' Petitioner has assailed the order of respondent No,1, learned Additional District Judge, Lahore, dated 14-6-2002, whereby, he had rejected the memorandum of appeal of the petitioner against the judgment and decree of respondent No,2, learned Judge Family Court, Lahore, dated 3-12-2001, on account of the failure of the petitioner to affix court-fee in the amount of Rs,15,000.
2. Respondent No,2 had decreed the suit of respondent No,3, Sadia Shahid for recovery of dowry article in the amount of Rs,19,55,776. Petitioner had filed an 'appeal against this judgment and decree on 15-1-2002 and affixed court-fee in the amount of Rs,15 on the memorandum of appeal.
The learned counsel who filed the appeal had noted at the foot of the memorandum of appeal that court-fee was not required on the appeal. Respondent No,3 had filed an application under Order XLI, rule 3 and under Order VII, rule 11, C.P.C. For rejection of the memorandum of the appeal on the ground that the appeal require ad valorem court-fee respondent No,1 after hearing both the parties directed the petitioner vide order dated 10-5-2002 to affix court-fee in the amount of Rs,15,000 on the memorandum of appeal on or before 17-5-2002. The petitioner moved application for grant of extension of time for depositing of court-fee which was allowed and the petitioner was directed to affix court-fee by 21-5-2002. The petitioner filed an application for review of the order, dated 17-5-2002, which application was dismissed vide order dated 14-6-2002, and the memorandum of appeal was rejected due to non-affixation of court-fee.
3. Learned counsel for the petitioner has argued that the petitioner is a soldier and his counsel could not convey to him the order of respondent No,1 for affixation of Rs,15,000 within the requisite time and therefore, extension was sought, but even during the extended period provided by respondent No,1, learned counsel for the petitioner could not contact with the petitioner on account of his being posted on the border and therefore, the review application was filed on behalf of the petitioner, which was dismissed by respondent No,1 arbitrarily and without considering the contention of learned counsel for the petitioner regarding non-availability of the petitioner, further argues that respondent No,1 did not even bother to examine the appeal of petitioner and bare perusal of the judgment of the Family Court would disclose that the same was illegal and had been passed without jurisdiction and respondent No,1 had rejected the appeal of the petitioner on technical grounds without providing the petitioner ample opportunities for affixing court-fee.
4. I have heard learned counsel for the petitioner and I have also gone through the impugned order, dated 14-4-2002 as well as the judgment of Family Court dated 3-12-2001. Respondent No,1 has observed that at the time of filing of the appeal the petitioner was attending routine staff course at the Command and Staff College, Quetta and his residence phone numbers was also provided by respondent No,3. Respondent No,1 has observed that the counsel who had filed the memorandum of the appeal had wrongly noted on the same that on court-fee was required, although, he would have been well-aware of the law that against the judgment of Family Court ad valorem court-fee is required; that, there was no difficulty for his counsel to contact him since sufficient time had been provided to the petitioner for affixing court-fee but he did not affix the court-fee and had filed a review petition against the order granting him extension of time without any sufficient ground being available to him and therefore, the application appeared to have been filed merely to prolong the proceedings. Therefore, the attitude of the appellant was held to be contumacious and therefore, the memorandum of appeal was rejected.
5. It is apparent from the order of respondent No,1 that the petitioner had been provided adequate time for affixation of court4ee, since the appeal was filed on 14-1-2002, and respondent No,3 had filed an application for rejection of the memorandum of the appeal on 16-3-2002 which had been decided on 10-5-2002 and the petitioner had been directed to make good the deficiency in court- fee within one week. He was further allowed extension of one week on his application and his review petition against this application was dismissed on 14-6-2002. Thus the petitioner had been provided more than adequate time by respondent No,1 to make up the deficiency in court-fee however, he did not deposit the court-fee of Rs,15,000 which was a small amount keeping in view the decretal amount of Rs,19,55,776 which he had assailed in the appeal and it was contended on his behalf that being soldier and posted on the border he could not be located by his counsel. This contention of learned counsel was not borne out from the record since it was disclosed that the petitioner was posted at Quetta and could have been easily contacted on telephone by his counsel:
6. Even otherwise, it was responsibility of the petitioner to keep in touch with his counsel, who had filed his appeal. It is difficult to believe that he had never any contact with his counsel from 15-4- 2002 till 14-6-2002, although, he was not posted in the border area during this period. It has been settled by the Honourable Supreme Court in the case cited as Mirza Daood Baig v. Additional District Judge Gujranwala and others (1987 SCM R 1169) that the court-fee is payable ad valorem on the memorandum of the appeal filed before the District Court against the judgment and decree of Family Court and exemption from affixation of court-fee extends only to the court-fee to be paid on any plaint to be filed before Family Court, which requires court-fee of Rs,15 only. It was the duty of learned counsel, who had filed the appeal on behalf of the petitioner to inform him that memorandum of appeal requires court-fee in the amount of Rs,15,000. If he did not inform him it was his duty to inform the petitioner regarding the order of respondent No,1 dated 10-5-2002. As observed above, the petitioner was provided ample time to make good the deficiency in court-fee but it appears that he contumaciously neglected to do so by raising plea that he was a soldier and was serving on the border at the given time.
7. It is pertinent to note that the suit for recovery of dowry articles against which the petitioner had filed the appeal was filed before the Family Court on 9-5-2000 at Lahore and the petitioner had raised the preliminary objection that Court had not territorial jurisdiction to hear the case, although, the petitioner himself had earlier filed .a suit for restitution of conjugal rights before the Family Court at Lahore, which was dismissed on 3-11-1999 through a consolidated judgment, whereby the suit of respondent No,3 for dissolution of marriage had been decreed on the basis of Khula'. The arguments of learned counsel for the petitioner before this Court that his appeal could not have been rejected since the judgment and decree of the Family Court was without jurisdiction, cannot be agitated at this stage, particularly since the petitioner himself is responsible for having his appeal dismissed for not having he affixed the court-fee within time His conduct during the proceedings before the Family Court was also negligent and contumacious since the defence of the petitioner had been struck off and he had filed writ petition in this Court in which he was allowed permission to cross-examine the witnesses of respondent No,3 as well as to produce his own defence subject to payment of costs. It appears that throughout the litigation, the petitioner had been prolonging the proceedings for one reason of another.
8. Admittedly, he is a soldier but this does not entitle him to any special privilege, which extends beyond the provisions of Soldier Litigation Act, 1925. During proceedings before the Family Court, the, petitioner was posted at Pakistan Military Academy, Kakul, Abbotabad and during the period of appeal he was posted at the Command and Staff College, Quetta in staff course, therefore, during the entire period of litigation, he was' never posted in sensitive area fromwhere it was difficult for him to come or receive instructions of his counsel but before the both Courts below he tried to exploit his position as soldier in order to delay the proceedings. The suit for recovery of dowry articles remained pending for a period of 19 months before it was decided and the order-sheet shows that most of the delay was caused on account of the conduct of the petitioner and the same was the case before respondent No,1, where the matter of affixation of court-fee on appeal remained pending decision for several months. It has been held in the case cited as Muhammad Afzal v. Judge Family Court and others (1995 CLC 1418) that when the petitioner had neither made up deficiency in court-fee within the time provided by the Appellate Court nor had he shown sufficient cause for not doing the same the Court was justified to dismiss the petitioner's appeal for non-payment of the court-fee within the time fixed for this purpose.
9. In view of the above discussion, this petition is without any merit and is accordingly dismissed in limine.