1. ' By this appeal, the appellant has challenged the judgment passed by the Ilnd Additional District Judge, Badin, Sindh in Land Acquisition Suit No,1 of 1985.
2. ' Briefly the facts are that agricultural land comprising Block Nos.166/2,3 and 168/2,3, admeasuring 5-09 acres of Deh Khathar, Taluka Golarchi, District Badin was acquired by the Government for digging oil well by Union Texas Pakistan. All necessary proceedings were complete and Award was passed by the then Collector/Land Acquisition Officer, Badin and as per the said Award, he awarded the compensation to the owners of the land, the present respondents Nos.1 and 2 at the rate of Rs,40,000 per acre, with 25% compulsory allowance, additional compensation at 15% and interest at 6% from 2-6-1983. The present respondents Nos.1 and 2 received the compensation amount under protest. They, however, claimed the compensation at the rate of Rs,2,09,411 plus 50% special adoptability value plus 25% compulsory allowance, 15% additional compensation, 6% interest and Rs,100 per tree for 62 trees from the said date till final payment of compensation. The reference under section 18 of the Land Acquisition was made by the Collector/Land Acquisition Officer, Badin vide his letter No,SC/I-A/1716 of 1985, dated 16th December, 1985. The learned Additional District Judge proceeded with the reference as Land Acquisition Suit No,1 of 1985, settled the issues and ultimately passed the impugned judgment whereby he enhanced the compensation rate to Rs,1,00,000 per acre plus Rs,6,200 as cost of 62 trees. He also allowed 25% as compulsory allowance on the total cost of land and trees, 15% per annum as additional compensation and 6% per annum as interest with effect from date of the acquisition of the land till final payment is made. Being aggrieved, the Land Acquisition Collector has preferred the present appeal.
3. ' At the very outset Mr. Aijaz Ali Hakro the learned counsel for respondents Nos.1 and 2 has taken the plea that the present appeal is not maintainable on two grounds; that the appeal is not preferred strictly in accordance with the provisions of Order XLI, rule 1, C.P.C.; and that the learned counsel appearing for the appellant was not duly appointed Advocate by the Government nor the present memorandum of appeal is signed by the appellant himself. The second objection taken by the learned counsel is that the present appeal was preferred with insufficient court-fee stamp; and that the deficiency was made good subsequently by which time the present appeal has become time-barred. The learned counsel agreed that these two points may be taken up for consideration first and then, if it- is found that the appeal is maintainable and within time, then the matter may be fixed for regular hearing on merits. Accordingly I have heard the learned counsel for the parties on these preliminary points.
4. ' The first point taken by the learned counsel for respondents Nos.1 and 2 is that the memorandum of appeal defined the appellant as "Assistant Commissioner and Land Acquisition Collector, Badin through Additional Secretary (Rev.), Board of Revenue, Sindh." The learned counsel has also pointed out that the memorandum of appeal has been signed by the Additional Secretary as is mentioned above and by Advocate-General, Sindh while the same has been verified by the Additional Secretary. He has referred to Order XLI, rule 1, C.P.C., which reads as under: "1. Form of Appeal. What to accompany memorandum. --(1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it apoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded.
(2) Contents of memorandum.--The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively."
5. ' In view of above provisions, the learned counsel has submitted that in the present case the memorandum of appeal has not been signed by the appellant himself. He has further submitted that in this case a letter was written on 28-10-1990 by the Additional Secretary (Rev.) to Solicitor, Government of Sindh, sanctioning the filing of appeal wherein it was specifically pointed out that appeal is to be filed by Government through Texaco and is to be conducted by Messrs K.M.A.
6. Samdani & Co., Advocates. He has also referred to the Power of Attorney filed by M/s. Samdani &.
7. Co., Advocates and has pointed out that this Power of Attorney also bears the signatures of the abovesaid Additional Secretary. Thus, the contention of the learned counsel is that for these reasons this appeal is not competently instituted. He has placed reliance on the case of Divisional Personnel Officer, Pakistan Railways, Lahore v. Chairman, Punjab Appellate Tribunal (1987 CLC 1397) and the case of Government of Sindh v. Haji Abdul Rehman (PLD 1992 Kar. 150). In these two cases the question involved was that at the time the appeal was filed, the counsel filing the appeal had no power of attorney duly executed in his favour in the first case while in the second case, the appeal was filed by an Assistant Advocate-General, who at the relevant time did not hold such post.
8. ' As against this Mr. K.M.A. Samdani, the learned counsel for the appellant has placed reliance on the Rules. For the Conduct of Legal Affairs of Government which defines the Law Officers as under: "3. Law Officers.- The Law Officers of Government (hereinafter referred to as the Law Officers) are the following:--
(i) The Advocate-General.
(ii) The Solicitor to the Government of West Pakistan (hereinafter referred to as the Solicitor).
(iii) The Government Pleader and the Public Prosecutor.
(iv) Honorary Assistant to the Government Pleaders.
15. Duties as Advocate.--It is the duty of the Advocate-General--
(a) to appear for the Crown in all criminal cases on the appellate side of the Chief Court;
(b) to appear on the appellate side of the Chief Court in every suit or other civil matters to which Government is a party or in which it is interested............................
(c) to appear, if required by Government in any criminal case pending before a Magistrate in Karachi;
(d) to undertake any legal business within the range of an Advocate's functions which Government may desire him to undertake in Karachi;
(e) to appear in all matters coming before the Chief Court of Sindh or the Federal Court of Pakistan, which involve a substantial question of law as to the interpretation of the Government of India Act, 1935, or any Order in Council made thereunder, or as to the validity of a Provincial enactment.
(2) The Advocate-General may in suitable cases transfer his work to the Public Prosecutor for Sindh."
9. ' Rules 51 of Sindh Chief Court Rules provides as under: "51. The Advocate-General, the Government Pleader in the Chief Court or any other Advocate appearing on behalf of the Secretary of State, the Central Government; the Crown Representative, or the Provincial Government shall not be required to file a Vakalatnama."
10. ' Also Order XXVII, rule 2, C.P.C. Provides as under: "2. Persons authorised to act for Government.- Persons being ex officio or otherwise authorised to act for the Government in respect of any judicial proceeding shall be deemed to be the recognised agents by whom appearances, acts and applications under this Code may be made or done on behalf of the Government."
11. The above provisions do show that the Advocate-General, Sindh is a person duly authorised and competent as provided therein to act, appear or plead on behalf of Provincial Government. Not only this, he can even sign the memorandum of appeal on behalf of the Provincial Government. As regards verification of the memorandum of appeal, there is no such provisions in Order XLI, rule 1, C.P.C. As provided for a suit in Order VI, rule 15, C.P.C. It may also be advantageous to reproduce the provisions of section 54 of the Land Acquisition Act, which provides for an appeal against the judgment of District Court: "54. Appeals in proceedings before Court.--Subject to the provisions of the Code of Civil Procedure, 1908, applicable to appeals from original decrees, and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court from the Award, or from any part of the Award, of the Court and from any decree of the High Court passed on such appeal as aforesaid an appeal shall lie to the Supreme Court subject to the provisions contained in section 110 of the Code of Civil Procedure, 1908, and in Order XLV thereof."
12. ' This provision would show that an appeal shall lie from- the Award but no specific mention has been made as to who can file the appeal as in section 96 of Civil Procedure Code. The learned counsel of the respondents has then referred to the case of Punjab Province v. Malik Shahbaz Khan (NLR 1986 (Civil)Lah.192) and the case of Licensing Authority v. Muhammad Idrees (1986 MLD 1794).
13. These two cases would be of no help to the present appellant as in these two cases the point involved was that if suit or appeal is brought against a Government Officer; and that Government has not appointed or nominated an advocate for the purpose of defending the Government Officer or filing of appeal, the same would be deemed to be between the private persons or in case of appeal the same would be not maintainable. The learned counsel for respondents has then placed reliance on the case of Collector and Chairman, District Board, Gujranwala v. Heernand (AIR 1929 Lahore 10(2)). In this case it was held that the appeals filed by the Agency for which the land was acquired would not be competent. This of course is settled law and has also been held by our Supreme Court in the case of Peerkhan v. Military Estate Officer, Abbotabad (PLD 1987 SC 485).
14. Same view has been held in the case of Land Acquisition Collector v. Muhammad Ajab Khan (1988 CLC 134) and the case of Central Government of Pakistan v. Suleman Khan (1989 CLC 1610). This view has also been held in a number of cases. From the above-referred cases, it may be concluded that it is settled law that the Agency or the party for whose benefit the land is acquired has no right to appeal as provided under section 54 of the Land Acquisition Act; and that it is only the Government or the Land Acquisition Collector who can prefer this appeal. Of course, there has been an amendment in section 54 of the Land Acquisition Act recently which now authorises such agency also to prefer an appeal but the said amendment would not be applicable to the present case as the maintainability of this appeal is to be decided in accordance with law prevailing at the time when the present appeal was preferred. As a right to prefer an appeal is a creature of statute.
15. As regards the objection of the learned counsel for respondents Nos.1 and 2 pertaining to the present appellant himself not having singed the memorandum of appeal, it may be observed that the very memorandum shows that appeal has been preferred in the name of the Assistant Commissioner and Land Acquisition Collector. Of course, the further words mentioned there are "through the Additional Secretary". This memorandum of appeal has also been signed by Advocate-General, Sindh, not only this but an application moved under section 151. C.P.C. Alongwith the memorandum of appeal is also signed by Advocate-General, Sindh wherein it is prayed that preliminary hearing of this appeal alongwith the application for stay be allowed to be heard at Karachi Bench. The application under Order XLI, rule 5 (1), C.P.C. Moved on the same day is also signed by the Advocate-General, Sindh. In the earlier application, the Advocate-General, Sindh has also mentioned that Mr. K.M.A. Samdani, Advocate has been appointed by the Board of Revenue to conduct the present matter. These facts per se do not exclude the authority of the Advocate- General, Sindh to appear and act on behalf of the Provincial Government. These facts and the provisions of the rules for the Conduct of the Legal Affairs of the Government do show that this appeal was signed and presented competently by the Advocate-General, Sindh. In the case of M/s. Nabi Bakhsh and Sons v. Pakistan (PLD 1969 Karachi 566) a Division Bench of this Court has held that the Advocate directed on behalf of the Government to conduct the case becomes a recognised agent for the purpose of appearances, acts and applications under Order XXVII, rule 2, C.P.C. In this very case it was further held by the Division Bench that the provisions of Order III, C.P.C.
16. Are not to be read in Order XXVII, C.P. C. As Order XXVII, C.P.C. Contains special provisions dealing with the suits by or against Government. It was further held that an Advocate engaged by Government need not file Vakalatnama, reference was made to Rule 51 of the Sindh Chief Court Rules. This shows that even an Advocate engaged by the Government enjoys similar privileges as does the Advocate-General, Sindh who is exempted from filing the Vakalatnama. Also in the case of Collector, Raigarh v. Chaturbhug Panda and others (AIR 1964 Madhya Pradesh 196) it has been held that Collector can file an appeal. The learned counsel for the respondents has referred to the case of Registrar, Cooperative Societies, Lahore v. The Montgomery Flour and General Mills (PLD 1958 (W.P.) Lahore 366). In this case a learned Single Judge of the Lahore High Court Lahore Bench while dealing with Order XXVII, rule 8, C.P.C. Had held that where a Government Pleader defends case against Public Officer, the Government virtually becomes defendants and in that event the decree, if passed can be sought to be executed against the Government according to law. The learned counsel has also referred to some other cases pertaining to lack of authority of the Advocate wherein he was either not authorised by the party concerned or there was some omission with regard to signing of the Vakalatnama. These cases would not be applicable to the present case as the present case involves special provisions with regard to Government litigation.
17. The machinery provided for the running of the business of the Government is quite vast and as by the passage of time complicated too. As observed in the case of M/s. Nabi Bakhsh v. Pakistan, referred to above, this by itself may not be a justification for departure from the correct rules of procedure; but in the day to day dealings and handling complex and emergent matters, verbal consultations and orders and other similar methods of dealing with situations cannot be altogether ignored. It is further held in the same case that a reasonable appreciation of the whole matter will result in the conclusion that, the nonobservance of the procedure laid down by the Rules and Instructions, if not provided by penal results provided they are faithfully, honestly and substantially followed (even though not technically and strictly) will not annul the actions and proceedings of the Government. Further it was observed that the general presumption that all official acts must be presumed to have been done according to procedure, must be raised in this case and in that view also the appointment of the Advocate cannot be viewed but as legal. The principles laid down in this case are very much applicable to the present case. Reliance may be placed on the case of Central Government of Pakistan v. Suleman Khan (PLD 1992 SC 590). In this case the Hon'ble Supreme Court was pleased to transpose the Collector (the respondents in the appeals) to the position of an appellant for the reason that he was competent to prefer an appeal and was already a party to the appeal.
18. ' In view of the above discussion, the logical conclusion that may be drawn is that an appeal under section 54 could be preferred by the Government or the Land Acquisition Collector: and that the Advocate-General, Sindh being duly authorised under the above referred Rules is competent to sign the memorandum of appeal on behalf of the Provincial Government or Government Officer.
19. The Land Acquisition Officer acts as an agent of the Government and merely because he does act as such Collector he does not lose his status as that of Government Officer. In the case of Bhajan Lal and others v. Secretary of State (AIR 1932 Allahabad 568) a Special Bench of three Judges headed by Suleman, C.J., has observed that "a Collector throughout the proceedings resulting in an award acts as Administrative Officer and not as a Judicial Officer. He is not suddenly converted from an Administrative Officer into judicial one for the purpose of making or refusing to make reference under section 18 and he continues to act as an agent of the Government in an administrative capacity throughout.
20. ' Accordingly I hold this appeal to have been filed by competent party and is signed by authorised person.
21. ' Now I take up the second question raised by the learned counsel for the respondents. His contention is that this appeal was initially presented in Court with a court-fee stamp of Rs,10 whereas the provisions of section 8 of the Court Fees Act provide that the court-fee payable on memorandum of appeal against order relating to compensation shall be computed according to difference between the amount awarded and the amount claimed by the appellant. From this the learned counsel has submitted that the court-fee in this case was payable ad valorem on the sum of Rs,3,13,500 being such difference. He has further submitted that in the present case the judgment was announced by the Ilnd Additional District Judge, Badin on 12-9-1990 and certified copy of the same was delivered on 26-9-1990 while the present appeal was presented on 30-10-1990 with insufficient court-fee stamp. The deficit court-fee stamp was paid on 21-3-1991 alongwith an application under section 149 read with section 151, C.P.C. And by this date this appeal would have been barred by limitation under Article 156 of the Limitation Act. He has submitted that there was no application under section 149, C.P.C. Filed alongwith memorandum of appeal nor any extension of time was granted by the Court for payment of deficit court-fee stamp.
22. ' I have heard the learned counsel for the parties. Mr. Aijaz Ali Hakro, the learned counsel for respondents has submitted that in the present case the appeal was filed with a court-fee stamp of Rs,10 only whereas the appellant should have paid the court-fee stamp of Rs,8,613. From this the learned counsel has submitted that the stamp paid is too low and, therefore, the same cannot be attributed to a bona fide mistake of the learned counsel. He has further submitted that in case no proper court-fee stamp is paid at the time of institution or the appeal is instituted on insufficiently stamp paper, it shall be deemed to be no presentation; and that in such cases the appeal shall be deemed to have been instituted on the date on which the deficit court-fee stamp is paid. He has placed reliance on the following cases:
(i) Hidayatullah and others v. Muhammad Ibrahim 1981 SCMR 381.
(ii) Willayat Khatoon v. Khalil Khan PLD 1979-SC 821.
(iii) State Life Insurance of Pakistan v. Mst. Zainab Khatoon PLD 1987 SC (AJ&K) 5.
(iv) Muhammed etc. v. Allah Ditta PLD 1981 Lah. 293, and
(v) H.H.S. Feldman v. The Province of East Bengal PLD 1970 Kar.
23. 295.
24. ' Mr. K.M.A. Samdani, the learned counsel for the appellant has submitted that the proper court-fee stamp was not paid at the time of institution of appeal due to a bona fide mistake of Advocate; and that the appellant had subsequently paid the maximum court-fee stamp of Rs, 15,000 voluntarily through an application (C.M.A. No, 254 of 1991) which application has since been allowed. He has further submitted that under section 149, C.P.C. The Court has vast discretion to extend the time for payment of deficit court-fee stamp; and that such extension can be with retrospective effect also. He has placed reliance on the following cases:
(i) Shah Nawaz and 6 others v. Muhammad Yousuf and 3 others 1972 SCMR 179.
(ii) Salahuddin v. Hafiz Muhammed Alam 1981 CLC 59.
25. ' It will be advantageous to reproduce the provisions of section 149, C.P.C. Which reads as under: "149. Power to make up deficiency of court-fees.--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 discretion, 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."
26. ' The above provision will show that the Court has a power to call upon the appellant or to extend the time for payment of deficit court-fee stamp. This provision shows that a vast discretion has been vested with the Court but it may be observed that such discretion is not to be exercised arbitrarily. In the case of Shah Nawaz and 6 others v. Muhammed Yousuf, it was held by the Supreme Court as under: "It is thus evident that unless the plaintiff is guilty of contumacy or positive mala fides in putting in deficient court-fees alongwith his plaint, the Court could in its discretion allow time to the plaintiff to put in the deficient court-fee. In the facts and circumstances of the case it could not be said that the plaintiff had been plainly very negligent, and had moreover, completely failed to provide any excuse for their default. They have offered to pay the deficit court-fee and the Civil Judge has permitted them to do so."
27. ' Similarly, in the case of Salahuddin v. Hafiz Muhammed Alam a learned Single Judge of the Lahore High Court had observed that in case the deficiency in court-fee and the appeal is made good under orders of Court, such appeal shall be deemed to have been properly stamped at time it was originally filed. In the case of Willayat Khatoon v. Khalil Khan, the Hon'ble Supreme Court has been pleased to hold that where the plaintiff is guilty of contumacious positive mala fide or lack of bona fide he would not be entitled to any indulgence on these grounds. In the same case it has also been held by the Hon'ble Supreme Court as under: "In the instant case, to begin with, the plaint had been filed in Court deliberately with an inadequate court-fee of Rs,2 only on it. On 10-2-1976 the Court, however, allowed the extension in time to the plaintiff to make up the deficiency in the court-fee on or before 18-3-1976 in accordance with rule 11 of Order VII of the Code of Civil Procedure. In spite of this the plaintiff failed to comply with the order within time, for any valid reason to the satisfaction of the trial Court for pre-emption. In this connection in appeal the learned lower Appellate Court observed that the trial Court had ordered the plaintiff to deposit the deficiency in the court-fee on or before 18-3-1976 but that it was not made up until on 12-4-1976 and no reason was advanced for this delay on the file. This order was upheld by the High Court in second appeal as no cogent reason was at all assigned by the plaintiff on the record for this further delay in depositing the deficiency in the court-fee.
28. ' In these circumstances the trial Court was justified in rejecting the plaint in exercise of the discretion vested in it. Likewise the two appellate Courts had also declined to interfere with the order for good and sufficient reason."
29. ' In this case it has further been held by the Hon'ble Supreme Court as under: "Section 28 of the Court Fees Act VII of 1870 is added as ' Stamping documents-inadvertently received', and lays down that 'no document which ought to bear a stamp under this Act shall be any validity, unless and until it is properly stamped. But if any such document is through mistake or inadvertence 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 proceedings relative thereto shall be as valid as if it had been properly stamped in the first instance'. (To the same strain are the provisions of sections 4 and 6 of that Act.) A plaint is a 'document' within the meanings of this section, and therefore, if it is insufficiently stamped, then according to the aforesaid section, it shall not 'be of any validity'. This may be read with section 149 of the C.P.C. (Act V of 1908) which is headed as 'power to make up deficiency of court-fee' and stated that ' where the whole or any part of any fee prescribed for any document by the law for the time in force relating to court-fee has not been paid, the Court, may, in its discretion, 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'. Reading both these sections together, it will be evident that by order of Court a plaint which was originally insufficiently stamped, is allowed to be properly stamped then law confers a retrospective validity on the said plaint. If by the time the proper court-fee on a plaint is paid, it as already become time-barred, that defect will stand cured if the deficiency was being made good under the order of a Court under the provisions of law relevant on the subject. This is a great concession shown by law to suiters whose suits otherwise would have become liable to be dismissed both for want of proper court-fee or for consequently becoming time-barred by the time the deficiency is made good by them. No doubt it is a solitary provision which purports to save sutiers from drastic effects of a fiscal statute, where emphasis is more on realization of Government revenue, then to punish the suiters for honest delinquencies However, this is only one side of the picture. In section 3 of the Limitation Act (Act of IX of 1908) which deals with ' dismissal of suits, etc. Instituted etc. After the period of limitation' it is laid down that subject to the provisions contained in sections 4 to 25 (inclusive) every suit instituted, appeal preferred, and application made after the period of limitation prescribed, therefor, by the First Schedule shall be dismissed although limitation has not been set up as a defence'. The word ' suit' as laid down in Hansraj Gupta and others v. Dehara Dun Mussorie Electric Tramway Company Ltd. 'ordinarily means a Civil proceedings instituted by the presentation of a plaint' to the same strain is section 26 of the C.P.C. If the position is, therefore, examined from that point of view, it becomes manifest that whereas the provisions of law earlier mentioned on the one hand and suiters, on the other hand, their indiscriminate and reckless exercise may destroy the plea of limitation available to a defendant."
30. ' The above principle has also been confirmed in the case of Hidayatullah v. Muhammed Ibrahim. In the case of State Life Insurance of Pakistan v. Mst. Zainab Khatoon and others, it has been held by the Supreme Court of A.J.K. That in the case petitioner having filed an appeal without affixing any court-fee on memorandum nor assigned any reason as to why the court-fee was not paid kept silent till objection was raised by the opposite-party after period of limitation for filing of appeal had elapsed, he could not be entitled to any indulgence as he was not only negligent but his conduct was contumacious. The same principle was followed in the case of Muhammad v. Allah Ditta. Also in the case of H.H.S. Feldman v. Province of East Bengal, it was held that permission for payment of deficit court-fee cannot be claimed as a matter of right specially where no reasons were mentioned in the first instance but subsequently the grounds of poverty and wrong advice of Advocate were urged.
31. ' In all the above cases the principle for grant of extension of time which are laid down are that the Court will not grant the indulgence to the party permitting to make good deficit of court-fee after the expiry of the period of limitation where the act of non-payment is contumacious or by positive mala fides and negligence. In the two cases of the Hon'ble Supreme Court cited above the party had filed the suit with a court-fee stamp of Rs,10 and Rs,2 as against very heavy amount of court- fee, which was required to be paid. It has also been held in these cases that poverty or wrong advice of the Advocate could not be held to be grounds for condonation of non-payment of court- fee and extension of time for the same. In the present case according to section 8 of the Court Fees Act, the court-fee is to be paid ad valorem on the difference of the amount of award and amount allowed by the Court which comes to Rs,3,93,500 and on this amount the court-fee stamp of Rs,8,613 is to be paid but only Rs,10 worth court-fee stamp has been pasted on the memorandum of appeal, whereas the covering sheet filed by the appellant alongwith the memorandum of appeal shows 'NIL' in the columan provided for mentioning the court-fee stamp paid. This it speaks about the recklessness of the learned counsel who has presented the memorandum of appeal in Court. Not only this it may be pointed out that memorandum of appeal was presented on 30th October, 1990 and counter-affidavit was filed on 13-1-1991 by the respondents and in paragraph 5 of the counter-affidavit it has been stated that the memorandum of appeal is written upon paper insufficiently stamped. Copy of this counter-affidavit was served on the appellants before filing of this counter-affidavit in Court. Yet the appellant waited for two months and 10 days to submit the application under section 149, C.P.C., in the Court (CMA No, 254/91) alongwith court-fee stamp of Rs,15,000 the maximum court-fee payable. But this time 175 days had elapsed from the date the certified copy of the judgment -of lower Court was delivered to the appellant and appeal had become barred by limitation. No explanation whatsoever is given as to what was the reason for not paying the court-fee stamp earlier. This application (CMA No,254/91) is supported by an affidavit of Mr. Ziauddin Ahmed Junejo, Advocate. In para.4 of the affidavit, he states that "as abundant pre- caution the appellant seeks permission of this Hon'ble Court to make good the deficiency in court- fee, if any". Even this shows that it is not the case of the appellant as to what court-fee stamp is required to be paid and why he did not pay the court-fee within time but he has by way of abundant pre-caution paid the maximum payable court-fee stamp in the Court. In these circumstances this conduct of the appellant cannot be termed as bona fide but is contumacious.
32. ' It was submitted by the learned counsel that since this application stands granted by an order passed by this Court on 24-3-1991, it would not now be permissible to re-open the same issue. A perusal of the order sheet shows that on 24-3-1991 a learned Single Judge of this Court had passed the order "both the above applications are taken up by consent and granted but subject to all just exceptions". In the case of H.H.S. Feldman v. Province of East Bengal, an appeal with deficient court- fee was admitted and under section 149, C.P.C. Deficit court-fee was permitted to be paid but subject to any objection by respondent at time of hearing of appeal. On this it was held by their lordships that this order did not finally decide the question of limitation; and that the same question could be agitated subsequently by the Advocate for the respondent. Similarly, in the present case the said application was allowed subject to all just exceptions which would mean that , all legal grounds could be taken subsequently.
33. In view of the above discussion, it can be concluded that the present appeal was instituted with deficit court-fee stamp and the appellant being negligent and his conduct being contumacious, there existed no reasons to show any indulgence to him and allow the time. The subsequent payment of court-fee stamp beyond the period of limitation would not render this appeal as properly instituted.
34. ' I would accordingly hold the appeal to be barred by limitation under Article 156 of the Limitation Act. There is no need to go into merits of the case. Accordingly, the appeal is dismissed with no order as to costs.