MUHAMMAD ISLAM BHATTI, J.- Saeed Ahmad S/o Ghulam Jilani,. 'respondent, was in possession of shops No. 3 and 4 belonging to the Auqaf Department near Janazgah Bahawalpur as their tenant.
Earlier he used to pay the rent hereof to the Mutawali of Janazgah and was running business of Dry Cleaners. After he property belonging to the Janazgah was taken over by the Auqaf Department, the respondent became their tenant. There was a piece of land measuring 18" x 14 quite adjacent to shop No. 3 and there existed a well in this plot which was out of order. In he year 1969, Saeed Ahmad requested the Department to give him this plot also on tenancy and sought their permission for re-building this shop all including the Ufone-said adjacent plot by filling in the well therein. Since this Janazgah is situated within the limits of cantonment Bahawalpur. Therefore, after obtaining necessary permission from the Cantonment Board and the Auqaf Department and getting the site plan sanctioned, he erected a huge shop thereupon in the year 1970 after allegedly spending an amount of Rs. 74,494/-. He also installed a water pump in these premises in order to supply water to the Janazagah as stipulated. On 29.1.1976, however, the Auqaf Department passed an order directing Saeed Ahmad to vacate these shops. H J was, therefore, obliged to file a declaratory, suit against the .Auqaf Department claiming therein that he had attained perpetual tenancy rights and the Department had no authority to dispossess him. This suit was finally decreed in his favour by the! Civil Judge Bahawalpur 3.1.1983 with the direction that he would not be evicted! From the shops otherwise then in due course of law and without the payment of compensation in connection with the expenditures incurred by him on the Construction.
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2. The Department, however, ignored this judgment and decree and Demolished the shops of Saeed Ahmad on 11.3.1984 by bulldozing the same without! Giving him any show-cause notice. He brought a suit against them for the recovery of a sum of Rs. 1,00,000/- as- damages. This suit was vehemently contested by the Department but after taking into consideration all the relevant facts and Circumstances, learned Civil Judge, seized of the matter, finally decreed it in favour ol the plaintiff/respondent on 21,1.1992.
3. Feeling aggrieved by this Judgment and decree, the Department filed an appeal which was admitted for regular hearing by the learned Addl. District Judge! Bahawalpur on 14.3.1992.
4. It was as late as on 3.5.1995 that the learned Addl. District Judge observed that the appellant was required to make payment of Court fees to the tune of! Rs. 7,500/-. He, therefore, directed the appellant to make up the payment thereof upto 31.5.1995. The case was then adjourned to 1.6.1995 for further proceedings. On that date, the learned counsel for the appellant moved an application u/S. 148, C.P. Code for enlargement of time for making up the deficiency in the Court fees. The learned Addl. District Judge adjourned the case to 4.6.1995 for the submission of written reply and arguments. After hearing the parties on that date and giving due consideration to the reasons put forth by the appellant for having failed to make the payment of Court fees, the case was adjourned to 14.6.1995 and the appellant was directed to make up the deficiency upto 13.6.1995. The appellant failed to do the needful even by that date. When the case came up before the learned Addl. District Judge on 14.6.1995, the appellant remained un-represented and after <'observing that since the appellant had failed to comply with the orders of the Court dated 3.5.1995 and 4.6.1995 with regard to the payment of the Court fees, the memo, of appeal was liable to be rejected he rejected the same accordingly, It appears that while this order was being passed, the learned counsel for the appellant also put in appearance. "
5. Dis-satisfied with this order and decree of the learned Addl. District Judge, the Auqaf Department and the District manager Auqaf Bahawalpur have filed the present civil revision.
6. It is interesting to note that after assailing the order regarding rejection of memo, of appeal on account of non-payment of the requisite Court fees, the petitioners have elaborated the facts of the case and assailed the findings of the learned trial Judge also on merits. With regard to their failure to make the payment of Court Fee, they have confined themselves to contending that the Department sought sanction from its head office which the head office was pleased to accord but since the clerks of all the Departments in the Punjab went on strike, the learned counsel for the petitioners could get sanction of the purchase of Court fees/stamps from the treasury on 12.6.1995 and as such the learned Addl. District judge had passed the impugned order in a hasty manner which was liable to be set-aside. k.
7. 1 have heard the learned counsel for the petitioners as also the" learned counsel for respondent Ch. Naseer Ahmad Advocate, at pre-admission stage. The learned counsel for the petitioners has relied on Muhammad Nawaz Khan and another v. Makhdoom Syed Ghulam Mujtaba and another (PLD 1970 S.c. 37) and Haji Khurshid Ahmad v. Mehr Salabat Khan Addl. District Judge Sahiwal and 2 others (PLD 1993 Lahore 10) for contending that the learned Addl. District Judge was not justified in refusing to grant further enlargement. I have had the privilege of going through both these judgments and I am afraid, the petitioners cannot seek any assistance from the law laid down therein, In PLD 1970 S.C. 37, it has been held that where the plaintiff is required to correct valuation of relief claimed in a suit, he shall further be required to supply the requisite stamp paper and on compliance it shah have the same force and effect as if such fee had been paid in the first instance. In PLJ 1993 Lahore 10, it had been laid down that the lower Appellate Court had rightly called upon the petitioner for demanding the additional Court fees on memorandum of appeal and the petitioner had no acceptable excuse for not paying the same in time fixed and later extended by the Court. The latter authority in fact helps the respondent.
8. The learned counsel for the respondent has, on the other hand, urged that the petitioners were negligent and indolent right from the beginning. They took as many as 52 days in filing the appeal and during this period, they could have conveniently purchased the Court Fees etc which they intentionally failed to do. They were not vigilant about their liability to pay the Court Fees during the next more than 3 years and kept silent upto 3.5.1995 on which date it was pointed out that they were liable to make the payment of Court Fees. Accordingly to him, the petitioners were, therefore, not at all justified is claiming that the learned Addl. District Judge rejected the memo, of appeal in a hasty manner.
9. I have gone through the case law on the point. There is no denying the fact that plaint or memo of appeal cannot be treated as properly presented 50 long as the proper Court Fee is not paid. Mst.
Saddiq Unisa v. Khan Sahib Agha Muhammad Sultan Mina (PLD 1972 Karachi 103), Lai Shah v.
Muhammad Ishaq (PLD 1977 Lahore 1058) and Muhammad v. Ehsan Ali (PLD 1983 Karachi 537) can be referred to with advantage on this point.
10. The mere fact that the petitioners in this case are the Government functionaries and they required sufficient time to go through certain formalities for obtaining the sanction of head office does not provide for a different treatment because the Govt. Departments and the citizens have to be treated alike as laid down in The West Pakistan Agriculture Development Corporation v. Soomar and 2 others (PLD 1984 Karachi 190) and no discrimination can be made between the two in matter of delay.
The following observations made by the Hon'ble Supreme Court in Province of West Pakistan v.
Abdul Hamid Darji (1970 SGMR 558).Though in a different context1 viz with regard to limitation, provide guidelines in such like cases.
"The Govemment cannot claim to be treated in any manner differently from an ordinary litigant, because of the fact that the Government enjoys unusual facilities for the preparation and conduct of their cases and its resources are much larger. If in site of these facilities the Government cannot comply with the requirements of the law of limitation, then it is for it to take steps to have that law changed and not to ask the Courts to give a different interpretation to its provisions."
11. In fact, instead of rejecting the memo, of appeal, the learned appellate Court should have dismissed the same because of order 7 rule II C.P. Code are applicable to suits and not to appeals.
It was so held in Mubarak v. Fullan and 7 others (1980 C.L.C. 485 Lahore ) and Suleman Khan v.
Nazar Khan and another (1983 C:L.C. 1502 (Lahore).-The following observations made in 1980 CLC 485 should not be lost sight of while dealing with such a case:- "There can be no two opinions on the proposition that the provisions of Order VIH 11 C.P.C, do not apply to the memorandums of appeal. It is well established that if an insufficiently stamped memorandum of appeal is presented before a Court of Appeal, no proper appeal shall be deemed to have been filed."
12. Had the petitioners made the payment of deficient Court fees, the memorandum of appeal would have been validated retrospectively from the date on which it had been so fil^. In the instant case, however, the insufficiently stamped memorandum of appeal does not become a memorandum of appeal and is just a piece of paper. The appeal was, therefore, liable to be dismissed on account of the failure of the petitioners to make the payment of the Court Fees.
13. With these observations, finding no merit in this revision petition, I cannot but dismiss the same in limine and it is accordingly dismissed.