1986 PLP 792 (CLC)

2. Notice of the petition was served on the respondent. He appeared before me on 29th June, 1985 and stated that he was not interested in the controversy raised in the instant petition and prayed that the matter may be decided in his absence. He was, therefore, not present on 30th September and 1st October, 1985 when the civil revision was 'finally heard.

3. In view of the nature of the question raised by the petitioners, which was in relation to the revenues of the Province of the Punjab, I asked the Advocate‑General, Punjab, to assist me in deciding the above question. He deputed Mr. Khalil Ramday, Additional Advocate‑General for the purpose.

4. Original notification, referred to above, reads as follows:‑‑-- "No. 5487‑78/1809‑ST‑I.‑‑ In exercise of the powers conferred by section 35 of the Court Fees Act, 1870, the Governor of the Punjab is pleased to remit, with effect from the 1st August, 1978, court‑fee payable on plaints in civil suits under Article I of Schedule I when the amount or value of the subject‑matter does not exceed twenty‑five thousand rupees and on complaints in criminal cases under Article 1(b) of Schedule II."

5. The amended notification, by which the original notification was modified, makes the following reading:‑‑ "No. 353‑80/248‑ST‑I. In exercise of the powers conferred by section 35 of the Court Fees Act, 1870, the Governor of the Punjab in partial modification of the Punjab Government Notification No. 1487‑78/1800‑ST‑I, dated 9th July, 1978, is pleased to remit court‑fee on any civil and revenue suits the value of the subject‑matter whereof or of the relief claimed therein, does not exceed twenty‑five thousand rupees, at all stages, in all Courts, including revenue Courts, and on complaints in criminal cases."

6. On behalf of the petitioners, who are functionaries of the Federal Government, this case was argued by Sh. Maqbool Ahmad II, Advocate. He is also Standing Counsel for the Federal Government. His contention was that according to the amended notification the petitioners were not required to pay any court‑fee as the value of the subject‑matter of the appeal did not exceed Rs.25,

000. Relying on Allah Rakha v. Col. Abdul Ghafoor P L D 1978 Lah. 1364 it was urged by him that the District Judge, who heard the appeal, was a Court within the meaning of the said notification. When I asked learned counsel for the petitioners whether the court‑fee was chargeable on the application made to the learned Rent Controller, he replied in the negative. His argument was that the said application was a plaint as envisaged by the original notification because it contained all the ingredients of a plaint. Surprisingly enough, it was also submitted by him that the learned Rent Controller was a Court. At the same time, it was maintained by him that the matter before him was not a suit. It was urged by learned counsel for the petitioners that even if court‑fee was payable on the application made to the learned Rent Controller, it was not required to be paid on the appeal against his order. His argument was that the position of a Rent Controller was similar to that of a Family Court. He cited Abdul Ghafoor v. Muhammad Rafique and another P L D 1983 Lah. 383 in which it was held that no court‑fee was payable on memorandum of appeal from order of a Family Court.

6. Learned Additional Advocate‑General did not subscribe to the views expressed by learned counsel for the petitioners. It was argued by the learned Additional Advocate‑General that a party was not obliged to pay court‑fee on an appeal if proceeding giving rise to the appeal was exempt from the payment of court‑fee. Referring to the precedent cases of Faqir Muhammad v. Dr. Muhammad Yasin and 2 others P L D 1964 (W.P.) Lah. 686; Khadim Mohyuddin and others v. Ch. Rehmat Ali Nagra and another P L D 1965 S C 459 and Din Muhammad v. Hidayat Hussain P L D 1968 Lah. 207, it was submitted by him that the Rent Controller was not a Court and, therefore, the aforementioned notifications were not applicable to proceedings before him or to the appeals directed against his orders. Thus, according to the learned Additional Advocate‑General, petitioners were liable to pay court‑fee for the appeal preferred by them and the order of the learned District Judge by which he had declined to refund the court‑fee was unexceptionable.

7. The original notification was issued for making justice available to persons filing civil suits the value of the subject‑matter whereof or of the relief claimed therein did not exceed Rs.25,000 or complaint in criminal cases, without charging anything from them. Later on, however, when it was realised that the remission allowed by the original notification was admissible at initial stages of the aforesaid suits and not at their subsequent stages, the amended notification was issued so as to grant remission at all stages thereof. In addition, this concession was extended to revenue suits of the said value brought before the revenue Courts. It would, therefore, follow that if exemption from payment of court‑fee is available at the original stage of any case it will also be available at the subsequent stages thereof, in other words, if in any case there is no exemption qua the forum of original jurisdiction, it cannot be claimed before any higher forum dealing with that case. In this view of the matter, I am unable to agree with learned counsel for the petitioners that the petitioners were not required to pay court‑fee on their appeal even though the respondent had to pay court‑fee on the application made to the learned Rent Controller which 'resulted in the order assailed in their appeal. On the other hand, I endorse the opinion expressed by the learned Additional Advocate‑General that the exemption contemplated by the notification under discussion can be claimed at the appellate stage of any proceedings only if it is available at the initial stage thereof.

8. I now proceed to examine if the application made to the learned Rent Controller did not need any court‑fee. Words "plaints", "suits" and "Court" occurring in the notification under consideration are very helpful in understanding the real intention of the Provincial Government. Such notifications are generally vetted by the Law Department of the provincial Government. That Department is manned by officers drawn from the judiciary or others having legal background. They are well aware of distinction between "plaint" and "application". According to section 26 of Code of Civil Procedure, a suit is instituted by presenting a plaint. As against this, under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, a landlord who seeks to evict his tenant is required to make an application to the Rent Controller in this behalf. I am, therefore, clear in my mind that the word "plaint" was used in the original notification in contradistinction to the word "application". Applications "filed before the Rent Controller cannot, therefore, be treated as "plaints" for the purpose of original notification even though such applications are comparable to the plaints. Further, as laid down in cases of Faqir Muhammad, Khadim Mohy‑ud‑Din and another and Din Muhammad, cited by the learned Additional Advocate‑General, the Rent Controller is not a Court. I was shocked to note that even after the citation of the above cases it was maintained by learned counsel for the petitioners that the Rent Controller is a Court. It was, however, appreciated by him that case brought before the Rent Controller by means of an application is not a suit. Position, therefore, boils down to this that proceeding by which jurisdiction of the Rent Controller is invoked is not a plaint, the case taken to him is not a suit and it is not heard and decided by him as a Court. Original notification is, therefore, not attracted to applications made to the Rent Controller.

9. It has already been found that if original notification is not applicable to a case when it is before the forum of first instance, it is not attracted to subsequent stages of the case at which it is heard by any higher forum. Since, in the instant case, the original notification was not applicable to application made to the learned Rent Controller, the amended notification is also not attracted to the appeal filed by petitioners against his order, even though the appeal was preferred before the District Judge as a Court. The case of Allah Rakha is, therefore, of little avail to the petitioners.

10. The case of Abdul Ghafoor, which was also relied upon by learned. counsel for the petitioners, is distinguishable from case in hand. In the case under report it was held inter alia that court‑fee was payable for appeal against the order of a Family Court. As ruled in the cited case, Family Court is a Court. Proceedings before the said Court are initiated by means of a. plaint. This is evident from section 8 of the Family Courts Act, 1964. As provided in section 7 of the said Act, the case thus brought before the Family Court is a suit. Position of a case filed before the Rent Controller is, however, as explained above, altogether different. Abdul Ghafoor's case, therefore, does not advance the case of the petitioners.

11. Perhaps it will not be out of place to mention here that original notification was issued as far back as in 1978. Five years have also elapsed since the issuance of the amended notification. During the period of about two years preceding the issuance of amended notification several rent cases were filed by or against Provincial Government and others but the amended notification was not made applicable to such cases although its applicability was extended to revenue suit which did not find mention in the original notification. Even during the period of about five years following the coming into force of the amended notification nothing has been done to exempt rent cases from the payment of court‑fee. When the case of Abdul Ghafoor was heard by my learned brother, Rustam S. Sidhwa, J., Mr. Khalil Ramdey, who was then an Assistant Advocate‑General, appeared on behalf of the Provincial Government and submitted that he had instructions to state that the said Government was drafting Ordinance to remove all misgivings or anamalies arising out of the wording of the amended notification and that the said Ordinance was expected to be introduced at an early date. Observations of my learned brother in this behalf read as follows:‑‑-- "On behalf of the Provincial Government Mr. Khalil Ramdey, Assistant Advocate‑General, Punjab, submitted that the impugned Notification covered all documents which were chargeable to court‑fees, if they were filed in any civil or revenue suit, right from the date of its first institution through every step during its trial in the original jurisdiction and through every step during the proceedings in the review, revisional or appellate jurisdictions and court‑fees on all such documents stood remitted. He submitted that he had instructions to state that the Provincial Government stood by the said Notification to this unlimited extent. He further submitted that he had further instructions to state that the Provincial Government was already drafting an Ordinance to remove all misgivings or anomalies arising out of the wording of the second Notification and that the said Ordinance was expected to be introduced at an early date." Ordinance referred to in the said observations has, however, not been made or promulgated as yet although a period of about five years has since gone by. If it were the intention of the Provincial Government to allow exemption in the case of proceedings before the Rent Controller and appeals arising out of those proceedings, it would have made provisions in this regard by promulgating the Ordinance alluded to by the learned Assistant Advocate‑General or by further amending the original notification but this has not been done. It, therefore, appears that the Provincial Government has no such intention.

13. In conclusion, I hold that neither the original notification nor the amended one is attracted to cases before the Rent Controller or to appeals arising out of those cases and, therefore, Court‑fee is payable for the said cases and the appeals. In this view of the matter, appeal preferred by the petitioners before the learned District Judge was chargeable to Court‑fee and he was justified in refusing to refund the Court‑fee paid by them on that appeal.

14. There is no merit in this petition. It is, accordingly, dismissed with no order as to costs. H . B . T . Revision petition dismissed.