' SHAHID JAMIL KHAN, J.---Petitioner being tenant has challenged appellate order dated 12-6-2014 passed by Additional District Judge, Fateh Jang, accepting application for eviction by reversing findings/decision of Rent Tribunal.
2. Learned counsel for the petitioner submits that further appeal is not provided under section 28(8) of the Punjab Rented Premises Act, 2009 ("Act of 2009"), therefore, constitutional jurisdiction is invoked. Argues that impugned order is challenged on two grounds:--
(i) That court fee was not affixed with memorandum of appeal, hence the order of the Appellate Court is not enforceable; and
(ii) Besides misreading the available evidence, Appellate Court failed to decide issue No,3 regarding adjustment of certain amounts from the landlord, which per se is a jurisdictional defect apparent from record.
' Learned counsel has relied on Subedar (Retd.) Noor Abdullah v. Muhammad Nawaz (2003 MLD 376) to support his contention regarding deficient court fee.
3. Learned counsel for the respondent has supported the impugned order by Appellate Court and opposed the arguments. He submits that ground regarding court fee is neither taken in this petition nor was it urged before the Appellate Court. Explains that petitioner had not advanced any arguments on Issue No,3, therefore, it was not decided.
4. Heard, record perused.
5. Perusal of impugned order shows that Appellate Court reversed finding of Rent Tribunal after re- examining the evidence led by both the parties on Issues Nos. 1 and 2. The application for eviction filed by respondent No,1 was, consequently, accepted by allowing the appeal. Issue No,2, relating to maintainability of application for eviction, was taken up first. The petitioner (appearing as RW-1) admitted that he was tenant of Muhammad Basharat i,e,, late husband of respondent No, 1 .
Change of ownership was duly notified, therefore, Issue No,2 was decided against the petitioner (respondent) by reversing the findings of Rent Tribunal.
' Issue No,1 was regarding entitlement to eviction on the ground, inter alia, that change was brought in rented premises without permission of the landlord. Decision on Issue No,1 was reversed on the facts that change in the nature of rented premises was admitted by the petitioner (respondent) which was repugnant to the basic terms of the rent agreement (Exh.A.3) and that he failed to prove that the alteration was made with permission/authority. It was also one of the conditions in rent agreement that respondent would vacate the premises, subject to three months' notice in advance, if required by the landlord for personal use. The notices were found to have been sent and served on the petitioner (respondent).
' No misreading, non-reading or misconception of the evidence is evident from the impugned order. Findings of the Appellate Court are A found cogent and well-reasoned.
6. So far objection of the petitioner regarding decision of Issue No,3 is concerned, learned Appellate Court have specifically noted in its order that petitioner (respondent) had abandoned arguments on Issue No,3, therefore, it was no more controversial. The petitioner, therefore, is estopped to raise it as a ground in this petition.
7. Adverting to ground of deficient court fee, the judgment in Subedar (Retd.) Noor Abdullah's Case (supra), is examined. It is based on repealed West Pakistan Urban Rent Restriction Ordinance, 1959.
Relying upon an earlier judgment by this Court in case Habib Ismail Bajwa v. Khawaja Ghulam Mohy-ud-Din (PLD 1970 Lahore 428) it was urged that no court fee was affixed on the memorandum of appeal before first appellate Court. Final order by Rent Controller was held to have force of decree, therefore, ad valorem court fee was leviable under Article 1 of Schedule Ito the Court Fee Act, 1870 ("Act of 1870"). By invoking provisions of section 28 of the Act of 1870, the defect of deficient court fee was ordered to be rectified by affixing/depositing ad valorem court fee before the first Appellate Court.
8. The apex Court in case Ata Muhammad v. Abdul Aziz and others (1988 SCMR 759) has dealt with similar legal proposition. An appeal was filed by tenant before Additional District Judge against an ejectment order. The under stamped appeal was dismissed being incompetent and Constitutional Petition against this order was also dismissed. High Court's order was challenged in the case ibid, relying upon Siddique Khan v. Abdul Shakur Khan (PLD 1984 SC 289), wherein it was held that the deficiency has not only to be determined as a fact but clso time has to be allowed for making up the deficiency and it is only when such deficiency is not made up penal consequence of not entertaining the appeal could follow.
' Hon'ble Supreme Court of Pakistan deprecated both the orders and held that Constitutional Petition was competent and that the appellate court should have allowed time to make up the deficiency in court fee after determining the same. Provisions of section 28 of the Act of 1870 were reproduced and philosophy of court fee was discussed, relevant part of Ata Muhammad case (supra) is reproduced for ready reference:- "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."
' 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 Khan 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.
' Apart from section 28 of the Court Fees Act, the enabling provisions of the Civil Procedure Code are certainly attracted to the hearing of appeal by the District Judge in the matter of addition of parties, their substitution etc. And the law with regard to the making up the deficiency in the court- fee will also be attracted to the proceedings before the District Judge because no specific provision has otherwise been made therefor. If the act of the Additional District Judge was without jurisdiction in the light of the law laid down by this Court, there is no question of denying the appellant the relief in the constitutional jurisdiction as he has a tangible and material interest in the proceedings.
'The judgments discussed above show that District Judge should have provided an opportunity for making up the deficiency after determining the Court fee leviable. Penal action of returning or dismissing appeal was held to be a jurisdictional defect, therefore, Constitutional jurisdiction could be invoked.
9. Now the question arises whether an order by Rent Tribunal, under Punjab Rented Premises Act, 2009, on an application for eviction has force of decree and court fee was leviable on the memorandum of appeal?
' Provisions of the Act of 2009 are examined; under section 26, the Rent Tribunal exercises powers of a Civil Court for the purpose enumerated therein; under section 31, while executing the order of Rent Tribunal or Appellate Court, the final order passed under section 27 is required to be treated as decree of Civil Court; and the Rent Tribunal being executing court is given all the powers of a Civil Court. Necessary corollary is that an order passed by Rent Tribunal under the Act of 2009, has force of decree therefore, ad valorem court fee was leviable under Article 1 of Schedule I to the Court Fee Act, 1870 on memorandum of appeal.
' Since, learned counsel for respondent No,1 has not denied the fact of deficient court fee, therefore, Appellate Court is directed to determine the leviable court fee and respondent No,1 is directed to affix/deposit it before the Appellate Court. Order accordingly.
10. The petition on grounds is dismissed. The impugned judgment by Appellate Court is upheld, which shall be executable, on deposit/ affixation of leviable court fee, as ordered.