1995 PLP 864 (MLD)

‑‑‑‑Art.199‑‑‑Court Fees Act (VIIl of 1870), S.7‑‑‑Appeal filed before Appellate Court below against judgment of Trial Court passed on basis of oath was accepted by Appellate Court below despite no required court‑fee was paid on memorandum of appeal‑‑‑Appellate Court below accepting appeal, remanded case to Trial Court with direction that case be tried on all issues which had been framed‑‑‑Such order of Appellate Court had been challenged by petitioner contending that appeal filed without payment of proper court‑fee was not maintainable and that Appellate Court could not have directed decision of case on merits‑‑‑Respondent agreed to pay required court‑fee and he further agreed that he had no objection if Constitutional petition was disposed of in terms that order passed by Appellate Court was modified and matter be left open for Trial Court for decision of case in accordance with law‑‑‑Petitioner having agreed to terms of offer, Court ordered accordingly. Ras Tariq Chaudhry for Petitioner. Ch. Ghulam Rasool for Respondents. Niaz Ahmad, petitioner filed an ejectment petition against the respondent which was contested and the issues were framed. During the course of trial, the parties agreed to get the matter decided by offer of oath. In pursuance of the offer oath was taken and hence the learned Rent Controller passed an order of ejectment against the respondent who challenged the said order in appeal without payment of court‑fee which has been accepted by the learned lower appellate authority on the ground that oath has not been taken in the terms offered, hence the order of ejectment could not have been passed and further directed that the case shall be tried on all the issues which have been framed. This order has been challenged in this Constitutional petition.

2. Mr. Ras. Tariq Chaudhry, Advocate, contends that the appeal was not properly instituted, as the value for the purpose of court‑fee of the appeal is Rs.18,000 but no court‑fee was paid; that the learned lower Court could not have directed the decision of the case on issues on merits even if the order passed on oath was set aside, hence the impugned order is illegal. Learned counsel for the respondent states that the respondent is ready to pay the amount of court‑fee and further that he has no objection if this writ. petition is disposed of in terms that the order passed by learned lower appellate Court is modified and the portion of the judgment wherein it has been directed that the case shall be decided on issues framed in the suit shall be deleted and the matter shall be left open for the learned trial Court for decision of the case in accordance with law Learned counsel for the petitioner states that he has no objection to the disposal of the writ petition in the terms of the offer/statement made by the learned counsel for the respondent. Order accordingly.

3. Writ petition stands‑disposed of in the above terms the court‑fee amounting to Rs.1,350 shall be paid by the respondent within a period of two months. This amount shall be deposited in the learned lower appellate Court. Parties are directed to appear before the learned trial Court on 27‑11‑1994. H.B.T./N‑291/L Order accordingly.