' IJAZ-UL-AHSAN, J.---The petitioners assail an order dated 8-10-2009 passed by the learned Special. Judge (Rent), Lahore whereby he accepted the application filed by the respondent for deposit of fine in terms of section 9(b) of the Punjab Rented Premises Ordinance, 2007 (Ordinance XXI Of 2007). The Ordinance has been re-enacted as the Punjab Rented Premises Act, 2009 ("the Act"). All proceedings and actions taken under the Ordinance have been saved by virtue of section 36 of the Act. For facility of reference, both the Ordinance and the Act shall hereinafter be referred to as the Act.
2. Brief facts leading to the filing of the present petition are that the respondent filed an ejectment petition against the petitioners on 17-1-2009. The petitioner filed an application under the Act, for grant of leave to contest the ejectment petition. The main ground taken in application was that the ejectment petition was liable to be dismissed because the same had been filed in violation of the provisions of section 9(b) of the Act. After hearing arguments of both sides the learned Special Judge (Rent), Lahore dismissed the ejectment petition on the ground that the fine required to be paid by the landlord/ejectment petitioner in terms of section 9(b) of the Ordinance had not been deposited. Payment of fine was as condition precedent for filing of an ejectment petition. The said amount of fine had not been paid. Therefore, the ejectment petition was liable to be dismissed. It was however, observed that the ejectment petitioner will be well within his rights to file a fresh ejectment petition after fulfilling requirements of section 9 of the Act.
3.The respondent filed another ejectment petition on 13-6-2009. The petitioners received notice, appeared in the Court and moved an application seeking dismissal of the ejectment petition. This time again, the ground taken was that the provision of section 9(2) of the Act had not been, complied with. It appears from the record that simultaneously the respondent also moved an application before the Special Judge (Rent) Lahore seeking permission to deposit the fine (equivalent to 10% of the annual rent) in terms of section 9(b) of the Act. Vide order dated 8-10- 2009, the application of the petitioners seeking dismissal of the ejectment petition was dismissed, while that of the respondent for deposit of fine was allowed. A direction was issued to deposit fine in terms of section 9(b) of the Act in the Government Treasury within a period of 5 days, failing which the ejectment petition would be deemed to have been dismissed. The petitioners are aggrieved of this order.
4.The learned counsel for the petitioners submits that the impugned order dated 8-10-2009 passed by the Special Judge (Rent) Lahore is arbitrary, in excess of jurisdiction and violative of the law. He submits that there is no provision in the Act granting powers to the Special Judge (Rent) Lahore to grant or enlarge time for compliance with provisions of section 9(b). He submits that in the absence of such compliance of provisions of section 9(b), the Rent Tribunal does not have the jurisdiction even to entertain the ejectment application. According to him it is a pre-condition before filing of the ejectment petition to deposit fine equivalent to 10% of the Annual Rent in the Government Treasury. Laying emphasis on the word, "entertain", he adds that unless the pre- condition is fulfilled the Special Judge (Rent) has no option but to summarily dismiss the application upon noticing nonpayment of fine, without taking any further proceedings in the matter. He, therefore, submits that the order of the Special Judge (Rent) is coram non judice, without jurisdiction and without lawful authority.
5. The learned counsel for the respondent has defended the impugned order. He submits that the provisions of section 9(b) are directory in nature and not mandatory. He points out that no penal consequences are provided in the Act for noncompliance thereof, other than a power under section 9(b) of refusal to entertain. He further submits that the Rent Tribunal also has inherent powers to grant or enlarge time, because it would advance the ends of justice.
6. 1 hav e heard the learned counsel for both sides at length. I have also gone through the impugned order and examined the provisions of section 9(b) of the Act. A perusal of the preamble of the Act makes it amply clear that the rationale for introducing this new law is to provide a mechanism for expeditious settlement of the disputes between the landlord and tenant. It is common ground between the parties that if this petition is accepted and the impugned order is set aside, the respondent will still have the right to file a fresh ejectment petition. Both sides agree that the issue of limitation is not relevant in the facts and circumstances of this case.
7. In order to appreciate the issue involved in this case, it is necessary to understand and interpret provision of section 9 of the Act and to determine its scope and parameters. Section 9 is couched in the following language.
' Section 9. Effect of non-compliance.--If a tenancy does not conform to the provisions of this Act, the Rent Tribunal shall not entertain an application under this Act---
(a) on behalf of the tenant, unless he deposits a fine equivalent to fine per cent of annual value of rent of the premises in the Government Treasury; and
(b) on behalf of the landlord, unless he deposits a fine equivalent to ten percent of the annual value of the rent of the premises in the Government treasury.
8. The word "entertain" is central to interpretation, of section 9 and much emphasis has been laid on this word to urge that an ejectment petition, that does not comply with the provisions of section 9 needs to be summarily thrown out. The word entertain has not been defined in the Act. Therefore, its ordinary .Meaning and usage in the English language has to be looked at in order to arrive at the correct interpretation of this provision. According to the Oxford English Dictionary one of the meaning of the words is:-- "to consider or allow yourself to think about an idea."
9. The Chamber's 21st Century Dictionary defines the word "entertain" as follows:-- "entertain. Verb (entertained, entertaining)
1. To provide amusement or recreation for someone.
2. Tr & intr to give hospitality to (a guest), specially in the form of a meal. 3 to consider or be willing to adopt (an idea or suggestion, etc.)
10. Black's Law Dictionary defines "entertain" as follows:-- "entertain, vb.
1. To bear in mind or consider, esp, to give judicial consideration to 2. To amuse or please.
3. To receive a person as a guest or provide hospitality to (a person)."
11. Stroud's Judicial Dictionary of words and phrases provides the following definition of the word "entertain".
"Entertain.--An Appeal is "entertained" by a value added tax tribunal from the date of the service of the requisite notice of appeal (Excise Commissioners v. Hubbard Foundation Scotland [1982] S.T.C.
593)"
12. In DW Superintendent PWR Multan v. A Khaliq 1984 SCMR 1311 their lordships of the Supreme Court of Pakistan observed, "The word "Entertain" in legal parlance means 'adjudicate' or proceed to consider on merits." In the legal and Commercial Dictionary by Mitra (page 270) and in Words and Phrases by Swendra Malik (page 232) the word has been defined to mean "proceed or adjudicate upon on merits.
13. In Pakistan Steel Workers Union v. Registrar Trade Unions Karachi 1992 PLC 715 and All Pakistan Newspapers Society v. Federation of Pakistan PLD 2004 SC 600 "entertain" has been defined to mean "not merely filing of an application or institution of proceedings but would mean adjudicated upon or proceed to consider on merits."
14. From a perusal of the above definitions, it appears that refusal to entertain does not mean that an application (without payment of fine) will not be allowed to be filed, will not be accepted by the Court Staff, will not be placed before the Court. It means that all of the above acts can and should be done but when such application comes before the Court, it will not consider, proceed with the application or adjudicate the same on merits unless the fine as envisaged in subsection (a) or (b) of section 9 (as the case may be) has been deposited in the government treasury. The question is whether a Tribunal before which such an application comes, is required to dismiss the same summarily or can it allow the applicant time to comply with the requirement of deposit of fine before passing an order for dismissal or proceeding with the case on merits.
15. In order to find an answer to this question, it will be useful to examine certain other laws that require a litigant to pay fees or other charges before he approaches a Court of law. The Court Fees Act, 1870 is one such legislation. Section 6 of the Court Fees Act, 1870 provides as follow:-- "6. Fees on documents filed, etc., in Mufassal Courts or in public offices.---Except in the Courts hereinbefore mentioned, no document of any of the kinds specified as chargeable in the first or Second Schedule to this Act annexed shall be filed, exhibited or recorded in any Court of Justice, or shall be received or furnished by any public officer, unless in respect of such document there be paid a fee of an amount not less than that indicate by either of the said Schedules as the proper fee for such document."
16. If a question arises relating to valuation for determination of any fee chargeable section 12 of the- Court Fees Act envisages as follows:-- "12. Decision of question as to valuation.--(i) Every question relating to valuation for the purpose of determining the amount of any fee chargeable under this Chapter on a plain or memorandum of appeal shall be decided by the Court in which such plaint or memorandum, as the case may be, is filed and such decision shall be final as between the parties to the suit.
(ii) But whenever any such suit comes before a Court of appeal, reference or revision, if such Court considers that the said question has been wrongly decided to the detriment of the revenue, it shall require the party by whom such fee has been paid to pay so much additional fee as would have been payable had the question been rightly decided, and the provisions of section 10, paragraph (ii), shall apply.
17. In addition section 28 of Court Fees Act provides as follows:-- "28. Stamping documents inadvertently received.---No document which ought to bear a stamp under this Act shall be of any validity, unless and until it is properly stamped.
' But, if any such document is through mistake or inadvertence received, filed or used in any Court or office without being properly stamped, the Presiding Judge or the head of the office, as the case may be, or, in the case of a High Court, any Judge of such Court, may, if he thinks fit, order that such document be stamped as he may direct; and, on such document being stamped accordingly, the same and every proceeding relative thereto shall be as valid as if it had been properly stamped in the first instance. [Emphasis added]
18. Another statute that can provide useful guidelines in answering the above question in the Code of Civil Procedure, 1908 (hereinafter referred as the C.P.C.). Section 149 of the C.P.C. Confers on a Court the discretion to allow payment of court-fee which was payable and was not paid. It is significant to note that such power can be exercised at any stage of the case. Likewise Order VII rule 11, C.P.C. Empowers a Court to reject the plaint where "the plaint is written on paper insufficiently stamped and on being required by the Court to supply the requisite stamp after within the time to be fixed b the Court, fails to do so". [Emphasis added]
19. The policy of law, in matters relating to payments required to be made by a litigant by way of fee, fine or other deposits appears to point towards flexibility rather than rigidity. Substance rather than form is the underlying principle. This is an area of the law where the litigant is, in most instances, given leeway and shown flexibility to enable him to meet technical requirements, which have inadvertently, in ignorance or because of misconception or misinterpretation of the relevant provision of the law remained unattended.
20. It was held in Akbar Ali and 4 others v. Province of Punjab 1989 SCMR 1040 that "it is for the functionaries of the Court to scrutinize the memorandum to ascertain whether it is properly stamped and also for the counsel to inform the appellant of the same. As a consequence when a plaint deficiently stamped is presented within limitation, it cannot be dismissed on the ground that it is deficiently stamped. Reliance can also be placed on Siddiq Khan and 2 others v. Abdul Shakar Khan and other PLD 1984 SC 289, Shahena Khan v. Aulia Khan and others PLD 1984 SC 157.
21. A combined reading of various statutes dealing with payment of court-fees etc. Including sections 12 and 28 of the Court Fees Act, 1870 and section 11 of the Suits Valuation Act, 1887 points to the conclusion that deficiency in court-fee can be ordered to be made good subsequently, Muhammad Saleem v. Inayat Ullah PLD 1983 Lahore 215. Likewise, the provisions of order VII Rule 11 and section 149, C.P.C. Read together lead to the conclusion that where court-fee affixed is found to be deficient, the Court cannot dismiss the suit or appeal without specifying the deficiency and fixing a date for payment. On compliance it has the same force and effect as if the fee had been paid in the first instance. Mst. Parveen v. Mst. Jamsheda Begum PLD 1983 NC 227, Hafiz Hassan Muhammad and others v. Abdul Hameed and 2 others PLD 1982 SC 159, Wilayat Khatak v. Khalil Ahmad Khan and another PLD 1979 SC 821.
22. It has been held that on discovery of deficiency or on it being pointed out the Court is bound to ascertain the deficiency in court-fee and then give time to make up such deficiency. Sardar Muhammad Karm Ziaudin Durrani and others v. Sardar Muhammad Asim Fakhruddin Durrani and others 2001 SCMR 148, Ch. Nazir Ahmad v. Abdul Karim and another PLD 1990 SC 42. The policy of law is not to penalize a litigant on account of deficiency of fees. Siddique Khan and 2 others v.
Abdul Shakir Khan and another PLD 1984 SC 289. Court Fees Act is not meant to arm a litigant with a weapon of technicality against his opponent, but to secure revenue for the State. Messer Muhammad Siddiq Muhammad Umar v. Australasia Bank PLD 1966 SC 684. Rejection of plaint can take place only if after the Court allows time for supplying the requisite court-fee, the plaintiff fails to do so. A plaint can be rejected after the Court has determined the exact amount payable and has given an opportunity to the plaintiff to make good the deficiency and he fails to do so within the time fixed by the Court. Deficiency can also be made good under section 151, C.P.C. Faqir Muhammad and 8 others v. Noor Muhammad 1970 SCMR 188. When the plaint is presented within limitation, it cannot be said to be time-barred merely on account of its being deficiently stamped for in such case provisions of Order VII, rule 11, section 149 and section 148, C.P.C. And those of section 10 of the Court Fees Act are attracted and the suit cannot be said not to have been validly instituted. Mst. Parveen v. Mst. Jamsheda Begum PLD 1983 SC 227, Siddique Khan and 2 others v.
Abdul Shakir Khan and others PLD 1984 SC 289. A conditional order or decree can also be made to the effect that failure to supply proper fee within a time allowed shall result in dismissal of the suit or rejection of the plaint.
23. In view of what has been discussed, the answer to the above question is that if a petition comes before a Rent Tribunal, which does not comply with the requirement of section 9(a) or (b) of the Act, the Rent Tribunal cannot consider, proceed or adjudicate upon it on merits. However, the Rent Tribunal should either on its motion or at the instance of either party allow reasonable time to the defaulting party to deposit the entire amount of fine or if any amount less than what is due has been deposited, to make up the deficiency within a time specified by the Tribunal. If the amount so directed to be deposited is not deposited within the time specified or such extended time, as may have been allowed by it, the Tribunal may proceed to dismiss the petition.
24. In the present case the ejectment petition was filed on 12-6-2009. At the time of filing of the petition, the respondent did not deposit any fine as envisaged by section 9(b) of the Act. The petitioner moved an application for dismissal of the ejectment petition on the ground of non- compliance of the provisions of section 9(b) ibid. The respondent moved an application for permission to deposit the requisite PLD fine. Vide order dated 8-10-2009, the learned subordinate Court dismissed the application of the petitioners. The application of the respondent for permission to deposit the fine was allowed with a direction to deposit the fine equivalent to 10% of the annual rent of the premises in the Government Treasury within a period of 5 days failing which his ejectment petition would be deemed to have been dismissed.
25. The impugned order specifies the amount required to be deposited as fine, identifies where it is to be deposited, gives a time frame for such deposit and spells out the consequences of failure to deposit. The order is in line with the interpretation, meaning and scope of section 9 discussed above. The impugned order is, therefore, found to be correct and unexceptional and interference in the same is declined.
26. The learned counsel for the petitioner has pointed out that the amount deposited by the respondent is deficient insofar as a sum of Rs,12,000 has been deposited as against a sum of Rs,15,000 which accordingly to him is equivalent to 10% of the annual rent of the rented premises. As discussed above the Rent Tribunal has all the requisite powers to pass appropriate orders in case the amount of fine is not paid or if paid is deficient. Both situation can be addressed by giving notice granting reasonable time to the defaulting party.
27. For the reasons given above, I hold that there is no legal or jurisdictional defect in the impugned order. The learned lower Court has applied its mind to the facts and circumstances of the case and correctly applied the law. The order is neither perverse nor does it suffer from any illegality or material irregularity. I do not find any force in this petition. It is accordingly dismissed.