1986 PLP 692 (MLD)

This second appeal has been directed against the order, dated 19‑12‑1977, passed by the learned Additional District Judge, whereby the first appeal filed by the appellant against his eviction ordered on 11th November, 1976, by the learned Rent Controller, was dismissed.

2. The respondent filed a petition for ejectment of the appellant from House No. B‑IV 25 S.4 situate in Hafizabad described in the petition, on the ground of default in payment of rent and impairing the condition of the property in dispute. It was averred in the ejectment petition that the petitioner (respondent) had purchased the house in question from one Abdul Hameed, through a registered sale‑deed, dated 4‑2‑1975 to whom it was transferred by Settlement Department and that notice intimating the factum of purchase of the house and demanding the rent at Rs. 35 per month, according to the latest assessment of the local authority and Taxation Department, was served on the appellant through registered A.D. Post. The appellant contested the ejectment petition and denied the existence of relationship of landlord and tenant between the parties. He further claimed that he entered into an agreement with the respondent for sale of the house in his favour for consideration of Rs. 2,500 which was already paid to him.

3. Necessary issues arising out of the pleadings of the parties were framed by the learned Rent Controller. On the basis of the evidence led before him he came to the conclusion that service of notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, on the appellant was proved. As regards the appellant's contention regarding his entering into an agreement with the respondent for sale of the house in dispute, no agreement in writing was produced before the learned Rent Controller. In order to prove the agreement, only one witness namely Bahadur Ali, R.W.2, was produced by the appellant, who in cross‑examination, however, admitted that he was not present at the relevant time when the parties entered into the agreement. Disbelieving the evidence produced by the appellant, the learned Rent Controller held that the appellant failed to prove that there was any agreement for sale of the house in his favour. As the appellant had denied the factum of relationship of landlord and tenant and did not pay any rent to the respondent, despite receipt of notice, the learned Rent Controller accepted the ejectment petition and passed order of eviction against the appellant.

4. The appellant preferred an appeal which was dismissed by the learned Additional District Judge, vide his order, dated 19‑12‑1977. This order has been impugned through this appeal.

5. It appears that instead of paying the court‑fee on the annual rental value of the property the appellant affixed only a stamp worth Rs. 15 on the memorandum of appeal. When the appeal was instituted in the presence of the learned counsel for the appellant, the office of the learned first appellate Court, raised an objection that there was deficiency of Rs.16.59 in the court‑fee. The appellant failed to make good the deficiency till 27‑11‑1977 on which date the court‑fee stamp worth Rs. 10 was affixed on the memorandum of appeal. On the following day the appellant filed an application under section 5 of the Limitation Act for condonation of the delay and further furnished the court‑fee stamp worth Rs. 7 for making good the deficiency. The learned Additional District Judge declined to condone the delay and relying on Lal Shah v. Muhammad Ishaq P L D 1977 Lah. 1058, held that the appeal was barred by time and dismissed the same.

6. I have perused the record and heard the learned counsel for the parties. The only submission made by the learned counsel for the appellant, in support of the appeal, is that the failure on the part of the appellant to pay the proper court‑fee was not intentional and wilful. He submits that an application under section 5 of the Limitation Act was filed and the learned Additional District Judge should have condoned the delay and extended time for making good the deficiency in the court‑fee.

7. It is obvious from the record that on 10‑2‑1976 when the appeal was filed, the appellant through his learned counsel became aware of the deficiency in the court‑fee. He did not make any effort to pay the requisite court‑fee during almost a period of one year and it was only on 27‑11‑1977 that court‑fee stamp worth Rs. 10 was provided. The A remaining deficiency was made good on the following day. The facts and circumstances of this case smack of negligent and contumacious conduct on the part of the appellant. The proper court‑fee not having been paid at the time of the appeal, it was not competent and on 10‑11‑1977 when the deficiency was made good the appeal had become barred by time.

8. There was no good reason for extension of time and the request was rightly declined by the learned Additional District Judge, entirely agree with the view taken to Lal Shah's cage referred to in his impugned judgment. There is no merit in this appeal which is dismissed leaving the parties to bear their own costs.

9. The learned counsel for the appellant requests that some time may be given to the appellant to make some arrangement for alternative accommodation. The learned counsel for the respondent has no objection if one month's time is given to the appellant to vacate the house. Accordingly, it is directed that the appellant shall hand over the vacant possession of the house in dispute to the respondent on or before 19‑12‑1978. M.Y.H.??????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.