25/2012 II.A. Sikandar Ali (Appellant) V/S Abdullah & Others (Respondent)
Sindh High Court
Bench: Hon'ble Mr. Justice Nazar Akbar
Order Date: 09-SEP-14
(a) Civil Procedure Code (V of 1908)--- ---O. XXIII, R. 1(3) & 0. II, R.2---Withdrawal of suit---Fresh suit, institution of---Scope---Suit was decreed by the Trial Court but same was dismissed by the Appellate Court being barred under O.II, R.2, C.P.C.---Validity---Plaintiff was precluded from filing another suit after withdrawl of earlier suit on same "cause of action", on same "subject matter" and against the same defendant without permission to institute a fresh one-Provisions of O.XXIII, R.1(3) and O.II, R.2, C.P.C. were complementary to each other to control the litigation after litigation between the same parties on the same subject matter. Ghulam Nabi and others v. Seth Muhammad Yakoob and others PLD 1983 SC 344; Muhammad Suleman v. Ehsan Ali PLD 1983 Kar. 537; State Life Insurance of Pakistan v. Mst. Zainab Khatoon and others PLD 1987 SC AJ&K 5; Manzoor Hussain v. Rasool Bukhsh 1991 CLC 640; Qazi Shamas-ur-Rehman and another v. Mst. Chaman Dasta and others 2004 SCMR 1798 and Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289 ref. Muhammad Suleman v. Ehsan Ali PLD 1983 Kar. 537; State Life Insurance of Pakistan v. Mst. Zainab Khatoon and others PLD 1987 SC AJ&K 5; Manzoor Hussain v. Rasool Bukhsh 1991 CLC 640; Qazi Shamas-ur-Rehman and another v. Mst. Chaman Dasta and others 2004 SCMR 1798 and Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289 rel. (b) Civil Procedure Code (V of 1908)--- ----S. 99---Appeal---Court fee, non-payment of---Effect---Ministerial staff of court was bound to point out non-payment of court fee and if such had been done then appellant could pay the same to avoid dismissal of appeal on account of non-payment of court fee---If such objection had been raised by the Appellate Court only then appellant could have been penalized---Jurisdiction of Appellate Court was not disputed to entertain the appeal, therefore order passed thereon was not affected adversely on account of non-payment of court fee---Impugned judgment and decree passed by the Appellate Court were protected by the provision of S.99, C.P.C. despite the fact that no court fee on the appeal was paid---Appellate Court had no power to set aside the judgment and decree on the ground of error or irregularity which had not affected the merits of the case or jurisdiction of the court---Non??payment of court fee was mere irregularity which could be corrected at any time and such irregularity had not rendered the impugned order void or without jurisdiction---Appellant (respondent) had not refused to pay the court fee and High Court could not non-suit him on the ground of filing first appeal without court fee---No punitive action could be taken against the appellant (respondent) without recourse to the provision of O. VII, R.11, C.P.C.---High Court could call upon the appellant (respondent) to pay the court fee---Appellant (respondent) was directed to deposit/pay the requisite court fee in the High Court within a specified period to rectify the irregularity occurred on account of non-payment of court fee before the first Appellate Court.Full judgment text for this case is not yet available on Pakistan Law Reports. Check the official Sindh High Court case law portal for the complete order.
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