1989 PLP 466 (MLD)

Date of hearing: 16th April, 1989. This petition under Art. 199 of the Constitution of the Islamic Republic of Pakistan, 1973, calls in question the judgment dated 21‑2‑1989, passed by the learned Additional District Judge, Jhang, whereby he dismissed the appeal of the petitioner for failure to make up the deficiency in the court‑fee within time.

2. Briefly, the facts are that respondent No. 1 filed an ejectment application under section 13 of the Punjab Rent Restriction Ordinance, 1959, against the petitioner in respect of House No. 245, Block IX, Shaheed Road, Jhang Saddar. In view of the pleadings of the parties, the learned Rent Controller framed a preliminary issue, "whether the relationship of landlord and tenant existed between the parties". This issue was decided against the petitioner. In consequence, the learned Rent Controller, vide order dated 1‑6‑1988, accepted the ejectment application. The petitioner filed appeal which was heard by the learned Additional District Judge, Jhang, who vide order dated 21‑2‑1989, dismissed the same solely on the ground that no court‑fee was affixed on the Memorandum of Appeal and the permission to make up the deficiency at the argument stage was not justified.

3. Mr. MA. Zafar, learned counsel for the petitioner, relied on Siddique Khan and 2 others v. Abdul Shakur Khan and another (PLD 1984 SC 289), to contend that bar of limitation is not a relevant consideration for making deficiency in the court‑fee. Reference was also made to Sh. Muhammad Islam v. Adeeba Khanum and another (1985 CLC 1619), to contend that the appeal ought not to have been dismissed without affording an opportunity to the petitioner to make good the deficiency of court‑fee. Reliance was further placed on Ata Muhammad v. Abdul Aziz and others (1988 SCMR 759), to contend that reasonable time should have been allowed by the Appellate Court to make up the deficiency.

4. Mr. Laqa Haider Zaidi, learned counsel for respondent No. 1, relied on Nawab Din v. Basharat Ali (1986 MLD 692), to contend that where the facts and circumstances of a case smack negligence and contumacious conduct, the time for making good the deficiency in the court‑fee could not be granted. In the precedent case, however, the order of the learned District Judge refusing to grant extension of time was upheld on the ground that the proper court‑fee had not been paid at the time of appeal and it was not competent when the deficiency was made good on 10‑11‑1977 as the appeal has become barred by time. Learned counsel for respondent No. 1 also relied on Muhammad Anwar v. Syed Imam (1982 CLC 436), in which the delay was not condoned by the first Appellate Court in making good the deficiency in the court‑fee on the ground that it was barred by limitation. This order was upheld by the High Court.

5. The ratio laid down in Nawab Din's case (supra) and Muhammad Anwar's case (supra) are not relevant, in that, this controversy stands concluded by the judgment of the Supreme Court in the case of Siddique Khan (Supra) that the bar of limitation is not a relevant consideration for the supply of deficiency in the court‑fee. The case‑law cited by the learned counsel for the petitioner supports his contention.

6. In view of the law laid down in Siddique Khan's case (supra), it was obligatory on the learned Additional District Judge to afford at least one opportunity to the petitioner to supply the deficiency m court‑fee before rejecting I the appeal. The petitioner was neither obstinate nor stubborn, nor failed to comply with any lawful orders passed by the Appellate Court in making good the deficiency. On the contrary, no such opportunity was allowed to him. This being so, in the facts and circumstances of the present case, it cannot be held that the petitioner was guilty of contumacious conduct as explained in Siddique Khan's case (supra). ???????????

7. In view of the above, the impugned order of the learned Additional District Judge, Jhang, is declared as without lawful authority and of no legal effect. The case is remanded to him for decision afresh on merits, subject to the petitioner's making good the agreed deficiency in court‑fee amounting to Rs. 180 by 23‑4‑1989, to which the learned counsel for the respondent No. 1 has no objection. The writ petition is accepted to the extent indicated above, but the parties shall bear their own costs. H.B.T./S‑409/L ?????????????????????????????????????????????????????????????????????????????????? Petition accepted.