ATA MUHAMMAD Versus ABDUL AZIZ

1. SHAFIUR RAHMAN, J.‑‑ Leave to appeal was granted to the tenant to examine the correctness of the view taken by the Additional District Judge on 29‑5‑1986 in an appeal under section 15 of the Urban Rent Restriction Ordinance, 1959 with regard to the deficiency in court fee and the judgment of the High Court, dated 5‑10‑1987 in constitutional jurisdiction not interfering with that order.

2. The respondent‑landlord sought the eviction of the appellant tenant from premises located in Alfaisal Bazar, Gojra, District Toba Tek Singh for non‑payment of rent, among other grounds. The appellant denied the very existence of the relationship of landlord and tenant between the parties and the only issue framed was whether the relationship of landlord and tenant existed between the parties. After elaborate examination the Controller by his order, dated 7‑1‑1985 held that the appellant was the tenant of the respondent and further as on his own admission he had not paid rent he was liable to be ejected and his ejectment was ordered.

3. An appeal was filed by the appellant in January, 1985 and it came to be decided by the Additional District Judge on 29‑5‑1986. As the memo of appeal bore no court‑fee at all an exemption was sought on the analogy that court‑fee or suits upto the value of Rs.25,000 was exempted but this ground was rejected by the learned Additional District Judge. After rejecting this ground, the learned Additional District Judge passed the following order‑

4. "Present appeal was presented long before but even now is deficient in court‑fee. He even pleaded otherwise instead of showing his willingness to make up his deficient court‑fee. I, therefore, without going into the merits or demerits of the main case consider that this appeal as understamped and no appeal in the eye of law and dismiss the same being not competent in the eye of law. However, while doing so, I grant the appellant one month's time in order to vacate the premises and deliver its vacant possession to the opposite party."

5. A Constitutional petition was thereupon filed by the tenant. The learned Judge in the High Court dismissed the Constitutional petition on the following two grounds‑‑

6. "The contention of the learned counsel for petitioner that he was afforded no opportunity for making up deficiency in the court‑fee loses its significance when the petitioner expressed his unwillingness to make up deficiency in the court‑fee. The impugned order passed by the learned appellate Authority in exercise of his powers under section 15 of the Rent Restriction Ordinance, 1959 was neither without jurisdiction nor against law pronounced by the superior Courts. The impugned order, therefore, merits no interference in writ jurisdiction.

7. Even otherwise it appears that the petitioner intentionally withheld material information regarding institution of his suit prior in time, to the filing of this petition which disentitled him from discretionary relief."

8. Mr. Shahid Hussain Kadri, Advocate, the learned counsel for the appellant, has contended that even if the provisions of the Civil Procedure Code were inapplicable to the proceedings in appeal before the Additional District Judge, the principles contained therein for the purposes of advancing the process of adjudication are being availed of and could be availed of. According to him, the decision of this Court in Siddique Khan v. Abdul Shakur Khan P L D 1984 S C 289 fully establishes the law of the land that the deficiency has not only to be determined as a fact but also time has to be allowed for making up the deficiency and it is only when such deficiency is not made up penal consequence of not entertaining the appeal could follow.

9. Ch. Muhammad Hussain, Advocate, the learned counsel for the respondents, on the other hand contended that provisions of the Civil Procedure Code were not strictly applicable to the proceedings in appeal before the Additional District Judge and the Additional District Judge had exercised a discretion possessed by him and such an order could not be interfered with in proceedings invoking the constitutional jurisdiction of the High Court. Besides, according to the learned counsel, the appellant had disentitled himself to any relief in the constitutional jurisdiction because he had suppressed a vital fact, namely, the pendency of civil suit.

10. Section 28 of the Court Fees Act provides as hereunder‑‑

11. "28.‑‑ Stamping documents inadvertently received. ‑‑No document which ought to bear a stamp under is c s all be of any validity, unless and until it is properly stamped.

12. But, if any such document is through mistake or inadvertence received, 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 proceeding relative thereto shall be as valid as if it had been properly stamped in the first instance."

13. The fact remains that this appeal of the appellant which was filed before the District Judge in January, 1985 was entertained and proceedings were undertaken on it till 29‑5‑1986 when it came up for adjudication on exemption from court‑fee which was adjudicated upon and the exemption claimed from court‑fee was denied to the appellant. In such a situation not only the exact court‑fee payable was required to be determined and the appellant informed but reasonable time should have been allowed to make it up. The language of the law indeed gives the impression that it is discretionary with the Presiding Officer or the Judge to allow such time or not. The entire philosophy of the Court Fees law has been examined by this Court in the case of Siddique and it is clear that the provisions are not to be used as penalty in the first instance but are directed to regulate the proceedings and not to thwart the adjudication or to non‑suit a party on account of the purely fiscal provision attached to the procedure.

14. Apart from section 28 of the Court Fees Act, the enabling provisions of the Civil Procedure Code are certainly attracted to the hearing of appeal by the District Judge in the matter of addition of parties, their substitution etc. and the law with regard to the making up the deficiency in the court‑fee will also be attracted to the proceedings before the District Judge because no specific provision has otherwise been made therefore. If the act of the Additional District Judge was without jurisdiction in the light of the law laid down by this Court, there is no question of denying the appellant the relief in the constitutional jurisdiction as he has a tangible and material interest in the proceedings.

15. We, therefore, accept this appeal, set aside the judgment of the High Court and that of the Additional District Judge and remand the proceedings to the District Judge for determining the exact court‑fee payable for calling upon the appellant to pay it by a given date and to proceed in accordance with law thereafter. No order as to costs.

16. M.I. /A‑177/S Order accordingly