P L D 1967 Karachi 35 (PLP)

WAHIDUDDIN AHMED, J.-This reference has been made by the office in Second Appeal No. 287 of 1963 and Second Appeal No. 295 of 1963 arising out of orders passed by the First Appellate' Court under section 15(4) of the West Pakistan Urban Rent Restriction Ordinance, 1959, to resolve a dispute as to the proper Court-fee payable on the memorandum of appeal filed by the appellants. In the first case the appellant challenges the order of the subordinate Courts in rejecting the application for eviction of the respondent and in the second case the appellant has attacked the order of eviction passed against him.

2. It was urged on behalf of the appellants that they were not required to pay ad valorem Court-fee under Schedule I, Article 1 of the Court-fees Act. The office has not accepted this contention and demanded that ad valorem Court-fee should be paid on the value of the subject-matter in appeal. The Assistant Registrar, in both the cases has referred the points raised by the appellants for decision in order to resolve the difficulty.

3. In order to appreciate the contention raised by the appellants, it is necessary to refer to the relevant provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959. Under section 13 of the Ordinance, the Controller is empowered to pass an order for the eviction of a tenant on certain grounds mentioned in it. Under section 15 of this Ordinance, an appeal is provided in certain cases to such District Judges and Additional District Judges, who are specially empowered for this purpose by the Provincial Government under section 15(4) a further appeal is provided to the High Court. In those cases where special powers have not been conferred upon any of the District Judges or any of the Additional District Judges in any area, a direct appeal is provided to the High Court. The material portion of this provision is the Explanation to section 15(I), (2), (3) and (4) of the Ordinance, which is reproduced below: "'As appeal under this subsection shall be heard and determined as an appeal from an original decree under section 96 of the Code of Civil Procedure, 1908, if it is from an order of the Controller and as an appeal from the appellate order under section 100 of the said Code if it is from an order of the appellate authority and the provisions of Part VI of the First Schedule to the said Code relating to appeals shall, with such modifications as the context may require, apply to such proceedings." Section 17 of the Ordinance is also material for the decision of the question before us, which is in the following terms:- -"Every order made (under) section 10 or section 13 and every order passed on appeal under section 15 shall be executed by a Civil Court having jurisdiction in the area as if it were a decree of that Court." Thus it will be noticed that every order made under section 10 or section 13 and every order passed on appeal under section 15 shall be executed by a Civil Court having jurisdiction in the area as if it were a decree of that Court. Besides appeals against an order of the Controller to the District Judges or Additional District Judges are to be heard and determined as an appeal from an original decree under section 96 of the Code of Civil Procedure, 1908. Similarly appeals from order of the appellate authority are to be treated as under section 100, C. P. C. The explanation to section 15(1), (2), (3) and (4) further provides that the provisions of the First Schedule to the C. P. C: relating to appeals shall with such modifications as the context may require, apply to such proceedings. In view of this provision, it is quite clear that the orders of the Controller are to be treated as decrees and the provisions relating to appeal are almost on identical terms applicable to ordinary appeals under the Civil Procedure Code.

4. Mr. Haleem, the learned Assistant Advocate-General has urged before us that appeals in question should be stamped ad valorem under Schedule 1, Article 1 of the Court-fees Act and the office note for payment of Court-fee is fully justified. In support of his contention the learned counsel has referred us to the decision in Mr. Jagdish Pratap- Bahadur Singh v. Raj Kumar Udai Pratap Bahadur Singh (A I R 1938 All. 97), Official Liquidator, Universal Bank Ltd. v. M. U. Qureshi (A I R 1945 Lah. 146), Sita Ram v: Mool Chand (A I R 1954 All. 672) and Kishandas v. Parasram (A I R 1955 Raj. 81). The trends of these-decisions is that if an order appealed against, is a decree or having the force of the decree then it should be stamped under Schedule 1, Article 1 unless there is some other specific provision; as for example Schedule II, Article 17, Court-fees Art.

5. On the other hand, Mr. M. Safdar and Malik Muhammad Sated, Advocates, contended that the proceedings under the above-mentioned Ordinance are initiated by applications, which cannot be regarded as plaint in civil suits and are not required by law to bear ad valorem Court-fee under Schedule 1, Article I, Court-fees Act. Both the learned counsel, therefore, urged that any order passed in such proceedings is a mere order passed on an application and is not a decree of the Civil Courts or having the force of a decree so as to exclude it from the purview of Schedule II, Article

11. Mr. M. Safdar even went to the extent of arguing that appeal to this Court is not to the High Court but to persons designate and therefore, Schedule I, Article 1, of the. Court-fees Act has too application in the present case.

6. After hearing the learned counsel for the parties, it is perfectly clear to us that having an appeal under section 15 of the Ordinance the High Court is not to persona designata as contended by Mr. M. Safdar. The question of persona designat does not arise in the cases because the Provincial Government has not to nominate any Judge of the High Court for entertaining appeals. Under the relevant provisions appeal lies to the High Court itself. It appears to us that the decision of the question hangs on the determination of the point whether the order appealed against is a decree or having the force of the decree. In Official Liquidator v. M. U. Qureshi, a Full Bench decision, this aspect of the question was considered. The Full Bench made a distinction between an order that has by statute the force of a decree and an order that may by statute be enforced in the satire manner as a decree. In this connection, Sale, J. observed as under:- "But in my view, there is a distinction, both real and practical and not merely artificial, as the learned A. A.-G. contends, between an order that has by statute the force of a decree and an order that may by statute be enforced in the same manner as a decree. An order that is given by statute the force of a decree is an order that proprio vigors stands as a decree whatever the consequences, whereas an order "that may by statute be enforced as a decree is an order that may be of little or no effect, proprio vigors and only becomes effective, when executed by the method by which a decree may be executed. In other words, it is a mere shadow unless- and until life is infused into it by an application for execution." It is in this light that we would also consider the question raised in this reference. Under section 17 of the Ordinance an order passed by the Controller or by the Appellate Courts are to be executed by a Civil Court having jurisdiction in that area as if it were a decree of that Court. On the plain language of this provision of law it cannot be doubted that by statute an order passed in such cases has been given the force of the decree and it is not one of these orders which under the statute is to be enforced in the manner in which a decree is enforced. It is quite clear that section 17 of the Ordinance is not a mere provision as to the procedure which may be observed in enforcing the order. On the other hand it provides that the competent Court would execute such orders as if it were a decree of that Court. The appellant's contention that this provision of law simply provides a method of enforcing the order is untenable and must be repelled. We are further not at all impressed by the argument of the appellant's counsel that because the proceedings are initiated by an application, the provision relating to ad valorem court-fee on appeals cannot be applied in such cases. The memoranda of ground is presented to this Court as an appeal and will attract only such provision of the Court-fees Act which provides for charging stamps on appeals.

7. Appellants counsel laid much stress on the point that proceedings under the Ordinance are not in the nature of suits and the Controller and the District Judge in discharging the duty of appellate authority are not Courts. Reference in this connection was made to the decisions in Secretary of State v. Kundan Singh(A I R 1932 Lah. 374) and Corporation of City of Lahore v. Mst. Fatima Begum (P L D 1952 Lah. 258). But these decisions have no bearing on the question under consideration. In our view the point raised by the office is to be decided on the provisions of the Court-fees Act and .not with reference to the provisions of C. P. C. ''

8. After careful consideration of the arguments of the learned counsel for the parties, we have come to the conclusion that the orders appealed against provided for under section 15 of the Ordinance in question are decrees or at any rate orders having the force of the decree and are not covered by the pro visions of Schedule 11, Article

11. On this view of the matter the office's contention must prevail. We would hold that the Court-fee on such appeals is to be paid in 'accordance with Schedule I, Article

1. Accordingly, the reference is answered. K. B. A. Reference answered accordingly.