1988 PLP 308 (SCMR)

ASLAM RIAZ HUSSAIN, J.--Facts giving rise to this petition briefly are that the respondents 1 to 3 filed an application for ejectment of their tenant from shop No. 49-P in Gojra on the ground of default in payment of rent. The tenant (petitioner) denied the relationship of landlord and tenant. A preliminary issue was framed by the Rent Controller as to whether or not the relationship of landlord and tenant existed between the parties. After recording the evidence he declared the present petitioner to be the tenant, and since default was admitted, he was ordered to be evicted from the shop in question. Aggrieved by that order he preferred an appeal which was dismissed by the District Judge on 29 May 1985 on the ground that he had not affixed the requisite court-fee and further had not shown his willingness to make up the deficiency. He then filed a writ petition in which the High Court upheld the order of the District Judge and dismissed the writ petition. Hence the present petition for leave to appeal. Learned counsel for the petitioner relying on Siddique Khan etc. v. Abdul Shakur Khan etc. (P L D 1984 SC 289) submitted that the learned District Judge ought to have calculated the correct court-fee and given time to the petitioner-tenant to make up the deficiency. He also cited Sh. Muhammad Islam v. Adeeba Khanum and another 1985 C L C 1619 wherein the same view was taken by the learned Single Judge of the High Court on the basis of the dictum of Siddique's case (supra). The learned counsel for the caveators (respondents Nos. 1 to 3) opposed the grant of leave. He contended that Siddique's case (supra) was a pre-emption matter and the dictum in question is based on the wordings of the provision of Order VII, rule 11 (c) of the Code of Civil Procedure. The relevant portion whereof is reproduced below for facility of reference; "(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so." The learned counsel submits that since CPC is not applicable to the proceedings of rent cases, the dictum in Siddique's case (supra) would not be attracted to such cases. He submitted further that in the present case the learned District Judge has indicated that even if the time is given it would have been of no use, as the petitioner tenant had already shown his unwillingness to make up the deficiency in the court-fee. The counsel submitted that this factor also distinguishes the present case from that of Siddique's case (supra) because where a party deliberately and contumeliously fails to affix the proper court-fee and fails to make up the deficiency despite an opportunity having been offered to him, he ought not be shown any leniency by way of grant of further time to make up the deficiency in the court-fee. The aforementioned questions need further consideration. Leave is therefore granted for that purpose. Security for costs in the sum of Rs. 2,000/- The appeal shall be heard on the present record with permission to the parties to file additional documents, if any. In view of the nature of the case it should be fixed at a very early date in January, 1988. Status quo should be maintained in the meanwhile. M.B.A./A-138/S Leave granted.