' This civil revision is directed against the judgment and decree dated 8-12-1986 passed by Additional District Judge, Gujrat dismissing the etitioner's appeal on the ground of non-payment of court-fee on the decrement.
2. Facts necessary for the disposal of this petition, briefly stated, are that Ghulam Qadir son of Imam Din respondent No,5 was the owner of land measuring 3 Kanals 17 Marlas comprised in Khasra No,308 situate in village Malka, tehsil Kharian, District Gujrat. He sold 1 Kanal 3 Marlas out of this Khasra to Muhammad Din, the predecessor-in-interest of Walayat Khan petitioner and respondents Nos.10 to 14 vide mutation dated 14-11-1971. He sold another 12 Marlas out of the said Khasra number to Muhammad Sadiq respondent No,1 herein through a registered sale-deed dated 2-12-1980. It appears that dispute arose between the vendees with respect to the area respectively purchased by them out of the aforementioned Khasra number which resulted in litigation between them. Respondent No,1 brought a suit against the present petitioner and other respondents for possession of 12 Marlas of land purchased by him from Ghulam Qadir alleging that he had taken possession of the suit area from its previous owner but was illegally and forcibly dispossessed therefrom by Walayat Khali the petitioner, his two brothers, respondents Nos.10 and 11 and respondents Nos.2 to 4. Petitioner and other legal heirs of Muhammad Din i,e, respondents Nos.10 to 14 also filed a suit for declaration and permanent injunction assailing the validity of the afore- referred sale made by Ghulam Qadir in favour of Muhammad Sadiq respondent No,1.
3. Both the suits were consolidated as they were between the same parties and the piece of land forming the subject-matter of controversy was also the same. Learned trial Court framed consolidated issues arising from the two suits and after recording the evidence led by the parties decreed the suit of respondent No,1 and dismissed that of the petitioner and his other co-heirs vide judgment dated 19-2-1986.
4. Petitioner, his mother and two sisters preferred an appeal against the judgment and decree of the trial Court. Accompanying the memorandum of appeal were two decree-sheets, one prepared in the suit of respondent No,1 and the other in the suit of the petitioner and his co-heirs but the court-fee stamp was affixed only on one decree-sheet. C.O.C. Gave a note on the memorandum of appeal on 1-3-1986 that the decree-sheet (obviously the one unstamped) required the court-fee of Rs,2. Case of the petitioner is that the note/objection of the C.O.C. Was never pointed out to him or his counsel nor was he ever called upon to pay the requisite court-fee on the unstamped decree-sheet and that he came to know of the omission only when his counsel inspected the file and immediately thereafter, requisite court-fee was paid by affixing an additional stamp of Rs,2 on the application which the learned counsel moved before the Additional District Judge the same day stating therein that the requisite court-fee on the decree-sheet was paid and the same be placed on the file. Additional District Judge allowed this application "subject to all just exceptions and objections, if any, by the opposite-party " At the time of final hearing of the appeal, however, the learned Additional District Judge observed that the petitioner in his application made on 5-11- 1986 had stated that the court-fee of Rs,2 had been paid on the decree-sheet "But in spite of ii, no court-fee is affixed on the decree-sheet". Counsel for the petitioner sought to explain before the Additional District Judge that the application made on 5-11-1986 bore the court-fee of the value of Rs,4 which included the court-fee payable on the decree-sheet. It was also argued before the Additional District Judge with reference to the case reported in 1985 CLC 2877(Lahore) that the petitioners' appeal could not be thrown out without affording him an opportunity to make up the deficiency in the court-fee. Learned Additional District Judge repelled this contention with the observation that the petitioner had made no request for making good the deficiency and instead submitted an application bearing court-fee stamp of Rs,4. Regarding the petitioner's argument that the application dated 5-11-1986 also bore the court-fee stamp which was to be affixed on the decree-sheet, the learned Judge observed that the deficiency in court-fee was made good after the period of limitation for filing the appeal and relying upon AIR 1935 Lahore 124(2) where it was held that an appeal accompanied by an insufficiently stamped decree would be deemed to have been filed for the purpose of limitation only on the date when it is filed again with properly stamped decree, proceeded to dismiss the appeal summarily vide the impugned judgment.
5. Learned counsel appearing in support of this petition submitted that it was through sheer inadvertence that the court-fee stamp was not affixed on one of the two decree-sheets appended with the memorandum of appeal and that as soon as the petitioner came to know of this omission which was detected by his counsel on inspecting the file, he paid the requisite court-fee of Rs,2 by affixing an additional stamp of that value on the application dated 5-11-1986 which was moved before the Additional District Judge for placing the deficient court-fee on the file. Learned Additional District Judge was, therefore, not right in dismissing the appeal on account of non- payment of court-fee on the decree-sheet and he was also wrong in holding that since the deficiency was made good after the expiry of the period of limitation for filing the appeal, the appeal would be deemed to have been filed on the date the decree-sheet was properly stamped.
According to the learned counsel, reliance of the learned Additional District Judge on AIR 1935 Lahore 124(2) was misconceived as the precedent case was distinguishable on facts. Learned counsel further contended that the note of COC regarding the non-payment of court-fee on the decree-sheet was never pointed out to the petitioner or his counsel. Even the learned Additional District Judge when admitting the appeal to regular hearing did not point out the deficiency nor did he call upon the petitioner to pay the requisite court-fee on the decree-sheet. It was submitted that the appeal of the petitioner could not be dismissed on the ground of nonpayment of court-fee without first giving him an opportunity to make up the deficiency in the court-fee. In support of his submission, learned counsel relied upon Syed Muhammad Yousaf Shah v. Additional District Judge, etc. 1985 CLC 2877, Zafar All Mirza v. Mst. Kulsum Begum 1989 CLC 1211 and Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289.
6. Learned counsel appearing for respondents Nos.1 and 9 did not controvert the factual position aforenoted but he submitted that the fact remained that despite the order of the learned Additional District Judge allowing the petitioner's application for payment of court-fee, the decree- sheet remained unstamped. Learned counsel for the respondent also raised an objection that the appeal against the judgment and decree of the trial Court was not filed by all the legal heirs of Muhammad Din in so far as two of the petitioner's brothers (respondents Nos. 10 and 11 herein) did not join as appellants and even the present revision petition was filed by the petitioner alone.
Learned counsel relying upon 1981 Law Notes (NUC) (SC) 214 contended that the appeal and the revision petition were not properly constituted and that the judgment and decree of the trial Court having become final qua the non-appealing parties could not have been set aside at the instance of only some of the legal heirs of Muhammad Din.
7. Before proceeding to examine the contentions of the learned counsel for the parties, it would be appropriate to clarify that the memorandum of appeal was accompanied by two decree-sheets and not three as erroneously stated by the learned Additional District Judge. The third copy, it was stated by the learned counsel for the petitioner, was an additional photo copy of a decree-sheet.
Be that as it may, it was only one decree-sheet appended with the memo. Of appeal which did not bear the requisite court-fee of Rs,2. This omission was obviously inadvertent. It could not have been intentional because it does not stand to reason that the petitioner who had paid the court-fee on one decree-sheet would deliberately avoid payment thereof on the other particularly when it involved only a paltry amount of Rs,2. In fact, it was neither held by the learned Additional District Judge nor was it the contention of the respondents that non-payment of court-fee on the decree was intentional or deliberate. That being so, the defect/deficiency in question could well be remedied under section 28 of the Court Fees Act which provides that if any document is through mistake or inadvertence received, filed or used in any Court or office without being properly stamped, the Presiding Judge or the head of the office, as the case may be, or in the case of a High Court any Judge of such Court, may, if he thinks fit, order that such document be stamped as he may direct; and, on such document being stamped accordingly, the same and every proceeding relative thereto shall be as valid as if it had been properly stamped in the first instance. On the language of the provision, the matter no doubt seems to rest in Court's discretion but the legal position is fairly well settled that if a document required to bear a court-fee stamp of specified amount is inadvertently presented/received in Court without being properly stamped, an opportunity has to be given to the party concerned to pay proper court-fee. In Nur Ahmed v.
Muhammad Jan PLD 1972 Peshawar 164 where the memorandum of appeal affixed with deficient court-fee stamps was received by the office through "an indavertent mistake", it was held that the defect in deficiency of court-fee could be remedied under section 28 of the Court Fees Act by calling upon the appellant to make good the deficiency. Similarly, in the case of Muhammad Sher v. Muhammad Khan PLD 1975 Lahore 1016, this Court while dealing with the objection with regard to the improper court-fee stamp affixed on the copy of the judgment held that the document was received in Court through mistake and inadvertence and, therefore, in exercise of the power under section 28 of the Court Fees Act directed that "the document be stamped with the one eight annas stamp supplied by the appellant (at the later stage)". Supreme Court of Pakistan while stating the well-accepted rule about Court's attitude towards the collection of court-fee as agent of the State was pleased to observe in Siddique Khan's case (supra) "the Court Fees Act like the other fiscal statutes is to be construed strictly and in favour of the subject; and that it was passed with the object of securing revenue for the benefit of the State and not to arm a litigant with a weapon of technicality to harass his opponent " In the same judgment, it was held at page 321-322, "It is true that the 'documents' mentioned in various sections including sections 4 and 6 cannot be filed/received unless "proper fee" is paid, therefor. Section 28 is a general consequential and remedial but residuary provision in that behalf, but 'proper' stamp is the subject thereof. There is no watertight compartlisation that it is only the duty of the litigant to look into the what is proper fee or proper stamp and not of the public functionaries concerned. Where one's duty ends the other's starts. It is also not difficult to visualise that the 'obligation' and 'function' are complementary to each other". Following the dictum of Supreme Court in the case of Siddique Khan, this Court held in Syed Muhammad Yousaf Shah v. Additional District Judge etc. 1985 CLC 2877 that the appeal could not be thrown out on the ground that the decree-sheet attached with the memorandum of appeal carried court-fee stamp of Re.1 instead of Rs,2 without calling upon the petitioner to make up the deficiency and allowing him to do so. Similar view was taken in the case from Karachi High Court reported in 1989 CLC 1211 and it was held therein " whenever a document requiring to be stamped is presented in a Court without the proper court-fee stamps, it is the duty of the Court and its officials to point out the deficiency to the party presenting the document and to allow him some time to make up the deficiency".
8. In the present case, it is an admitted position that the fact of the decree-sheet not being affixed with court-fee stamp of Rs,2 was never pointed out to the petitioner nor was he called upon either by the learned Additional District Judge or by the ministerial staff to pay the requisite court-fee. On the other hand, the petitioner himself on detecting the omission moved the application before the appellate Court on which he affixed an additional court-fee stamp of Rs,2 and requested that it may be placed on the file. Learned Additional District Judge allowed this application but at the time of final hearing of the appeal took a hypertechnical view and observed that since the court-fee stamp was not affixed on the decree-sheet itself, requisite court-fee was still unpaid. This objection was merely of a formal and technical nature which had no substance in it. Law is fairly well settled that the object of the Court Fees Act is to secure the revenue for the benefit of the State and its provisions are not to be used for non-suiting a party on account of some technical/procedural defect/omission. Petitioner having affixed an additional court-fee stamp of Rs,2 on the application for the purpose of decree-sheet (which fact is not disputed by the Additional District Judge) had certainly paid the requisite court-fee on the decree-sheet and thus made good the deficiency. The mere fact that the stamp was not placed on the decree-sheet was inconsequential. Learned Additional District Judge thus acted illegally in dismissing the petitioner's appeal on the ground of non-payment of court-fee on the decree-sheet. He also took an incorrect view of law in holding that since the deficiency in court-fee in any case was made good after the period of limitation for filing the appeal, the appeal was barred by limitation. This view, I am afraid, cannot be sustained in the presence of the provisions of section 28 of the Court Fees Act and section 149, C.P.C. Section 28 of the Court Fees Act provides in express terms that on the document being stamped thereunder, the document itself and every proceedings relating thereto shall be as valid as if the document had been properly stamped in the first instance. To the same effect is the provision contained in section 149, C.P.C. Which lays down that "where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court-fees has not been paid the Court may, in its descretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such court-fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance". In the instant case, the requisite court-fee for the decree-sheet was supplied with the permission of the lower appellate Court. The defect, therefore, stood completely cured and the law would presume as if the court-fee had been paid and the decree-sheet had been properly stamped right from the beginning. Question of limitation was thus wholly irrelevant.
Refer "Muhammad Sher v. Muhammad Khan" (supra). Supreme Court of Pakistan expressed the view in the afore-referred case of Siddique Khan that "the failure to supply proper court-fee in the context of the Court Fees Act and section 149 and Order VII, rule 11(c) can at best be equated with non-prosecution and not with non-institution or presentation of the matter/document nor with the bar of limitation". The judgment reported in AIR 1935 Lahore 124(2) which the learned Additional District Judge relied upon for invoking the bar of limitation on the ground that the court-fee was paid on the decree after the expiry of limitation period is distinguishable on facts as in that case, the appeal was returned because the decree-sheet appended therewith was insufficiently stamped and it was re-filed with properly stamped decree-sheet after the limitation for the appeal had expired. In the present case, however, the appeal was filed well within time. It was duly entertained and admitted to regular hearing and was very much pending when the requisite court-fee for the decree-sheet was supplied by the petitioner, of course, with the permission of the appellate Court. The appeal was neither returned nor re-filed. That being so, the precedent relied upon by the learned Additional District Judge had no application to the present case. Thus, viewed from whatever angle, the impugned judgment of the learned Additional District Judge cannot be sustained.
9. As regards the objection of the learned counsel for the respondents that the appeal before the lower appellate Court was not properly constituted because it was not filed by all the defendants/legal heirs of Muhammad Din deceased, suffice it to observe that no such objection was taken by the respondents before the lower appellate Court which even otherwise was fully competent by virtue of the provisions of Rule 4 of Order 41, C.P.C. To grant full relief and reverse or vary the impugned decree even in favour of non-appealing defendants. Rule 4 reads as follows:-- "Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs."
Under the provision aforequoted, any one of the plaintiffs or the defendants can appeal against the whole of the decree where there are more plaintiffs or more defendants than one in a suit and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants. In the instant case, petitioner and other legal heirs of Muhammad Din claimed to be the co-owners of the suit land. The decree of the trial Court passed against them proceeded on a ground common to all of them. In the circumstances, appeal filed by the petitioner, his mother and two sisters against the whole of the decree passed by the trial Court was thus quite competent particularly when the petitioner's two brothers who had not joined as appellants were arrayed as respondents in the appeal. The objection raised by the learned counsel for the respondents is thus repelled as having no substance. Refer PLD 1962 Dacca 23 and PLD 1962 Peshawar 199.
' In view of what has been said above, this revision petition is allowed, judgment and decree of the learned lower Appellate Court set aside and the case remanded for fresh decision of the petitioner's appeal on merits and in accordance with law. The learned District Judge may hear and decide the appeal himself or entrust it to any Additional District Judge. No order as to costs.