' The petitioner was already married, when he married the respondent No.3 on 11-11-1969. A son was born out of the wedlock in 1970 and he is with the respondent-mother. The petitioner divorced the respondent No.3 on 24-3-1975. The respondent filed a suit for recovery of the dower amounting to Rs.80,000. Three witnesses appeared to depose in favour of the respondent-plaintiff and two documents Nikah Nama and an agreement Exh. D.W.1/1 and Exh.P.6 respectively were produced in support of the case of the respondent-plaintiff. The petitioner-defendant "did not tender any evidence in rebuttal except his own statement". The learned trial Court decreed the suit of the respondent for the dower of Rs.80,000, vide judgment and decree dated 23-5-1981.
2. The petitioner filed an appeal on 8-6-1981. It was dismissed for non-prosecution on 19-12-1981.
With the consent of the parties, the appeal was restored to its original number vide order dated 20-3-1983. The petitioner then filed an application before the learned appellate Court for return of the appeal for presentation before a competent Court in view of the pecuniary jurisdiction of the learned Additional District Judge. The application was allowed and the appeal returned to the petitioner by the learned Additional District Judge on 21-3-1983. The petitioner filed Writ Petition No. 1225 of 1983 against the last mentioned order which was admitted on 2-4-1983. While this was pending, the petitioner filed an application under section 114 of the Civil Procedure Code before the learned Additional District Judge for review and recall of his order of returning the appeal dated 21-3-1983, on 4-7-1983. The application was dismissed by the learned Additional District Judge on 13-10-1983. When the aforementioned writ petition came up for hearing before the High Court on 20-11-1983, it was pointed out that "the petitioner had already availed another adequate opportunity of approaching the lower appellate Court for recall" of the order whereby the appeal had been returned to the petitioner "and decision of the appeal on merits". The learned Single Judge observed that "as the petitioner has already availed another remedy by re-approaching the lower appellate Court for the redress of his grievance, this petition is dismissed on this ground alone." This is vide order dated 20-11-1983. The petitioner then filed another Writ Petition No. 5341 of 1983 on 17-12-1983 challenging the order of the learned Additional District Judge dated 13-10-1983, by which the latter had refused to recall his earlier order dated 21-3-1983. When this writ petition came up for hearing, the petitioner withdrew the same to reapproach the Additional District Judge for invoking his inherent jurisdiction for recall of the order dated 21-3-1983. The writ petition was dismissed as withdrawn on 4-4-1983. The petitioner moved an application under section 20 of the General Clauses Act before the Additional District Judge for withdrawal of the ing his memorandum of appeal vide order dated 21-3-1983, on 9-4-1983. The application was allowed and the appeal ordered to be registered on its original number by the learned Additional District Judge vide order dated 11-7-1984.
3. When the appeal came up for hearing, it was dismissed by the Additional District Judge on the ground that the decree sheet attached with the memorandum of appeal bore a court-fee of Re. 1 instead of Rs.2 as required by Court Fees Act of 1887 Schedule I, Article 6. This is vide order dated 8-11-1984. This was challenged by the petitioner through the aforetitled Constitution petition filed on 26-11-1983.
4. When the petition came up for preliminary hearing on 7-12-1984, the learned counsel for the petitioner relied on Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289 to contend that the first appellate Court should have granted time to the petitioner for making up the deficiency in the court-fee. Notice was issued.
5. The respondent filed written statement pointing out that the petitioner had earlier filed two writ petitions which were dismissed. Copies of the orders were annexed. Learned counsel for the parties were asked to give all the facts in chronological order and produce documents in proof thereof. It is after hearing them and perusing the documents that the facts stated in para. 2 above have been found. In the Constitutional petition in hand, not a word was said that the petitioner had withdrawn his appeal against the judgment and decree of the learned trial Court, on 21-3-1983 and that his application to re-call the order and re-admit the appeal was dismissed on 13-10-1983, nor any mention was made of the two writ petitions aforementioned filed in the High Court. The present writ petition was endorsed with a certificate that "this is the first writ petition filed by the petitioner on the subject-matter before this Honourable Court." Now this is quite incorrect. Learned counsel for the petitioner states that he was not informed about the two previous writ petitions having been filed in the High Court. The petitioner who has been present in Court stated that he had told everything. Whatever the position may be, it is quite obvious that the entire set of facts were not stated in the petition nor brought to the notice of the Court when the writ petition came up for preliminary hearing. The facts abovementioned, were, relevant and material. For suppression of material facts, the petition is liable tc dismissal.
6. Another fact to be noticed is that the petitioner had filed an application in the appellate Court to return his appeal and it was, accordingly, done by the Additional District Judge, Gujrat, on 21-3- 1983. The application dated 4-7-1983 to re-call the order and to re-admit the appeal was dismissed by the learned Additional District Judge, Gujrat, on 13-10-1983. Against this order, Writ Petition No. 5341 of 1983 was filed which was withdrawn on 17-12-1984 to re-approach the learned Additional District Judge for invoking his inherent jurisdiction for re-call of the order dated 21-3- 1983. The writ petition was dismissed as withdrawn. There was no question of invoking the inherent jurisdiction of the learned Additional District Judge of re-call of his order dated 21-3-1983, by which on the request of the petitioner the appeal had been returned to him and his application to re- admit the appeal had already been dismissed on 13-10-1983. An application under section 20 of the General Clauses Act for withdrawal of the ing the memorandum of appeal dated 21-3-1983 was filed before the Additional District Judge on 9-4-1984 which was allowed and appeal ordered to be registered at its original number by him on 11-7-1984. It may be noticed here that the learned Additional District Judge was not aware that he was re-calling his order dated 21-3-1983 when the application to re-call that order had already been dismissed on 13-10-1983 and that order had become final. He was not aware of the latter order, viz., 13-10-1983, nor, has he said a word about that in his order dated 11-7-1984.
7. When he heard the appeal after re-calling his earlier order of return of the appeal dated 21-3- 1983, the learned Additional District Judge dismissed the appeal on the ground that the decree attached with the appeal was deficient in court-fee by Re.
1. The petitioner challenged the order by means of the aforetitled Constitution petition and the learned counsel for the petitioner submitted that he should have been allowed time to make up the deficiency in court-fee in view of the judgment of the learned Supreme Court reported in PLD 1984 SC 289. Learned counsel for respondent No.3 was asked as to how could he support the impugned order. He submitted that the petitioner was not entitled to relief because, firstly, the petitioner has suppressed material facts of the litigation in the writ petition and secondly, the proceedings before the learned Additional District Judge are a result of non-application of mind to the facts of the case. The learned Additional District Judge should not have allowed the application under section 20 of the General Clauses Act for re-call of the order, dated 21-3-1983 by which the memorandum of appeal had been returned to the petitioner on his request, vide his order, dated 11-7-1984 when the earlier application for recall of the order dated 21-3-1983 had already been dismissed by the learned Additional District Judge on 13-10-1983. The fact that the respondent had not challenged the order of the learned Additional District Judge restoring the appeal to its original number dated 11-7-1984 would not confer jurisdiction on the appellate Court when the appeal had already been returned and the application to readmit it had been rejected.
8. Learned counsel for respondent No.3 is right in his first contention that there is suppression of the material facts. The second contention that the second application for re-call of the order dated 21- 3-1983 should not have been allowed when an earlier application for the same purpose had been dismissed on 13-10-1983, vide order dated 11-7-1984, is also correct as far as it goes but it has to be noted that the respondent never challenged this order dated 11-7-1984 by which the appeal was restored to its original number. By inaction jurisdiction is, of course, not conferred. But there was no lack of jurisdiction but confusion that all facts were neither brought to the notice of the learned Additional District Judie nor he found those. The learned appellate Court has thrown out the appeal on the ground that the decree sheet attached with the memorandum of appeal carried court-fee stamp of Re. 1 instead of Rs.2. He did not call upon the petitioner to make up the deficiency nor allowed him to do so as required by the judgment of the learned Supreme Court of Pakistan in the case Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289. He should have allowed that and then determined the appeal. It was the first appeal. It required determination of all points. That has not been done. Suppression of material facts was there but for just decision and safe administration of justice, it appears that the petitioner is allowed to make up the deficiency in the court-fee of Re. 1 and then his appeal is determined. Of course, the respondent will be entitled to contest the same on all points--legal or factual. The petition is thus allowed but in the circumstances the parties shall bear their own costs.
Writ issued.