1984 PLP 1762 (CLC)

‑‑ S. 15‑Court Fees Act (VII of 1870), S. 7 read with Notification No. 353/80/248/ST‑1, dated 4‑2‑1980‑Notification exempts suits of Civil and Revenue Courts at all stages where relief claimed not exceed ing Rs,.j.25,000 and on complaints in criminal cases‑‑‑‑Notification, held, has no application to appeals filed under Ordinance as application for ejectment before Rent Controller cannot be considered suit within meaning of Notification. ‑‑ S. 149‑Court Fees Act (VII of 1870), S. 28‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 15‑Petitioners filing appeal specifically mentioning in memorandum of appeal that no Court- fee paid because annual rental value did not exceed Rs. 25,000‑Office not raising any objection about Court‑fee‑District Judge himself admitting appeal for regular hearing and issuing notice to respondents without raising objection regarding question of non‑payment of Court- fee‑Held, bona fide of petitioners could not be doubted and they deserved to be allowed to make up deficiency in court‑fee when objection to that effect raised by respondents.

‑‑ S. 115‑Court Fees Act (VII of 1870). S. 28‑Provisional Constitu tion Order (1 of 1981), Art. 9‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 15‑Memorandum of appeal received in Court of District Judge, without being properly stamped, through mis take or inadvertence‑Held, District Judge, should have exercised his jurisdiction under S. 28 of Court Fees Act‑Dismissal of appeal by District Judge in such circumstances, a case of failure to exercise jurisdiction on his part‑High Court, held further, could interfere in exercise of Constitutional jurisdiction. Mahmood Ahmad Kahloon v. Fateh Muhammad and others P L D 1981 Lah. 459 and Noor Ahmad v. Muhammad Jan Khan and 3 others P L D 1972 Pesh. 164 ref. The petitioners herein "were in occupation of two shops forming part of a building bearing Property No. B‑Vl‑S11‑222 situated opposite to G. T. S. Bus Stand at Lahore Sargodha Road, Sheikhupura as tenants under respon dents Nos. 1 to

7. The said respondents filed an ejectment petition before the learned Rent Controller, Sheikhupura seeking eviction of the petitioners from the aforesaid tenanted premises on the ground of bona fide personal need and re‑erection of the building. The ejectment petition was, of course, resisted by the petitioners. The learned Rent Controller however, after recording parties' evidence ordered the eviction of the petitioners vide his order dated 27‑3‑1983.

2. The petitioners filed an appeal before the learned Appellate Authority, viz. the District Judge, Sheikhupura on 25‑4‑1983. They did not affix any court‑fee stamp on the memorandum of appeal contending that since the annual rental value of the shops in question did not exceed Rs.25,000, therefore, no court‑fee was required to be paid. The office of the learned District Judge, Sheikhupura without any objection regarding court‑fee admit ted the appeal. The learned District Judge also in the first instance issued notice to the respondents who raised a plea to the effect that the memorandum of appeal was not properly stamped and that the notification which was sought to be pressed into service claiming exemption from payment of Court fee was not applicable to a memorandum of appeal whereby order of a Rent Controller was sought to be challenged. The said exemption was available in case of civil and revenue suits only at all stages. Subsequently, the petitioners submitted an application under section 149 of the Code of Civil Procedure requesting that they might be allowed to make good the deficiency in the court‑fee. It was pleaded in the said application that the petitioners' counsel was under the impression that Court fee was not payable as the annual rental value of the tenanted shops did not exceed Rs. 25,000.

3. The learned District Judge, however, vide his order dated 1‑11‑1983 dismissed the appeal as also the application under section 149 of the Code of Civil Procedure, for non‑payment of the requisite court‑fee on the memo randum of appeal. The petitioners have now assailed the order dated 1‑11‑1983 passed by the learned District Judge, Sheikhupura by invoking the writ jurisdiction of this Court.

4. The exemption from payment of court‑fee provided in Notification No. 353/80/248‑ST‑I, dated 4‑2‑1980 is available in case of civil and revenue suits, the value of the subject matter whereof, or of the relief claimed therein, does not exceed Rs. 25,000, at all stages, in all Courts, including revenue Court, and on complaints in criminal cases. It is thus evident from the language o: this Notification that it has no application to appeals filed against orders passed by Rent Controllers in exercise of their jurisdiction under the West, Pakistan Urban Rent Restriction Ordinance, 1959. Ejectment Applications cannot be considered to be suits as envisaged in this Notification. The peti tioners were, therefore, required to pay the court‑fee on the memorandum of appeal keeping in view the annual rental value of the tenanted property.

5. We cannot, however, lose sight of the fact that the petitioners specifically mentioned in the memorandum of appeal that no court‑fee was being paid on the memorandum of appeal because the annual rental value did not exceed Rs. 25,000 but the office of the learned Appellate Authority, as already observed, did not raise any objection about the court‑fee. The learned District Judge himself admitted the appeal for regular hearing and issued notice to the respondents without raising any objection in regard to the question of non‑payment of court‑fee. In these circumstances, the bona fides of the petitioners could not be doubted and they deserved to be allowed to make up the deficiency in the court‑fee when the objection to that effect was raised by the respondents.

6. It has been argued on behalf of the respondents that the order of the learned District Judge cannot be interfered with in exercise of Constitu tional jurisdiction even if he has recorded an erroneous finding on a question of law because otherwise he possessed jurisdiction to pass such an order. Reliance has been placed on Mahmood Ahmad Kahloon v. Fateh Muhammad and another (P L D 1981 Lah. 459) wherein it was held that Constitutional jurisdiction can be invoked only where an impugned order suffers from legal defect amounting to defect in exercise of jurisdiction on the part of the Tribunal making such an order. This plea is devoid of any merit because according to the circumstances of this case, the impugned order is to be taken to be the result of failure to exercise jurisdiction on the part of the learned District Judge which vested in him. Section 28 of the Court Fees Act, 1870 (Act No. VII of 1870) reads; "No document which ought to bear a stamp under this Act shall be of any validity, unless and until it is properly stamped. 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 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 pro ceeding relative thereto shall be as valid as if it had been properly stamped in the first instance." In this case, the memorandum of appeal was received in the Court of the learned District Judge without being properly stamped through mistake or inadvertence. The learned District Judge should have, therefore, in exercise of his jurisdiction under section 28 of the Court Fees Act asked the petitioners to properly stamp the memorandum of appeal. This has not been done by him in the circumstances of this case. In Noor Ahmad v. Muhammad Jan Khan and 3 others (P L D 1972 Pesh. 164), the office did not object to the deficiency in the Court fee but received the memorandum of appeal with a deficient court‑fee stamp through an inadvertent mistake. It was held that the defect was remediable under section 8 of the Court Fees Act. The High Court, therefore, ordered the appellant to make good the deficiency by a date fixed by the High Court.

7. In the light of what has been said above, it is concluded that this is a case of failure to exercise jurisdiction on the part of the learned District Judge. The Writ Petition is accordingly allowed and the impugned order dated 1‑11‑1983 passed by the learned District Judge, Sheikupura is declared to be without lawful authority and of no legal effect. Resultantly, the petitioners are allowed thirty days' time from today for making up the deficiency in the court‑fee on the memorandum of appeal. In the event of deficiency having been so made good by the time thus allowed, the learned District Judge shall decide the petitioners' appeal on merits in accordance with law. No order as to costs. M.B.A Petition accepted.