1987 PLP 2913 (MLD)

Ch. Muhammad Hassan for Respondents. Date of hearing: 5th October, 1987. --Respondents Nos.1 and 2 claiming themselves to be the owners of Shop No.49-P situate in Al-Faisal Block, Gojra Town, District Toba Tek Singh and petitioner a tenant therein, filed ejectment petition against him. It was averred in the petition that he committed default in payment of rent, the shop in question was required for their personal use and that he had damaged the property and impaired its value. The ejectment petition was resisted by the petitioner. He denied the relationship of landlord and tenant between the parties. The learned Rent Controller framed a preliminary issue, as to whether there existed relationship of landlord and tenant between the parties. He recorded evidence led by the parties, and vide order dated 7-1-1985 held the petitioner tenant under the respondents. He declared the petitioner defaulter and directed his ejectment from the disputed shop. Aggrieved by the aforementioned order the petitioner preferred appeal which was dismissed on 29-5-1986 by the learned Additional District Judge, Toba Tek Singh on the ground that petitioner failed to affix requisite court-fee on the Memorandum of Appeal, nor expressed his willingness to make up the deficiency in the court-fee. Hence this petition.

2. Learned counsel for petitioner contended that the petitioner was provided no opportunity to make up the deficiency in court-fee. The appeal was thrown out on the ground that the petitioner failed to make up deficiency in court-fee on the Memorandum of Appeal. It was contended that the Memorandum of Appeal against order of the Rent Controller was exempt from payment of court-fee. In the alternative, it was pleaded that the learned lower appellate authority did not provide reasonable opportunity to make up the deficiency in court-fee.

3. Learned counsel appearing on behalf of the contesting respondents on the contrary contended that the learned Additional District Judge exercising his jurisdiction as Appellate Authority against orders of the Rent Controller was not bound by strict application of the Civil Procedure Code. He made reference to the last paragraph of the impugned order wherein it was observed:- "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 the deficient court-fee." It was submitted that the petitioner insisted not to make up the deficiency in the court-fee payable on the Memorandum of Appeal. The order passed by the learned Additional District Judge as Appellate Authority cannot be construed to be without jurisdiction if petitioner made no effort to make up the deficiency in court-fee nor expressed his willingness to do so. It was also contended that it is well settled that the Memorandum of Appeal arising out of Rent Controller's order requires payment of ad valorem court-fee. In support of his submission he cited Khan Ghulam Hassan Khan vs. Dr.Rashid Ahmed (P L D 1967 Kar.35). It was also contended that the petitioner intentionally withheld material information that he had already filed a civil suit on 21-5-1986 for the relief prayed for in this petition, as such he is not entitled to discretionary relief.

4. I have considered the contentions raised by learned counsel for the parties and have perused the file. Admittedly the petitioner challenged order of his ejectment passed by the learned Rent Controller in appeal without affixing the requisite court-fee on the Memorandum of Appeal. Even on the day the appeal was argued he exhibited his reluctance to make up the deficiency in court-fee. The petitioner denied Vie relationship of landlord and tenant between the parties. The learned Rent Controller after evaluating evidence on the record found as of fact, that the petitioner was tenant under the respondents. This finding was assailed in appeal. The contention of 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. 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.

5. For the foregoing reasons, I find no merit in this petition and dismiss it with no order as to costs. H . B . T . / A-214/L Petition dismissed.