposit the court fee, in the interest of Justice. but same was rejected vide impugned order dated 08.01.2021 while observing as under:- As the period fixed by this court for levying the court fee expired on 20.07.2020 and no application for extension of time to deposit court fee was made by the petitioner within said prescribed time, therefore, this court has now become flinctus-officio and for the reason of ratio decided in the case of Saddique Khan and two others versus Abdul Shakoor Khan and another reported as PLD 1984 SC 289, this application is dismissed,"
It caused the petitioner to approach this Court through cited Revision Petition.
3. Despite issuance of repeated notices to respondents Nos.3, 4 and 9B to onward none appeared, who are proceeded ex parte, whereas respondents Nos.3, 4 and 1-A, 1-B were already declared as such.
4. Arguments heard and record perused.
5. The history emerging from present record as narrated in paras Nos.1 and 2, left no doubt that since inception of the litigation, the plaintiff specifically fixed ten million rupees as value of his suit for the purpose of court fee and jurisdiction, who per demand of law levied its maximum quantum as well. This fact throughout was never disputed, thus remained unchanged. The petitioner, who was obliged to file the appeal while levying court fee of Rs.15,000/- (as did upon the plaint) preferred the same without its affixation and even did not provide when during pendency thereof learned Additional District Judge (seized of the appeal) vide interim order dated 10.03.2020 specifically reminded him in this behalf, but no heed was paid. The Appellate Court below while accepting appeal via order dated 19.06.2020 once again required the petitioner to provide court fee within next thirty days, which was the last chance (otherwise his appeal would deem to be dismissed), but said condition was not fulfilled, whereas the petitioner acted recklessly and contumaciously. Via petition so made for enlargement of time, it was not stance of the petitioner that said condition was not in his knowledge, whereas grounds given therein (reproduced earlier) were neither sufficient nor supported by any material to grant the prayer. Reliance can be placed upon judgment of this Court reported as Muhammad Tariq and others v. Amjad Ali and others (PLD 2018 Lahore 502), wherein it was concluded that:- "3. Through their suit, the petitioners claimed themselves to be the owners of property valuing at least Rs.2000000/- on the basis of alleged at and under the law, valuation of the suit for the purposes of court fee was to be affixed by them 41 per its market price, but at the time of its institution, they fixed its value for that purpose only Rs.24000/-, however, subsequently on debriefing of learned Civil Court as per requirement of section 7(iv) (a) of the Court Fees Act, 1887, the maximum court fee of Rs.15000/- was furnished. It was amazing that after the dismissal of sulk by the learned Civil Court, despite the fact that while filing appeal, Rs.200000/- was fixed its value for that purpose, but this time again without affixation of any court fee. The petitioners were very much aware what stamps of court fee they had to finish and no confusion was in their way in this regard. The submission of Ch. Sameed Ahmed Wains, Advocate for the petitioners that learned lower Appellate Court prior to dismissal of appeal did not direct the petitioners to levy the requisite Court fee is not well founded. It was not the case where situation with regard to the fixation of valuation of the lis was foggy or tangled and the petitioners were required any clarification. As observed supra, not only the valuation requiring affixation of maximum Court fee was determined by them rather they on the asking of Court of first instance without objection axed it on their plaint.
The study of memorandum of appeal again affirmed that they were certain that Court fee of the highest value was to be affixed, but they remained mum for more than two years, hence they were not only negligent, but their conduct was contumacious and there existed no reason to extend any indulgence to them to make good the court fee and that too beyond the period of limitation. The appeal remained pending for more than wo years and ten months but despite the fact that learned lower Appellate Court time and again required the court fee, but the deficiency was not made good. The provision of section 149 of the Code of Civil Procedure, 1908 cannot be extended for relaxation of limitation beyond the prescribed period. Reliance is placed on Mrs. Safia Siddiq v. Haji Ferzal-ur-Rehman and 2 others (2009 CLC 262) and Assistant Commissioner and Land Acquisition Collector, Badin v. Haji Abdul Shakoor and others (1997 SCMR 919). Apart from that, no legitimate planation was provided as to why the petitioners failed to affix court fee well within limitation of filing of appeal, therefore, learned Addl. District Judge was perfect to non- suit them through the impugned order,"
Moreover, it is an established proposition of law that an appeal is deemed to be filed only on the day, when the deficiency in the court fee B is made up. See Balvant Singh v. Jagit Singh (AIR 1947 Lahore 210), H. Feldman v. Province of East Bengal (PLD 1970 Kar. 295), Mst, Walayat Khatun v.
Khalil Khan (PLD 1979 SC 821), Muhammad and others v. Allah Dicta (PLD 1981 Lahore 293), State Life Insurance Corporation of Pakistan v. Messrs Zainab Khatoon and S others (1997 PLC 489), Assistant Commissioner and Land Acquisition Collector, Badin v. Haji Abdul Shakoor and others (1997 SCMR 979) and Almas Ahmad Faiz v. Secretary, Government of Punjab Housing and Physical Planning Development Lahore (2006 SCMR 783). The rule enunciated therein clearly lays down that discretion in terms of section 149 of C.P.C. cannot be allowed to be extended after expiry of period of limitation as condonation of delay to pay the court fee thereafter tantamounts to destroy the said provision.
6. In addition thereto, this Court is of the view that enlargement of period per provisions, whereunder ongoing application filed, could be granted within the time bracketed by the Court while passing the final verdict. In the case in hand, through decision dated 19.06.2020, the petitioner was awarded thirty days for making the deficiency good, which started to run since 20.06.2020 and ended on 20.07.2020. The moment said last day was over, the Court (which granted time) became functus officio, thus was no more alive to extend the time. Any such move could be made and considered within those thirty days, which were provided to fulfil the condition so imposed. The petitioner, undoubtedly acted recklessly and being contumacious was liable to be knocked out because his negligent attitude accrued vested right to his contestant.
7. The case law reported as Tarachand Mondal and others v. Hazari Shaikh and another (PLD 1967 Dacca 203), Mst. Walayat Khatun v. Khalil Khan and another (PLD 1979 SC 821), Muhammad and-others v. Allah Dina (PLD 1981 Lahore 293), Mst. Samera Butt v. Husnain Ahmad Nasir and 3 others (2009 MLD 942), Hafiz Muhamnad Mubeen through Legal heirs v. Government of Sindh through Deputy Commissioner, Sukkur and 5 others (2014 MLD 419), Hari Raja Muhammad Akram and others v, Rica Ahmad and others (2015 MLD 477) and Habib Akbar v. Pir Azam Syed (2017 YLR 26) referred by learned counsel for the petitioner being distinguishable is not applicable to the fact circumstances of instant case.
8. Syed Aqeel Abbas Kazmi, Advocate for the petitioner while consuming maximum time argued the case to best of his ability, who not only failed to Justify the contumacious conduct of his client, but also remained unable to persuade this Court to interfere with the order impugned herein, which is maintained and Civil Revision being meritless is dismissed.