1980 PLP 621 (CLC)

Mian Muzafjar Ahmed for Appellant. Munir A. Sheikh for Respondent. Date of hearing : 24th June 1976. , The facts giving rise to this second appeal are that an application was filed by the respondent, Muhammad Ashraf against the appellant, Khadim Hussain Agha, for his ejectment from a house. The appellant did not appear before the Rent Controller, who was seized of the application despite service and, therefore, after recording the respondant's evidence the learned Rent Controller passed an order of ejectment against the appellant. The appellant made an application for setting aside the ex parse order of ejectment but without success. He, therefore, filed an appeal before an Additional District Judge, which was dismissed on the grounds that it was not competent, that proper court-fee had not been paid thereon and that the certified copy of the order of the Rent Controller had no, been appended to the appeal.

2. Feeling aggrieved by the order of learned Additional District Judge, the appellant has come up in second appeal to this Court.

3. Learned counsel for the appellant contended that the order assailed by the appellant before the learned Additional District Judge was not a decree inasmuch as it was the order whereby the learned Rent Controller had refused to set aside the ex parse order of ejectment and therefore, the appellant was not to value his first appeal as an appeal against the decree and pay court fee thereon accordingly. The value of the first appeal fixed by the appellant was Rs. 3 and he had affixed a court-fee stamp of the same value thereon. It is not disputed by the learned counsel for the appellant that had the appeal been against the order of ejectment passed by the learned Rent Controller its valuation would have been equal to 12 times the monthly rental of the house in dispute. Admittedly, the rent of the said house is Rs. 350 per mensem. 4. 1 am unable to agree with the learned counsel for the appellant. The concluding paragraph of the memorandum of appeal filed by the appellant before the learned Additional District Judge would clearly show that the appeal was directed against the ex pnrre decree dated 4-6-1976. It has been explained by the appellant in the first paragraph of the memorandum of appeal that on 4-6-1976 the said learned Court on the statement of the respondent passed an ex parte decree awarding one month for vacating the house in dispute. It is, therefore, evident that the appellant had challenged the order of ejectment passed by the learned Rent Controller and as such, the correct valuation of the appeal was 12 times the monthly rental of the premises in dispute. It was the duty of the appellant to value his appeal as aforesaid and also pay court-fee accordingly, but he failed to do so. He did not make an application for permission to make up the deficiency in court fee although, according to the record of the appellate authority, it was on 14-10-1978 that an objection was raised by the learned counsel for the respondent regarding the deficiency in the court-fee. Thereafter the appeal came up before the learned Additional District Judge on 18th October, 1978, 6th November, 7th November and 8th November, 1978 but on no occasion the appellant made 2n application for permission to pay the' requisite court fee. According to the impugned order, it was during the course of arguments that the learned counsel for the appellant offered to pay the additional court-fee, but as remarked by the learned Additional District Judge. his request had "come too late in the day" The appeal had been come time barred by them. In the circumstance the learned Additional District Judge, was perfectly justified in dismissing the appeal on the ground of non-payment of the requisite court-fee.

5. As for the other reasons given by the learned Additional District Judge for dismissing the appeal, namely, the in competency of the appeal and the failure of the appellant to fill copy of the order of the Rent Controller, learned counsel for the respondent did not support those reasons. Therefore, I need not discuss the same. 5-A. In result, the appeal fails and is dismissed with no order as to costs. M. Y. M. Appeal dismissed.