P L D 1986 Lahore 14 (PLP)

‑‑S. 15‑‑‑Provisional Constitutions Order (1 of 1981), Art. 9‑

Memorandum of appeal‑Non‑payment of court‑fee‑Effect‑District Judge, held, rightly dismissed appeal for non‑payment of ad valorem court‑fee on memorandum of appeal ‑ Constitutional petition requiring interference in just and legal order of District Judge was without merit and dismissed in circumstances. Rashid Murtaza Qureshi for Petitioner. This Constitutional petition is directed against the order dated 24‑6‑1985 passed by the learned Additional District Judge, Lahore directing the petitioner to pay ad valorem court‑fee on the appeal filed by him in a rent matter.

2. The facts necessary for the disposal of the petition are that at, ejectment petition was filed against the petitioner by Muhammad Bashir respondent No. 1 on the grounds of default in payment of rent and damage, The learned Rent Controller passed an Order under section 13 (6) of the Urban Rent Restriction Ordinance, 1959 directing the petitioner to deposit rent from July, 1983 to June, 1984 at the rat9 of Rs. 800 p.m. before 12‑1‑1985. He failed to comply with the said order. Consequently his defence was struck off and his ejectment was ordered by the learned Rent Controller on 16‑3‑1985. The petitioner filed an appeal against the said order affixing a court‑fee of Rs. 15 only on the memorandum of appeal. After hearing the learned counsel for the petitioner. the learned Additional District Judge vide his order dated 24‑6‑1985 directed the petitioner to pay ad valorem Court‑fee on the memorandum of appeal on or before 8th of July, 1985 failing which his appeal shall be deemed to have been dismissed. Hence this petition‑

3. It is contended by the learned counsel for the petitioner that the law laid down in Habib Ismail Bajwa v. Khawaja Ghulam Mohayyud Din (P L D 1970 Lah. 429) and Khan Ghulam Hasan Khan v. Doctor Rashid Ahmad (PLD 1967 Kar, 35), is no longer a good law in view of the amendment introduced by the Punjab Ordinance No. IX of 1979, whereby the Controller alone is the executing authority, and further that the Punjab Notification ‑No. 353‑80/248‑ST-I, dated 4.2‑1980 has remitted the payment of court‑fees in respect of matters the value whereof does not exceed Rs. 25,000.

4. I have heard the learned counsel for the petitioner nit length. Before amendment section 17 of the Urban Rent Restriction Urdinavc^9 1959 was as under .‑

"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." After amendment of 1979 it is as follows :

"Every order made under section 10, section 13, section 13‑B and every order passed in appeal under section I'S shall be executed by the Con troller as if it were a decree of a civil Court." Prior to the above amendment orders made under section 10, section I and every order passed in appeal under section 15 were executable by a civil Court having jurisdiction in the area as if it were a decree of that Court. But now these orders are executable by the Controller as if it were a decree of civil Court. The question as to who executes the orders whether the Controller or the civil Court is not of much significance and the crucial question is as to the force of the said orders. In this context a reference may be made, to Syed Sarwar Abbas v. Syed Muhammad Taqi Rizvi (1969 S C R 689) where it was observed "that by virtue of section 13 of Restriction Ordinance the order had the force of a decree passed by a Civil Court. Section 17 as it stands today is also to the same effect and says that orders made under section 10, section 13, section 13‑B and every order passed in appeal under section 15 shall be executed as if it were a decree of a civil Court. It would, there fore, be seen that the amendment of section 17 has not affected or belittled the force of the orders passed under the aforementioned section of the ibid Ordinance.

4. As regards the next contention that the petitioner is not liable to payment of court‑fee because of the remission granted by the Punjab Government on matters the value whereof does not exceed Rs. 25,000 it appears to be devoid of any legal force because the court‑fee has been remitted on civil and revenue suits and on complaints in Criminal cases, and not on the petitions and appeals under the Rent Restriction Ordinance. Since the ejectment petitions are different froth the suits or complaints in criminal cases therefore, the said Notification has no application to the ejectment proceedings or the appeals under the Rent, Restriction Ordinance. The question as to what was the court‑fee payable on the memorandum of appeal in the ejectment matters was considered by the late Karam Elahi Chauhan, J. in Habib Ismail Bajwa v. Khawaja Ghulam Mohayyud Din and he held that appeal against the order of the Rent Controller having the force of a decree was liable to be stamped as laid down in Khan Ghulam Hasan Khan v. Doctor Rashid Ahmad. In the said cases it was held that appeals under the Ordinance are liable to bear ad valorem court‑fee under Schedule I Article 1 of the Court Fees Act. It is a D.B. decision and still hold the field and is not shown to have been set aside by the Supreme Court. It is being consistently followed by the Courts. Lai Shah v. Muhammad Ishaq (P L D 1977 Lah. 1058) and Nawab Din V. Basharat Ali (‑N L R 1980 Lah. 512) may be cited in this behalf. The upshot of the above discussion is that the learned Additional District Judge had rightly required the petitioner to pay ad valorem court fee on the memorandum of appeal and the petition being without any merit is dismissed accordingly.

5. On the request of the learned counsel for the petitioner two wee time is granted to the petitioner to make good the deficiency of the court‑fee. A. A. Petition dismissed.