1988 PLP 938 (MLD)

This judgment will dispose of Writ Petitions Nos. 2691 and 2692 of 1983 as questions requiring determination in both these petitions are one and the same. These petitions have arisen out of the two ejectment petitions, one filed by Muhammad Iqbal, etc. the legal heirs of Fazal Hussain against Muhammad Nazir and the other filed by the aforesaid legal representatives of Fazal Hussain against Anwar Baig. Muhammad Nazir, Anwar Baig and Fazal Hussain were real brothers and statedly were living in separate portions of property No. S‑XXXII 13‑S‑5, Gandhi Park, Lahore. The ejectment petitions were based on the ground of default in payment of rent at the rate of Rs. 300 per mensem for each portion and damage to the property. In both these ejectment petitions proceedings were ordered to be held ex parte against Muhammad Nazir and Anwar Baig and the 30th June, 1981, was fixed for the ex parte evidence. This was done vide orders dated 10th of June, 1981. On the next date after recording the statement of Muhammad Iqbal respondent, ex parte eviction orders were passed. It may be noted here that Muhammad Nazis died during the pendency of ejectment petition after he was ordered to be proceeded ex parte and the petitioners in W.P. No. 2691/83 are the legal representatives of Muhammad Nazir deceased. Thereafter, by taking out execution proceedings, possession of the respective portions was obtained on 12‑9‑1981. The legal representatives of Muhammad Nazir and Anwar Baig filed applications for setting aside ex parte orders the very next day i.e. 13‑9‑1981, asserting that no notice was ever served on them and that the eviction r order was obtained through collusion and by practising fraud.

2. During the pendency of these applications for setting aside ex parte order, the legal representatives of Muhammad Nazir, Muhammad Sharif and Muhammad Hussain (deceased brothers of Fazal Hussain) and the surviving brother Anwar Baig submitted application to the Chief Settlement Commissioner complaining that the Transfer Order could not legally be issued in the names of the legal representatives of Fazal Hussain alone. This application was accepted as vide order dated 17‑3‑1982 Transfer Order issued in the name of the legal representatives of Fazal Hussain exclusively was cancelled and the petitioners and the legal representatives of other brothers of Fazal Hussain were included in the Transfer Order as transferees. This order was challenged by the legal representatives of Fazal Hussain by filing Constitution Petition (W.P.No. 395 R/82) in this Court. This petition was disposed of by passing a consent order whereby the case was remitted to the Deputy Settlement Commissioner for deciding the matter afresh within 15 days. The Deputy Settlement Commissioner again vide order dated 6‑11‑1982 held the petitioners and others to be entitled to be joined as transferees. A joint T.O. was accordingly issued on 11‑11‑1982. The order passed by the Deputy Settlement Commissioner was again challenged by filing Constitution Petition (W.P.No. 507‑R/82) which was dismissed on 27‑11 1982. The respondents thereafter filed an Intra‑Court appeal which was dismissed in default on 5‑4‑1983 but was then restored and admitted to hearing vide order dated 30‑5‑1983. It is pertinent to note that the order impugned in these petitions was passed on 10‑5‑1983 by the learned Additional District Judge i.e., at the time when the order passed in the writ petition on 27‑11‑1982 held the field and the Intra‑Court Appeal also stood dismissed in default as it was restored and admitted to hearing later on 30‑5‑1983,

3. Reverting back to the proceedings before the learned Rent Controller, it may be noted that in view of the order passed on the Settlement side applications for withdrawal of the orders of ejectment dated 30‑6‑1981 were moved but the same were rejected on 29‑1‑1983 observing that the matter will be decided on merits. The learned Rent Controller ultimately vide orders dated 2‑4‑1983 set, aside the order whereby Muhammad Nazir predecessor‑in‑interest of the' petitioners and Anwar Baig petitioner were directed to be proceeded ex parte. These orders were challenged by the respondents by filing two appeals before the learned Additional District Judge. A court‑fee of Rs. 5 was affixed on each of these appeals. These appeals were thereafter accepted vide judgments dated 10‑5 1983 by the learned Additional District Judge observing inter alia that the petitioners are not within their right to get the ejectment order set aside because if this practice is allowed for getting ex parte orders set aside after the substituted service then there will be no end of litigation. Hence these Constitution Petitions.

4. Learned counsel for the petitioners in support of these petitions has argued:‑ (i) that no appeal lies against an order setting aside the ex parte order a/s. 15 of the Punjab Urban Rent Restriction Ordinance, 1959; (ii) that the appeals filed were under‑valued as court‑fee of the value of Rs. 5 only was affixed on each memorandum of appeal while the court‑fee was payable ad valorem on the amount of annual rent calculated at the rate of Rs. 300 per month, the rent claimed for each portion. These appeals were liable to be dismissed on this score alone as even an application for making good the deficiency was neither filed nor the deficiency in the court‑fee was made good; (iii) that the learned Appellate Court has illegally accepted the appeals by not adverting to the afore‑noted two objections despite the fact that these objections were specifically raised, and (iv) That the learned Appellate Court has failed to notice that the substituted service could not be sustained as it was not established on record that any real effort was made for effecting personal service.

5. Learned counsel for the respondents in reply argued: (i) that the order setting aside the ex parte order is to be treated as an order passed under section 13 of the Ordinance and, as such, the same was appealable under section 15; (ii) that the court‑fee paid was proper as there was no decision of the Rent Controller in respect of the rate of rent payable by the petitioners and in the absence of such a determination despite the claim of the landlord as to the rate of rent, the same court‑fee will be payable as was paid in the ejectment petition filed before the Rent Controller, and (iii) that on merits, the impugned judgments of the learned Additional District Judge are sustainable in law as well as on facts established on record. Learned counsel for the respondents, however, conceded that the question of non‑availability of the appeals was raised and argued by the parties and it appears that the submission made on behalf of the respondents found favour with the learned Appellate Court, though it has not adverted to the said question in the impugned judgment. He, however, argued that the objection regarding deficient court‑fee appears not to have been raised before the learned Appellate Court. The learned counsel for the petitioners in reply stated at the bar that he was also the counsel for the petitioners in the said appeals and he did raise the objection regarding deficient court‑fee as well. This statement at the bar was not controverted by filing any affidavit of the respondents or the learned counsel who appeared in the appeals for the respondents. Be that as it may, both these, appeals, even if the argument of the learned counsel for the respondents is accepted, were insufficiently stamped, as a court‑fee of the value of Rs. ` was affixed on each of these appeals whereas the court‑fee of Rs. 15 was affixed on each of the ejectment petitions. Even otherwise, the argument of the learned counsel for the respondent,, respecting the court‑fee payable is without merit. The respondents‑landlords in both these petitions claimed that monthly rent payable for each portion was Rs. 300 Muhammad Iqbal respondent appearing on behalf of the landlords, in his ex parte statement reiterated that Rs. 300 was the monthly rent for each portion in dispute. It was on the basis of this ex parte evidence that the ejectment orders were passed. In these circumstances, it is not open to the respondents to contend that there was no determination of the rent as their entire version given in the ex paete evidence was accepted by the Rent Controller. The court‑fee as such on the appeals was payable on the annual rental value of the premises in dispute, as it is the case of the respondents that the order impugned m the appeal is to be treated as the one passed under section 13 of the Ordinance. It will, therefore, be seen that the court‑fee of Rs. 5 paid on each of these appeals was grossly insufficient and the appeals were, therefore, improperly constituted. It is well‑settled that an appeal which is insufficiently stamped is no 1 appeal in the eye of law and the Court has no jurisdiction to accept an improperly constituted appeal. The appeals in question could not legally be accepted.

6. Coming to the merits, it is to be noted that the learned Additional District Judge failed to consider that the petitioners who were respondents in the ejectment petitions were not debarred from showing that there was no jurisdiction for ordering substituted service and that circumstances did not exist to warrant any such order. See Malik Muhammad Nazir v. Mian Abdur Rahim, etc. (P L D 1968 Lah. 792). The learned Additional District Judge himself observed that the Rent Controller was right in discarding this piece of evidence (notices Ehs. R/1 and R/2) in respect of the service of the summons upon the deceased, Muhammad Nazir, but then he added that "what about the telegram which was sent to the predecessor‑in‑interest of the petitioners and the publication in the newspaper." He, on the basis of the telegram and the newspaper held that the service was effected. If the learned Rent Controller had discarded the notice for the reason that no witness had verified the reports of the Process Servers then there was no material before him by which it could be gathered that the petitioners, who were respondents in the ejectment petitions, were avoiding service. The learned Additional District Judge also failed to take note of the fact that none of the respondents appeared in the witness‑box to contradict the evidence produced by the petitioners to show that none had visited the house for the purposes of effecting service of the process of the Court. Even the evidence of the witnesses produced by the respondents in the restoration proceedings was of no assistance. In these circumstances, the order for effecting substituted service was illegal. It is, therefore, apparent that the learned Additional District Judge, labouring under misconception, interfered unjustifiably with the orders of the Rent Controller setting aside ex parte order. Thus, on merits as well, the impugned orders are not sustainable in law. The appeals were bound to fail on merits as well on account of being improperly constituted. As the impugned orders are liable to be quashed for the aforesaid two reasons, I do not feel the necessity ok' examining the other contention relating to non maintainability of appeals.

7. For the reasons recorded above, these Constitution Petitions are accepted. The impugned orders dated 10‑5‑1983 are declared to have been passed without lawful authority and hence of no legal effect, with the result that the order dated 2‑4‑1983 passed by the learned Rent Controller shall hold the field and the Rent Controller shall proceed in the matter in accordance with law. The respondents shall also bear the costs of the petitions. M.Y.H/3321.L Petitions accepted.