' Respondent No. 3, namely, Mst. Nasreen Kausar on 8.12.2001, instituted an application for ejectment against the petitioners, under Section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959. The petitioners contested the said application, denying the relationship of land-lord and tenant and on certain other grounds. However, the learned Rent Controller, after putting the parties to trial and recording their pro and contra evidence, allowed the application for ejectment vide order dated 17.7.2008. The petitioners preferred an appeal against the said order on 22.7.2008, in the Court of learned district Judge Sahiwal. During the pendency of the appeal, an application dated 31.10.2008, was submitted by the respondent-landlady, averring therein that the requisite Court-fee had not been affixed on the memo of appeal, hence, the same was liable to be dismissed and that even at that stage if the Court fee was affixed, the appeal having become barred by time merit dismissal, hence, no time could 'be granted to the appellants-petitioners to make up the deficiency in the Court-fee. The said application was also resisted by the present petitioners by maintaining that it being a rent appeal no Court-fee was leviable and that at the most a fixed Court-fee of Rs. 15/-was payable which the, petitioners-appellants were ready to affix as per order of the Court.
2. The learned Additional District Judge, sized of the matter, vide judgment dated 10-4-2009, accepted the said application and dismissed the appeal with the following observations:- "The impugned order of the Rent Controller/Tribunal shows that he ordered that the petitioner- landlady shall be entitle the ejectment of the respondents/appellants from the dispute house as well as for the arrears' at the rate of Rs. 4000/- per month for a period of six months before the filing of the ejectment petition till the eviction of the disputed house within two months, i.e. 60 days.
Under the law appellant has to affix the Court-fee on the amount at the rate of Rs.- 4000/- per month for the last one year but despite objection raised by the other side the appellant is not caring to make up the deficiency or to make request for extension of time for making good deficiency of the Court fee. It is swell settled that an appeal which is insufficiently stamped is no appeal in the eye of law and the Court has no jurisdiction to accept an improperly constituted appeal. Obviously, the appellant has refused to affix the Court fee. In these circumstances, the application filed by the landlady is accepted and the instant appeal is hereby dismissed due to non deposit of the Court fee."
3. It is in this background that the petitioners, through the instant petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, have called in question judgment dated 10-42009, passed by the learned ADJ, Sahiwal.
4. Learned counsel while relying upon the case titled "Atta Muhammad us. Abdul Aziz and others"
(1988 SCM R 759) has argued that the learned ADJ has illegally dismissed the appeal without affording an opportunity to the petitioners-appellants to make up the deficiency in the Court-fee after calculating the same and that at least one opportunity should have been given to them to make the deficiency, as such, the impugned judgment is violative of the law laid down by the apex Court, hence, liable to be set aside.
5. Conversely, the learned counsel for the Respondent No. 3 has argued that the conduct of the petitioners-appellants was contumacious, in that oh submission of application by the respondent- landlady for dismissal of the appeal on account of deficiency in the Court-fee, the petitioners- appellants contested the same by maintaining that no Court fee was required to be affixed on the memo of the appeal and that by that time even the appeal had become barred by limitation, hence, there was no occasion nor justification for the learned ADJ to provide an opportunity to the petitioners to make up the deficiency in the payment of Court-fee. He has relied upon the case titled "Assistant Commissioner and. Land Acquisition Collector, Badin vs. Haji Abdul Shakoor and others" (1997 SCM R 919).
6. I have heard the learned counsel for the parties and perused the case law cited at the bar.
7. In the precedent referred to and relied upon by the learned counsel for the Respondent No. 3 (1997 SCM R 919) the apex Court has ruled as under:-: "In the present case, the petitioner had filed first appeal against a money decree. There does not exist any doubt as to the question of payment of Court-fee, as it is to be paid ad valorem on the decretal amount. But the petitioner, in spite of the above clear legal position, opted to file the appeal with Rs. 10 Court-fee. Even after the objection was raised by Respondents Nos. 1 and 2, the petitioner in the above quoted Para 7 of the rejoinder, took the plea that no Court-fee was payable though after the expiry of more than one month, he paid the deficit Court-fee as a measure of abundant caution. In our view, the learned Judge in Chamber was justified in concluding that the petitioner was negligent and his conduct was contumacious and there existed no reason to show any indulgence to him to extend the time. We do not find any infirmity in the impugned judgment.
Leave is, accordingly, refused."
' Whereas, in the precedent relied upon by the learned counsel for the petitioner (1988 SCM R 759) it was observed as under:- "The fact remains that this appeal of the appellant which was filed before the District Judge in January, 1985 was entertained and proceedings were undertaken on it till 29.5.1986 when it came up for adjudication on exemption from Court-fee which was adjudicated upon and the exemption claimed from Court-fee was denied to the appellant. In such a situation not only the exact Court fee payable was required to be determined and the appellant informed but reasonable time should have been allowed to make it up. The language of the law indeed gives the impression that it is discretionary with the Presiding Officer or the Judge to allow such time or not. The entire philosophy of the Court Fees law has been examined by this Court in the case of Siddique and it is clear that the provisions are not to be used as penalty in the first instance but are directed to regulate the proceedings and not to thwart the adjudication or to non-suit a party on account of the'purely fiscal provision attached to the procedure."
' While going through the judgment rendered in the precedent (1997 SCM R 919) I have noticed that the apex Court has also referred to the case titled "Siddique Khan vs. Abdul Shakur Khan" (PLD 1984 SC 289) and reproduced therein the following paragraph of the said judgment:-- "The combined effect of the rule laid down by this Court in the case of Muhammad Nawaz Khan and Shah Nawaz would thus be that in cases of deficient Court-fee which would include in the context of now amended law, certain exemption in this behalf, the Court on discovery of an omission, error in valuation of deficiency in Court-fee, shall acting under Order VII, Rule 11.(b) and
(c) allow time to the plaintiff to make correction and supply the deficiency. If he does so then the plaint shall be deemed to have been validly filed on the date of the original presentation notwithstanding the fact that the Court fee was supplied after the expiry of the period of limitation.
If, however, the plaintiff is guilty of contumacy which terms would be separately explained hereinafter and/or commits positive act of mala fides the plaintiff could be held dis entitled to further exercise of discretion under Section 149 read with Section 148, CPC."
' In the said precedent (PLD 1984 SC 289), the apex Court has also clarified that the provisions of Order VII, Rule 11 (b) and (c) apply to plaints as also to memorandum of appeals. The relevant portion read as under:- "There is another aspect of the matter. The application of order VII, Rule 11 (b) (c) to appeals in one sense ,at least is salutary for the progress of the appeal, for hearing. If it is applied then as would be presently shown it might not be possible to - reject a memorandum of appeal on ground of deficiency of Court-fee unless in accordance therewith an opportunity is provided, to supply the required Court-fee. It is also conducive for a purpose amongst others, for which Order VII, Rule 11 (b) and (c) were enacted namely collection of State revenue in so far as appeal stage of the Court process is concerned..As would be presently shown, it is obligatory under Order VII, Rule 11 (c) to afford one opportunity to supply the deficiency in Court-fee, before rejection of the plaint under the said provision. If as is discussed ' above there are two interpretations of Section 107(2) (when read with Order VII, Rule 11 (c) and Order XLI, Rule 3) then the one favoring the saving of the appeal proceedings from rejection on ground connected with collection of public revenue by affording the said opportunity, would have to be adopted. Thus the age old conflict on this fiscal-cum- procedural question is resolved in favour of the subject (the appellants). The result is that Order VII, Rule 11 (b) and.(c) applies to plaints as also to memorandum of appeals."
8. Having respectfully gone through the above 'case law, it is observed that a distinction has been drawn that where the legal provision regarding levy of Court-fee is clear and the conduct of the party concerned is contumacious then it would not be entitled to exercise of a discretion in its favour under Section 149 read with A Section 148 and Order VII Rule 11(b)(c), CPC, but where the question of affixation of court fee is somewhat doubt full then the court should calculate the exact amount of court fee leviable on the plaint or memorandum of appeal and then to grant an opportunity to the party concerned to make up the deficiency
9. In the instant case, the appeal filed by the petitioners entertained by the office of the learned District Judge Sahiwal without any objection and the same remained pending for quite some time, whereafter an application for dismissal of the appeal was filed o the ground of deficiency of Court- fee. The said application was contested by he petitioners and it cannot be ruled out that the contested the same under bona fide mistaken belief that no Court-fee was liable to be affixed on the memo of appeal, hence, when the learned first appellate Court came to the conclusion that a certain ,amount of Court-fee was leviable then it should have afforded at least one opportunity to the petitioners to affix the Court-fee on the memo of appeal, and in the event of failure to do so the appeal could have been dismissed on that account, but straightaway dismissal of appeal appears to be a harsh treatment.
10. More so, in view of the fact that formula for levy of Court-fee in the rent matters is quite different from other appeals arising out of money decrees. In cases involving money disputes- it is commonly known that the ad-velorem Court-fee is payable according to the value of the suit or in case of appeal according to the decretal amount as the case may be if it exceeds Rs. 25,000/-, at the rate of 7.5 per cent but the formula for affixation of Court fee on rent appeals is somewhat different and one can also be mislead by the fact that an ejectment petition requires affixation of a fixed Court fee of Rs. 15/-, whereas, the appeal against the order passed by the Rent Controller requires affixation of Court-fee on the basis of annual rental value of the demised premises.
11. In the light.Of the above, discussion and while respectfully relying upon the case law referred to by the learned counsel for both the parties, it is observed that the learned ADJ was not within his right to straightaway dismiss the appeal without first affording an opportunity to the petitioners- appellants to make up the deficiency in the Court-fee by affixing the same on the memo of appeal.
It is also observed that no contumacy or stubborn attitude has been noticed on the part of the petitioners, who appear to have claimed under a bonafide mistake that no Court-fee was leviable.
12. Resultantly, this petition succeeds and the same is allowed. The impugned judgment is, therefore, set aside by holding the same to have been passed without any lawful authority.
Consequently, the appeal of the petitioners shall be deemed to be pending before the learned ADJ Sahiwal, who shall afford an opportunity to the petitioners to affix the requisite Court-fee on the memo of appeal and then shall decide the same on merits after hearing both the parties.
13. .