' SALAHUDD1N PANHWAR, J---The petitioner seeks issuance of writ of certiorari against the order dated 14th April, 2012, passed by the court of 1st Additional District Judge (Hudood), Sukkur, whereby, Appeal No,29 of 2012, filed by the petitioner and respondent No,11 was dismissed and the order of the 1st Rent Controller Sukkur was maintained.
2. The facts, giving rise to the instant petition, in brief, are that respondents Nos. 1 to 10 filed Rent Application No,6 of 2011, against the petitioner and respondent No,11, on the ground of personal bona fide need and default in respect of the shop under tenancy of petitioner. The petitioner contested the rent application; filed affidavits in evidence. The respondents Nos. 1 to 10 and petitioner led their respective evidence, after conclusion of proceedings, the learned 1st Rent Controller by order dated 12-10-2011, allowed the ejectment application, with direction to the petitioner and respondent No,11 to hand over the peaceful possession of premises, in question to respondents Nos.1 to 10 with arrears from the month of January, 2010 at the rate of Rs,9000 per month.
3. The petitioner preferred the First Rent Appeal, being F.R.A. No,29 of 2011, which was admitted for hearing subject to legal objections. The respondents Nos.1 to 10 caused their appearance and matter was argued where it was pointed out by the opponents counsel that court fee stamps of requisite amount of Rs,15 are not affixed on the memo of the appeal, whereas, the counsel for the petitioner, showed his readiness to pay up the requisite court fee stamps of Rs,15 while.
Acknowledging that court fee of Rs,15 was not affixed on memo of appeal. The learned Additional District Judge, Sukkur dismissed the appeal of the petitioner vide order dated 14th April, 2012, solely on count that requisite court fee stamps of Rs,15 were not affixed on memo of appeal and even if the same are allowed to be paid then the appeal would be time barred.
4. Mr. Sarfraz. A. Akhund, learned counsel for petitioner, has inter alia contended that order of the learned appellate court is illegal and unwarranted as the appeal cannot be dismissed on account of deficiency of court fee stamps without giving an opportunity to pay up the same; appeal has not been decided on merits which is against the fundamental rights of the petitioner and having argued so, he prayed that the petition of the petitioner may be allowed. In support of what he argued he placed reliance on, Rashid Ahmad and another v. Khurshid Ahmad Khawar and another (1985 CLC 274), Muhammad Shafi v. Rehmat Ali (1985 CLC 432) and Muhammad Fiaz and another v Ch.Yaqoob Hussain and another (PLD 2010 Lahore 197).
5. Conversely, Mr. Abdul Naeem, Counsel for respondents Nos.1 to 10, has argued that Sindh Rented Premises Ordinance, 1979, is a special enactment hence will prevail upon general law; section 20 of the Ordinance gives procedure; and appeal has been dismissed according to procedure; no condonation has been sought and even no application has been submitted; oral submission at the time of arguments cannot be considered hence the appeal of the petitioner was rightly dismissed.
He relied upon Messrs Muqtada Khan Iqtida Khan v. Allah Rakhi Begum (1981 CLC 568), Syed Muhammad v. Mazhar AIi Khan (PLD 1981 Karachi 76), Khadim Hussain Agha v. Muhammad Ashraf (1980 CLC 621) and unreported order of this court dated 8-2-1987 passed in F.R.A. No,65 of 1985.
6. The issue, involved, in the petition in hand, gives rise to the proposition that:- Whether non-affixing of payment of court fee stamps on memorandum of first tent appeal should result in knocking out a litigant?"
Since there is no cavil that law relating to the rent, is special law, and Special law will prevail upon the general law. Being conscious of such legal position, I have meticulously examined the Sindh Rented Premises Ordinance, 1979 and West Pakistan Urban Rent Restriction Ordinance, 1959. From the perusal of the both Ordinance(s), relating with procedural and substantial provision(s), it is manifest that the procedure, provided for preferring appeal, has made it quite clear that it does not provide any penal condition/clause that in case of non-affixing of court fee stamps the appellant shall stand out of his right to prefer an appeal, B which is, otherwise a substantial right.
7. The scanning of the Court Fees Act, 1870, also shows that provision of Section-8, referred to in the case of Khadim Hussain Agha v. Muhammad.Ashraf reported in 1980 CLC (Lahore) page 621, reads as under:-- ' Section-8-Fee on memorandum of appeal against order relating to compensation. The amount of fee payable under this Act on a memorandum of appeal against an order relating to compensation under any Act for the time being in force for the acquisition of land for public purpose shall be computed according to the difference between the amount awarded and the amount claimed by the appellant.
' It seems to be revolving around the appeal against order relating to compensation and since all, order (s) of the Rent Controller does not, necessarily, relate to compensation hence this provision also seems to be not applicable in matter (s) of filing appeal against all order (s) of Rent Controller.
8. I feel it proper to endorse here the provision of Article-18 of the (Second Schedule---Sindh,) the Court Fees Act (VII of 1870), which reads as under:-- "For determination of fair rent or eviction of a tenant under sections 4 and 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959:-
(i) Where the property involved is exempted from Property Tax under the Sindh Urban Immovable Property Tax Act, 1958; ' Rs,15
(ii) Where such property is assessed, of Urban, Immovable Property, Tax".
' Plain reading of above section, reveals that it relates to the Rent applications and not with filing of the appeal and had there been any intention of legislature to make the affixing of court fee stamps of Rs,15 on memorandum of rent appeal there must have been such insertion in the Court Fees Act with reference to Rent appeal(s), being preferred under Sindh Rented Premises Ordinance, 1959 which, by its repealing clause has repealed earlier enactments.
9. Without, prejudice to above, now I would like to distinguish the issue, involved, from another aspect that the court fee act does provide payment of court fee stamps on memo of appeal(s), being filed against certain decree(s) of Civil Court but even in such like case(s), the law requires that appellant should be given an opportunity to pay up the court C fee stamps and his right of appeal should not be taken away straightaway. The position, being so, makes it clear that even if it is believed that the court fee stamps of Rs,15 should be affixed, yet the principle of natural justice needs to be given preference, which requires that one should be put on notice of penal action likely to be taken against him more particularly when such action will take away a substantial right of appellant to file the appeal. I also find the situation a little different in matters of appeal from that of petition (rent application), because technical dismissal/rejection of rent application will not bar the right of party to re-submit the same but situation in matter(s) of appeal is different because technical dismissal of appeal will, in all senses, take away the right of appeal of the appellant, and in such eventuality resubmission of appeal will deprive the valuable legal right of party due to limitation. This legal position and principle of natural justice make me to say that it would not be legally justified to knock out appellant merely on non-affixing of court fee stamp for which he has never been asked. The instant case of the petitioner is on better stand because the office of the learned District Judge and even the appellate authority did not ask the F petitioner to affix court fee stamps of Rs,15 on memo of appeal at time of its presentation but admittedly the appeal of the petitioner was presented in time and was admitted subject to legal exception. Thus, how this can be presumed that had the appellant been asked to pay court fee of Rs,15 at time of presentation of memo of appeal he would have refused or failed. The rule of interpretation is always that benefit is always to be drawn in favour of those who are likely to suffer. The G unreported case, referred by learned counsel for the respondents, is not applicable because in that case there was an office objection, which was raised on the date of its presentation, while in the instant case the situation is entirely Afferent, moreover, it has time and again been held by the superior courts that list should not be knocked out on technical grounds but the endeavors of the courts should be to H decide the matters, involving valuable right of the parties on merits and the parties to the litigation should not non-suited on mere technical grounds.
10. Having, thus, examined, the impugned order of the learned appellate judge, shows that the learned appellate judge took the view that readiness of the appellant to pay the court fee of Rs,15 at time of arguments would make the appeal of the petitioner time barred. I do not find any substance with such view of the learned appellate judge because the provision of the Section 21 of the Sindh Rented Premises Ordinance, 1979 specifically provides that any aggrieved party from the order of Rent Controller, not being an interim one, may prefer an appeal. The ordinary meaning of the word 'prefer' is to put forward or present for consideration and it is a matter of record that the petitioner did prefer his appeal before the ,District Judge (appellate authority within meaning of section 21), within specified time of thirty days. Since the petitioner, at all times, was harboring a bona fide impression that there was no requirement of law to affix court fee stamps of Rs, 15 on memo of appeal as his appeal was admitted, without such objection and the moment he K was made aware of such requirement he showed his readiness. Hence the appellate court was under legal obligation to at least provide an opportunity to the appellant calling upon him to pay the court fee and if even then the appellant failed to comply with the terms of order, whereof, appellate court would have been justified in taking this stern action.
11. What has been discussed above made me to answer the proposition in negation. The position, being so, has made it clear that the petitioner has been deprived of his legitimate right to have decision on merits, no fault was on his part more particularly when the office and the learned appellate court themselves allowed the petitioner to hold a bona fide belief that his appeal is admitted without any specific objections, therefore; it would be in all fairness to set aside the impugned judgment, and remand the case to learned appellate court to decide the appeal of the petitioner on merits, the appellant shall pay the requisite court fee stamps within a week from the date of receipt of this order be the lower appellate court. However, since I am quite conscious that matter(s) between Landlord and tenant should be decided as early as, possible, therefore, I hereby direct the learned appellate court to hear the arguments and record the judgment according to law within a period of 30 days. Parties are left to bear their own cost.