' This regular second appeal arises out of the judgment and decree dated 11-6-1981 of the learned Additional District Judge, Sargodha, in a suit for specific performance.
2. Sole question of law urged in this appeal is that value of appeal before the learned Additional District Judge for the purposes of court-fee was shown as. RS,30,000 but no court-fee was paid thereon on the ground that it stood remitted under Notification No, 353-80/248-ST-I, dated 4-2- 1980 which provides that in exercise of the powers conferred by section 35 of the Court fees Act, 1870, the Governor of the Punjab in partial modification of the Punjab Government Notification No, 1487-78/ 1800-ST-I, dated the 9th July, 1978, is pleased to remit court-fee on any civil and revenue suit the value of the subject-matter whereof, or of the relief claimed therein, does not exceed twenty-five thousand rupees, at all stages, in all Courts, including revenue Court, and on complaints in criminal cases.
3. Learned counsel for the respondents has raised objection as to the maintainability of the appeal, in that, in terms of section 102(b) C.P.C., as amended by Ordinance No, X of 1980, the regular second appeal is competent when the amount or value of the subject-matter of the original suit exceeds fifty thousand rupees. In the instant case, subject matter of the suit is less than fifty thousand rupees, therefore, revision petition would be competent. At the oral prayer of learned counsel for the appellants, this petition is converted into a revision. The preliminary objection is disposed of accordingly.
4. Learned counsel for the respondents frankly conceded that memorandum of appeal was not exempted from court-fee under the said notification. He, however, argued that in view of the ratio laid down in Chedi Lal and another v. Kirath Chand I L R 11 All. 682, if a document which ought to bear a stamp under the Court Fees Act has been used in the High Court, and the mistake or inadvertence which permitted its reception in a lower Court, without being properly stamped, comes to light in the High Court, any Judge of that Court may, under section 28 of the Court Fees Act, direct that it should be properly stamped. Reliance was also placed on Mst. Parveen v. Mst.
Jamsheda Begum PLD 1983 SC 227 to contend that in case of insufficiency of court-fee, the memorandum of appeal could only be rejected under clauses (b) and (c) of rule 11 of Order VII, C.P.C., where the party being required by the Court to supply the requisite stamp paper within the time to be fixed by the court, failed to do so. Learned counsel for the respondents, however, offered to make good the deficiency now.
5. The precedents cited at the Bar on closer examination are not found to be helpful in this case.
The question as to whether or not the petitioner, before the lower appellate Court, was entitled to the grant of extension of time under section 149, C.P.C., was neither, raised nor considered. This being so, the appeal could not have been dealt with on merits by the learned Additional District Judge. The decision on merits of the appeal was, therefore, a nullity in the eye of law.
6. It is true that the Court could in its discretion allow time to a party to put in the deficient court-fee at any stage, depending upon the facts and circumstances of each case provided the party seeking such discretionary order is not guilty of contumacy or positive male fide. Refer Shahna Khan v. Aulia Khan, Civil Appeal No, 184 of 1980, decided by the Supreme Court on 21-11-1983. The notification exempting court-fee does not suffer from any ambiguity. The respondents themselves valued the memorandum of appeal at RS,30,000 whereas the exemption extends to plaints etc. Where the relief claim does not exceed RS,25,000. It is, therefore, not possible to understand how the Advocate of the respondents before the District Judge assumed that the appeal was exempted from court-fee. Clearly, the respondents counsel acted with gross negligence in filing the appeal in the District Court. Furthermore, this appeal was admitted to a regular hearing on 13-7-1981 to examine this point. The execution of the impugned decree was also stayed subject to notice, but the respondents did not seek extension of time for paying requisite court-fee. It is, therefore, not a fit case for invoking the provisions of section 149 C.P.C. At this belated stage.
' For the foregoing reasons, the impugned judgment and decree dated 11-6-1981 of the learned Additional District Judge, Sargodha, is set aside and that of the trial Court is upheld. The revision petition is accepted but there shall be no order as to costs.