RFA No.

472 of 2011 1

Judgment Sheet
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT

RFA No. 472 of 2011

Muhammad Shabir Salfi Vs. Altaf Ahmad

JUDGMENT

Date of hearing: - 20.12.2013

Appellant by: - Ch. Muhammad Fakhir Razzaq, Advocate.

Respondent by: - Mr. Alamgir , Advocate.

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SHAHID WAHEED, J:- Challenge in this appeal is to the

judgment and decree dated 28.9.2010 passed by the learned Addl. District

Judge, Pindi Bhattian whereby the suit of the respondent for recovery of

Rs. 1,500,000/- was decreed.

2. The respondent, Altaf Ahmad, on the basis of Cheque No.

3735643 dated 11.10.2007 instituted a suit under Order 37 Rule 1and 2

CPC against the appellant, Muhammad Shabir Salfi, for recovery of Rs.

1,500,000/-. In response to summons the appellant entered appearance

before the learned Trial Court and filed an application for leave to defend

the suit. The respondent contested the application by filing reply. The

learned Trial Court vide order dated 21.7.2010 accepted the above said

application and permitted the appellant to appear and defend the suit

subject to furnishing of surety bond equivalent to the suit amount.

Thereafter, on 4.8.2010, the appellant filed an application before the

learned Trial Court seeking extension in time to furnish surety bond.

Contesting reply to this application was filed by the respondent. The

RFA No. 472 of 2011 2

learned Trial Court vide order dated 28.9.2010 rejected the application;

and, through a separate judgment of even date decreed the suit.

3. The appellant feeling aggrieved by the judgment and decree

dated 28.9.2010 passed by the learned Addl. District Judge, Pindi Bhattian,

District Hafizabad, filed the instant appeal within the prescribed period of

limitation. The office of this Court vide Diary No. 93212 dated 4.11.2010

returned the file to the appellant with certain objections mentioned in the

objection-sheet and directed him to resubmit the same within a period of

three days. One of the objections was that the court fee was insufficient.

The appellant on 13.6.2011 after removing the objections including the

objection of court fee resubmitted the file; and, also filed an application

(CM No. 1-C/2011) under Section 5 of the Limitation Act for condonation

of delay. In view of delayed resubmission of file, at the outset of hearing,

learned counsel for the respondent by relying upon the cases of Ghulam

Hussain and three others Vs. Bahadar (PLD 1954 Lah. 361), Muhammad

Ahmad Vs. Muhammad Ali and others (PLD 1996 Lah. 158), and Naheed

Ahmad Vs. Asif Nawaz and three others (PLD 1996 Lah. 702), contends

that the instant appeal is barred by time and, therefore, be dismissed. In

reply to the above said preliminary objection the learned counsel for the

appellant submits that the appeal was filed within time; that although the

appellant due to his poverty could not supply the requisite court fee within

the time granted by the office of this Court yet the same was supplied and

accepted by the office without any objection and thus at this stage the

appeal cannot be dismissed on the ground of limitation. I have considered

the arguments canvassed by the learned counsel for the parties. The
RFA No. 472 of 2011 3

precedents cited by the learned counsel for respondent do not apply to the

facts of the instant case. However, in this regard guidance may be had from

the judgment passed by the Hon’ble Supreme Court of Pakistan in the case

of Mst. Sabran Mai Vs. Ahmad Khan and another (2000 SCMR 847)

wherein it has been observed that “once a suit, appeal or revision has been

presented before the authorized officer of the court within prescribed

period of limitation, it cannot be treated time barred for the reason that the

office has noted defects in the proceedings which have not been removed

by the concerned party or his Advocate, and in such like situation the

presiding officer of the Court at the best can consider the maintainability

of proceedings in view of the provisions of order VII Rule 11 CPC or

identical provisions available in the Code of Civil Procedure or the law

under which the proceeding were instituted. It is also important to note

that parties/ advocates are also not absolved from their duty to remove the

objection within the stipulated period prescribed by the concerned

authorized officer subject to condition that specific notice has been served

upon the party or Advocate to do the needful. Even if after notice the

defect is not removed the case shall be listed before the presiding officer

who may in his discretion allow time to comply with objection of office.”

Thus, the question that needs determination in this case is as to whether

this Court at this stage can condone the delay in complying with the

objections of office or accept the court fee which was deposited after eight

months from the date of objection raised by the office? The answer to this

question is in the affirmative. The case in hand shows that the office raised

certain objections on the memorandum of appeal and returned the case to

RFA No. 472 of 2011 4

the appellant. The appellant was required to remove the objections within a

period of three days but he took eight months to do the same. The office

after eight months received the file and the court fee without any objection;

assigned number; registered the same as regular first appeal; and, fixed the

case on judicial side. The memorandum of appeal if unstamped or

insufficiently stamped falls to be dealt with under section 149 CPC which

empowers the Court in its discretion at any stage to allow the appellant to

supply the deficiency in court fee and upon such payment the

memorandum of appeal shall have the same force and effect as if such fee

had been paid in the first instance. This view finds support from the

judgment of the Hon’ble Supreme Court rendered in the cases of Yaqoob

Khan v Rasool Khan and others (1981 SCMR 155) and Siddique Khan

v Abdul Shakoor Khan (PLD 1984 S.C 289). The principle governing

exercise of power under section 149 CPC is that the discretion of the Court

is not to be exercised arbitrarily or capriciously but judiciously and with

utmost care. Normally, the discretion may be exercised in favour of the

litigant except in the case of contumacy or positive malafide or negligence.

In the case in hand the appellant in C.M.No.1-C/2011 has urged that delay

in filing the court fee was neither deliberate nor intentional rather this was

due to poor financial position; and, that he after getting loan had affixed

the court fee. This assertion is supported by an affidavit. The above stated

assertions have not been refuted by a counter-affidavit. Thus, there is no

reason to suppose that the appellant was guilty of contumacy or he had

deliberately avoided to pay proper Court-fee; and, being guided by the

order of the Hon’ble Supreme Court made in the case of Alauddin

RFA No. 472 of 2011 5

(deceased) represented by Mst. Kalsoom Begum and others v Abdul

Raheem and 3 others (1988 SCMR 1688) I hereby condone the delay in

complying with objections of the office; accept court fee which was

deposited by the appellant; and, accept C.M. No.1-C/2011 so as to make

sure as to whether the judgment and decree of the learned Trial Court calls

for any interference.

4. On merits of the case, the learned counsel for the appellant

submits that the judgment and decree of the learned court below suffer

from misapplication of the provisions of law; that the learned Trial Court

erroneously dismissed the appellant’s application for extension in time to

furnish surety bond; and, that notwithstanding the failure on the part of the

defendant/ appellant to comply with the condition of the leave granting

order the learned Trial Court was required to apply its mind to the facts and

the documents before it but this exercise was not done by the learned Trial

Court and thus this irregularity rendered the impugned judgment and

decree void. Conversely, the learned counsel for the respondent has

vehemently opposed this appeal and submitted that due to failure of the

appellant to comply with the condition of leave granting order the learned

Trial Court had no option but to decree the suit. I have examined the

contentions raised by the learned counsel for the parties. The learned Trial

Court vide order dated 21.7.2010 granted leave to the appellant subject to

furnishing of surety bond equivalent to the suit amount. The appellant

could not furnish the surety bond before the next date of hearing and for

this reason the learned Trial Court decreed the suit. The appellant also filed

an application seeking extension in time to furnish surety bond. This

RFA No. 472 of 2011 6

application was also dismissed by the learned Trail Court vide order dated

28.9.2010. The question involved in this case is as to whether due to

default in furnishing surety bond, the learned Trial Court could decree the

suit? This question may be answered by examining the order dated

21.7.2010 whereby leave was granted to the appellant in following terms:-

“ Therefore, I accept the application and permit the petitioner

to appear and defend the suit as defendant subject to
furnishing surety bond for an amount of equal to suit amount
i.e. Rs. 15,00,000/-. Now to come up for further proceedings
on 3.8.2010.”

The perusal of the above said order shows that the learned Trial Court

while granting leave to the appellant did not specify any time to furnish the

surety bond. The learned Trial Court was required to specify the time

period for furnishing the surety bond. The omission of time period in the

leave granting order could neither bring an occasion of default in fulfilling

the condition of furnishing surety bond nor give rise to a cause of action

for filing an application seeking extension in time to furnish surety bond.

Thus, the filing of application, on behalf of the appellant, for extension in

time to furnish surety bond was uncalled for; and, similarly the order dated

28.9.2010 dismissing the said application was unjustified. In view of

above, I am of the opinion that the learned Trial Court fell into error while

recalling the leave granting order; and, decreeing the suit of the respondent.

5. In view of the foregoing position, I would allow this appeal

and set aside the impugned judgment and decree dated 28.9.2010, remit the

case to the learned Trial Court for adjudication afresh in accordance with

law. The order dated 28.9.2010 whereby appellant’s application for

extension in time for furnishing surety bond was rejected is also set aside.
 RFA No. 472 of 2011 7

The acceptance of appeal is subject to the condition that the appellant shall

furnish surety bond as directed by the learned Trial Court vide order dated

21.7.2010 within one month from today. There will, however, be no order

as to costs. The parties shall appear before the learned Trial Court on

16.01.2014.

(SHAHID WAHEED)
JUDGE

Approved for reporting

JUDGE

*Noor*