1986 PLP 1653 (CLC)

"It is correct to say that an amount of Rs.2,000 are lying with me as fixed deposit of the opponent." The amount admitted by the respondent is precisely equal to the amount the respondent has claimed from the appellant as rent arrears. Obviously if necessary adjustment was made no arrears would be outstanding against the appellant. The learned Rent Controller has overlooked this aspect of the case. Even the learned counsel for the respondent concedes that for above reasons, he does not support the findings of the learned Rent Controller on the issue of the default. Accordingly the impugned judgment cannot be sustained on the ground of default. The learned counsel for respondent, however, assails the appeal on the ground of limitation. Therefore, the learned counsel for both the parties confined their arguments only to the point if the appeal was barred by limitation. The learned counsel for the respondent contended that the appeal not being within time was liable to be dismissed. In this connection he referred to rule 323 (1) of the Sind Chief Courts Rules which reads as under:‑ "As soon as an order for a copy or translation has been made, the Record Keeper or under his supervision the Head Copyist, shall number and register the application in the order of its receipt in the Register of Application for copies and translation and shall enter on the application its serial number. He shall also at once, if possible, or during the same day but ordinarily not later than the following working day, ascertain the amount of copying, comparing and translation fees, when leviable, according to the scale prescribed in Chapter VIII, Appendix D and enter them on the application and communicate them to the applicant." Basing his argument on the above rule, he submitted that after the appellant presented application for certified copy of the order, it was his duty to have followed it and ascertained the estimated costs that he was required to pay and on such ascertainment he should have deposited the said costs within the period prescribed by rule 324 (2) . According to him, as the appellant took two months to deposit the costs as against the prescribed period of seven days from the date of estimation thereof he clearly was to balme for the delay made in preparation and delivery of certified copy of the order and consequently for the delay in filing of the appeal. On the other hand the learned counsel for the appellant was of the view that until the estimated costs were 'communicated' to the appellant within the meaning of rule 323 (1) hereinabove, he could not possibly deposit the same lie submitted that as there is no indication on the record that any such communication was ever made to him either orally or through notice or by any other means the appellant was not in any way at fault. He further averred that since the application for certified copy of the order was not rejected under rule 324 (2), the presumption would be that the delay in depositing the estimated costs was not laid at the door of the appellant. In other words what the learned counsel meant to say was that had the appellant failed to deposit the costs within the period mentioned in rule 324 (2), his application would have been dismissed instead of delivering certified copy of the impugned order to him. As provided in rule 323 (1) hereinabove estimation of the costs to be paid for the certified copy of the order, the same are to be 'communicated' to the applicant who again is required by rule 324 (2) to deposit the estimated costs communicated to him within seven days of the communication. The question is how communication of the estimated costs is to be made. The learned counsel for the respondent referred to the dictionary meaning of the word 'communicate' to show that it means 'to make known.' According to him if the appellant had pursued his application, it could be made known to him as to how much he was required to deposit as the estimated costs. The learned counsel submitted that the construction of rule 323 (1) does not envisage the communication of the estimated costs by any formal notice. I regret I cannot persuade myself to agree with the above argument. The estimated costs required to be communicated to the applicant can, in my opinion, be communicated to aim only by putting him to notice, which may not necessarily be in writing. It is enough to show that necessary intimation of the estimated costs to be paid by the applicant has been conveyed to him. The intimation may be in writing or orally or by any other means. All that is required by the above rule to do is that it should be made known to the applicant the amount of the estimated costs he is required to deposit for the certified copy he had applied for. Once he receives such communication it would then be for him to ensure that he has deposited the said costs within seven days of the receipt of the communication, the above view obviously finds support from the wording of rule 323(1 ) itself. On reading the said rule closely, it would appear that it is not mandatory for the copying branch to compute the estimated costs immediately on presentation of the application for the copy. If need be, the computation of the costs could be deferred until the next day., This being so, unless the appellant is informed by some means either by notice in writing or by some other means as to how much he is required to deposit as the costs it is not expected of him to make such deposit. On presentation of the application for the copy, the applicant can even be asked to present himself on the specified date and time in order to collect information as to the estimated costs; such instruction, in my opinion, can serve as "communication" to him within the meaning of rule 323(1) and consequently the compliance of the said rule. It is an admitted position that no communication of any kind or) in any manner was made to the appellant, informing him about the estimated costs on any specified date. Moreover his application for a certified copy was not rejected under sub‑rule (2) of rule

324. Consequently the argument of the learned counsel for the appellant is not without force that the appellant was not in any way, responsible for the delay in depositing the costs. As per endorsement made for the certified copy of the impugned order, although the costs were estimated on 27‑8‑1983 the same were deposited on 26‑10‑1983. Apart from above, both learned counsel have relied upon the Supreme Court authority reported as Mst. Jamila Khatoon and another v. Mst. Tajunnisa and others P L D 1984 S C

208. The observations of the Supreme Court pertinent to this case are as under:‑ "It may be pointed out that rule 323(1) does not place any obligation on the office of the Court to communicate to the applicant the requirement to supply the stamp. The only reference to the supplying of stamp in the relevant rules is contained in sub‑rule (2) of the rule

324. The absence of reference to the requirement for furnishing the requisite stamp, in the case of certified copies, in rule 323 is apparently understandable, since communication of the amount of copying fee is necessary because it is a variable factor depending upon the length of the judgment or order in terms of words as required by Chapter VIII, Appendix D, whereas so far as the stamp on certified copies are concerned, it is fixed by law in the Court Fees Act Schedule I, Item 6, Rules 324(2), therefore, requires that once the estimated amount of fee is communicated to the applicant under rule 3230), he is required to deposit the amount as well as the requisite stamp within seven days from the date of such communication, otherwise his application is liable to be rejected. The communication under rule 323(1) apparently has nothing to do with the supply of stamp but only fixes the terminus a quo for the commencement of the seven days period for the deposit of the copy fees and the stamp." Although direct interpretation of the word 'communicate' occurring in rule 3230) has not been made in the above authority, yet by implication it clearly shows that communication of the amount of copying fee is necessary because it is a variable factor depending upon the length of the judgment or order in terms of words contained therein. It further shows that once the amount of fee is communicated to the appellant under rule 323(1), he is required to deposit the said amount as well as the requisite stamps within 7 days from the date of such communication, or else his application is liable to be rejected. Therefore, in view of above authority no doubt is left in my mind that as soon as the costs were estimated by the copying agency they had to be 'communicated' to the appellant who again under rule 324(2) was under the obligation to deposit the costs so estimated within 7 days of such communication. How the communication was to be made is not specifically provided in the said rule. All that the rule requires is that the appellant was to be informed about the amount of the cost to be deposited by him. Therefore, it was immaterial if formal notice was issued to him or the costs were communicated to him in any other manner. As has been pointed out above, there is no material on record to show that the appellant was informed about the estimated costs on any particular date. Absence of such material coupled with the fact that the application for copies was not rejected, clearly shows that the appellant was not to blame for the delay. Consequently, it cannot be held that appeal filed by him is barred by limitation. It may also not be out of way to observe that at the time of admission of the appeal no objection was raised by the office with regard to limitation. When the office comes across such defect, it invariably brings the same to the notice of the Judge before admission of the appeal to regular hearing since no such objection was raised the presumption would go in favour of the appellant that he :was not at fault for the delay. For above reasons, the appeal is allowed with no order as to costs and the order of the learned Rent Controller is set aside. A.A. Appeal allowed.