' On 21-1-1975 the appellant instituted a suit for redemption of house No, 490 (half northern portion upper and lower) Doongar Mohalla, Sadar Bazar, Lahore Cantt on payment of Rs, 1,791 or any other amount found due under the mortgage. The suit property had been mortgaged by the appellant with the respondent for Rs, 7,000. The learned Civil Judge, by his order dated 21-7-1976, decreed the suit on payment of Rs, 17.772. Against this decision the appellant preferred an appeal before the learned District Judge. On the basis of the mortgage money as recited in the registered mortgage deed dated 25-2-1970 he affixed court-fee stamps on the memorandum of appeal. As per noting made on the memorandum of appeal by the office of the learned District Judge, the court-fee was stated to have been correctly affixed. Thereafter, by his order dated 31-7-1976, the learned District Judge assigned the appeal to the learned Additional District Judge for disposal.
2. Before the learned Additional District Judge the respondent raised a preliminary objection that the memorandum of appeal filed by the appellant was not properly stamped. A number of authorities were cited by the learned counsel for the parties which included AIR 1927 Sind 25 and AIR 1945 Born.
504. After hearing parties the learned Additional District Judge was of the view that the appellant should have paid court-fee on the amount decreed, i,e, Rs, 17,772, and not on Rs, 7.000 the mortgage amount. Consequently he dismissed the appeal by order dated 16-7-1979. The present appeal is directed against that order.
3. Learned counsel for the appellant strenuously argued that the appellant had affixed court-fee stamps of the value of Rs, 562 on the basis of the mortgage money. He next contended that the appellant could not be made to pay court-fee on the amount decreed by the trial Court and could at best be liable to pay court-fee on the amount liability whereof he wanted to avoid. He also contended that a request was made to the learned lower appellate Court to grant permission to make up the deficiency in the court-fee which was however, turned down. The learned counsel relied on Ahmad Bakhsh v. Khurshid Akbar Khan, _Jangumia Suleman Madiwala v. Hashamsaheb, Mst. Saddiqunnisa v. Khan Sahib Agha Muhammad Sultan Mirza and Muhammad Nawa: Khan v.
Makhdoom Syed Ghulam Mujtaba Shah.
4. Learned counsel for the respondent, on the other hand, has argued that ad valorem court-fee on the decretal amount was payable by the appellant on the memorandum of appeal and having not done so his appeal was rightly dismissed. He next contended that the appellant was guilty of contumacy and acts of positive mala fides and, therefore, was not entitled to be shown any indulgence by the Court to allow him to make up the deficiency in the court-fee.
5. I have heard the learned counsel for the parties at length. The admitted position is that the appellant, while filing the appeal in the Court of the District Judge had affixed a court-fee of Rs, 562, on the memoran-dum of appeal which by no stretch of reasoning can be called a fictitious amount. Besides this, the office of the District Judge had noted that proper court-fee had been paid by the appellant and he was not required at any stage to make up the deficiency in the court- fee. The appellant, therefore, cannot be said to be guilty of contumacy or acts of positive mala fides. It is an established principle of law that when there is a genuine mistake on the part of any party in computing court-fee, the Court in the exercise of its discretion as vested under section 149 C. P. C. Is to show indulgence to such a party. In the case in hand although the appellant made a request for time to make up the deficiency in the conrt-fee, the learned Additional District Judge does not appear to have considered it in a judicial manner and arbitrarily turned down the request, holding that court-fee should have been paid on Rs, 17,772 the amount decreed. This view of the learned Additional District Judge is erroneous for the simple reason that the appellant was to evaluate the memorandum of appeal to the extent of the liability he wanted to avoid. At any rate, if he was not inclined to extend time enabling the appellant to make up the deficiency in the court- fee, he was at least bound to consider the grievance of the appellant to The extent of the amount on which he had paid the court-fee. With some advantage the case reported as National Bank of Pakistan v. Mst. Malika Pukhraj (5) is cited for this proposition. In that case their Lordships observed :- "Even if it be held that deficiency in court-fee had not been made up within time, the penal clause of Order VII, rule 11 (c) of the Code of Civil Procedure was not attracted to the facts of the case for the reason that the appellant was entitled to get relief from the Court for the amount on which court-fee had already been paid.........."
The ratio decidendi of that case is fully attracted to appeals as well. Reference to the case cited above may not be interpreted to mean that the appellant's request for extension of time need not be attended to if such a request is repeated the lower appellate Court shall decide it in accordance with law. In the event of the lower appellate Court, for good reasons, feeling that the appellant is not entitled to grant of time for making up the deficiency, it shall consider the appeal to the extent of the amount on which the appellant has already paid the court-fee.
6. For the foregoing reasons and the observations as made above, I accept the appeal, set aside the order passed by the learned Additional District Judge and remand the case to him for fresh decision on the question of court-fee and also for decision on merits. The appellant shall have his costs of this appeal. PLD 1978 Lah. 838 AIR 1945 Bom 507 PLD 1972 Kar. 1031 2 3 4 1 2 3