1. ' Constitution petition arises out of rent matter. Relevant facts are: Mst. Adeeba Khanum in an ejectment petition presented before the Rent Controller applied for eviction of Sh. Muhammad Islam, a tenant-in occupation of Shop No. IV-8-R-30, situated in Gandam Mandi, Kasur on the grounds: (i) default in payment of rent, (ii) bona fide personal requirement, (iii) damage to the property and (iv) violation of the terms of the tenancy. The tenant, when appeared, filed written statement and disputed the averments made against him. Rent Controller framed following issues:-
(1) Whether the respondent has committed a wilful default in the payment of monthly rent as alleged in the application? O.P.A.
(2) Whether the applicant requires the shop in dispute reasonably and in good faith for the use and occupation of her son? O.P.A.
(3) Whether the respondent has damaged the shop in dispute and has impaired its value and utility? 0.P.A.
(4) Whether the respondent has violated the conditions of tenancy and is an undesirable tenant, if so, with what effect? O.P.A.
(5) Whether the respondent has spent any money on the necessary repairs of shop with the prior permission of the applicant, if so, what amount has been spent by him and if so with what effect?
2. O.P.A.
(6) Relief.
3. ' Parties produced evidence in support of the above-noted issues. Rent Controller, Kasur, vide order dated 22-1-1981 found default and personal need established and consequently ordered eviction of the tenant. So the matter was agitated in appeal. Mr. Javed lqbal Siddiqui, learned Additional District Judge, Kasur, vide order dated 20-3-1984, dismissed the appeal on two grounds: (i) the appeal was deficiently stamped. and (ii) it was barred by 22 days. Merits were not gone into.
4. Tenant invoked the constitutional jurisdiction of this Court.
5. ' The case was taken up at about 9..30 a.m. Mr. Maqbool Ilahi Malik, learned counsel appeared in support of the writ petition. None appeared on behalf of the respondents, therefore, the petition has been heard ex parte. Learned counsel for the writ petitioner has contended that the appeal could not be dismissed on the ground of any deficiency in court-fee. Learned counsel contended that in case of any deficiency in court-fee the Court of appeal was obligated to provide a chance to the appellant to make good the deficiency within a time fixed by it. Relied on Siddique Khan and others v. Abdul Shakur Khan and another PLD 1984 SC 289. Learned counsel further contended that the appeal was not barred by time. Ejectment order was passed on 22-1-1981. Copy was applied for on 24-1-1981. It was prepared on 16-2-1981 and its delivery was received on 5-4-1981. Learned counsel relying on section 12(2) of the Limitation Act, 1908, contended that since the copying agency had not given any specific date about preparation and the delivery of the copy to the applicant, the appellant was entitled to deduct the period falling between 24-1-1981 and 5-4-1981. This was a "time requisite" to be excluded from the period of limitation prescribed for presentation of the appeal before the District Judge under section 15 of the Rent Ordinance. Learned counsel submitted that the order passed by the learned Additional District Judge dismissing the appeal on ground of limitation and deficiency in court-fee proceeded contrary to the statutory provisions of law and the pronouncement of the superior Courts. As regards limitation, learned counsel placed reliance on Muhammad Afzal Khan Lodhi v. Islamic Republic of Pakistan PLD 1968 Lah. 1205, and contended that the period from 24-1-1981 to 5-4-1981 was a "time requisite" and the appellant was entitled to take full benefit of the time consumed by the copying agency from 16-2-1981 to 5-4-1981.
6. If the copying agency had given no date, despite the vigilance of the appellant, he should not be made to suffer. As stated, the appeal was dismissed on these two grounds only, bar of limitation and deficiency in court-fee.
7. ' I have examined the record. The appeal was presented on 5-4-1981, the day copy was delivered.
8. Learned District Judge, Kasur on 5-4-1981 passed the following order:- "This appeal may be presented before learned District Judge, Kasur on 31-5-1981. Meanwhile status quo be maintained. Notice to the respondent and record to be summoned for the date fixed.
9. ' Thereafter, the appeal was adjourned to several dates without any substantial progress. On 10-10- 1982 learned District Judge Kasur made the following order:- "Present: Counsel for the parties. The case of the respondent is that the appeal is barred by time.
10. However, as it is not clear from the record present in this Court, both the learned counsel request that the record of the copying agency, Kasur be summoned before 20-10-1982 and this appeal shall come up on that date for preliminary hearing. This particular, date has been given at the request of the learned counsel for the parties.
11. Announced Sd/-D.J. Kasur.
12. 10-10-1984"
13. ' On 29-11-1984, the Presiding Officer was not in chair and the case was adjourned to 17-1-1983 by the Reader of the Court. However, the record requisitioned earlier was available on this date. On 17- 1-1983, the case was adjourned for preliminary hearing to 23-2-1983. On 23-2-1983, the appeal was not heard on merits but instead was entrusted to learned Additional District Judge, Kasur for disposal in accordance with law. Consequently, the appeal was placed before the Additional District Judge, Kasur who vide order dated 20-3-1984 dismissed the same without looking into the records of the copying agency as to the date of preparation and delivery of the copy and that whether it 'had given any specific time and date to the appellant to collect the copy from the branch. He relied simply on the endorsement of the copying agency present on the certified copy of the order, part of the record of the court of appeal. This to my mind was not proper disposal of the question of limitation raised before the learned Additional District Judge. Earlier, to resolve the controversy, as to the bar of limitation, learned District Judge in his order dated 10-10-1982 had requisitioned the record from the copying agency. This shows that without the presence of the record, it was felt by the learned District Judge that the controversy could not be properly and satisfactorily resolved. In presence of this order, the learned Additional District Judge in all propriety should have examined the record and then decided whether the appeal presented before the Court was barred by time as stated by him in his order dated 20-3-1984. Contention before him was that the appeal was not burred as the copying agency had not given any specific time/date for the delivery of the copy. In the absence of such date/time given by the copying agency, the appellant could only visit the copying agency and asked for its delivery. This, he may be doing but then he cannot be made to suffer on account of any remissness on the part of the copying agency.
14. The point before the Additional District Judge, thus was whether the appellant before him was in any manner responsible for the time intervening between 16-2-1981 and 5-4-1981 when the copy was delivered to him and the appeal presented. This could only be resolved by examination of the record. No doubt the appeal was not accompanied by a petition under section 5 of the Limitation Act. The office had not raised any such objection in regard to bar of limitation. The appellant was relying on section 12(2) of the Limitation Act, 1908 and in his estimation the appeal was within time, if the time requisite for obtaining the copy as calculated by him from the date of making the application, to the date when its delivery to him was made, was excluded. In case the copying agency does not give a specific date as to when the copy would be ready, the time falling between the date of application and when it is delivered, shall be deemed to be a "time requisite" for obtaining the copy under section 12(2) of the Limitation Act. Of course meanwhile, the appellant has to show vigilance. In Gul Muhammad v. Allah Ditta PLD 1960 (W.P.) Lah. 443 the Court observed:- "Whether the copying department is an official agency charged with the duty of making and delivering copies, the argument that it is an agent of the applicant and that, consequently, any delay on its part should be treated as a delay by the applicant, was rejected by a Single Judge in Labhu Ram v. Bansi Dhar and again by a Full Bench in Kishore Chand v. Bahadur and we are respectfully of the same opinion. The time "requisite" for obtaining copies which can be excluded under section 12, Limitation Act, is the time which is taken between the date of application and the date When the copies are ready, but it can be further extended if further delay takes place by reason of the carelessness of the office in giving wrong information to the applicant as to the date on which the copies would be ready or in giving no information at all. See Fouda Uraon v. Ganpat Ram. In Sheogobin v. Ablakhi, Mahmood J. included within the "time requisite" even the days which the applicant allowed to pass between the date when the estimate of costs was delivered to him and the date on which stamp was put in by him--eight days--on the ground that "the word requisite, makes it possible to require its meaning to be such that he should not lose the right of appeal either by reason of neglect of the officials who issue copies or those who are required to give notice when such copies are ready". Unless on facts we could hold that the applicant required eight days for this purpose, we may not be prepared to go so far with Mahmood, J. , but we respectfully agree that whatever period is necessary for the doing of a thing of that kind will be included in the time requisite for obtaining a copy".
15. ' In Muhammad Afzal Khan Lodhi v. Islamic Republic of Pakistan, section 12(2) of the Limitation Act fell for consideration before the learned Single Judge of this Court late Mr. K.E. Chauhan, J., as his Lordship then was. Honourable Judge observed:- "The passages reproduced above and the authorities goofed therein (which I have no hesitation in following) will clearly' _ show that when no intimation is given by the copying agency ofhe date when the copy might be ready, it is the date of the delivery up to which the time can be considered as time requisite in obtaining the said copy. Applying this principle to the facts and circumstances of the present case, it must be held that the plaintiff was entitled to full allowance of time uptil the date when the copy was delivered to him, namely, 29th of Apra, 1958 and the learned District Judge was not justified in disallowing such time."
16. ' However, their Lordships of the Supreme Court in Fateh Muhammad and others v. Malik Qadir Bakhsh 1975 SCMR 157, speaking, on section 12(2) of the Limitation Act, observed:- "It is well-settled that the time requisite for obtaining copy of the order within the meaning of section 12 of the Limitation Act, 1908 means only the interval between the date of application for supply of copy and the date when it is ready for delivery. Even during this interval due diligence on the part of the litigant is required by law, and no delay unless such as was caused by the circumstances over which he had no control and which could not by due diligence be avoided, can form part of time "requisite" for obtaining the copy. The time between the date on which the copy is ready for delivery and the date on _which the applicant chooses to take delivery thereof is not a portion of the time "requisite" for obtaining a copy. The question then is whether the delay be condoned under the provisions of section 5 of the Limitation Act, 1908. In this behalf, it would be seen that the order of the High Court having been announced on 8th October, 1973, petitioners had 60 days to file this petition, excluding the time requisite for obtaining copy of the order. They are presumed to know that delay of each day after expiry of the prescribed period of limitation, unless satisfactorily explained, is fatal."
17. ' Their Lordships then discussed the question whether delay in the circumstances of the case before them could be condoned. In the case under consideration the only point which needed serious consideration in so far as the bar of limitation was concerned, was whether the copying agency had given any specific date/time to the applicant when the copy would be ready for delivery. This could be resolved with the help of record maintained by the copying agency. Learned District Judge, rightly, with the agreement of the two counsel, requisitioned the above said record.
18. This being the position, question of limitation could not have been properly and satisfactorily resolved in the absence of the record. Learned Additional District Judge, therefore, acted improperly and with material illegality in throwing out the appeal without examining the records of the copying agency and further without affording an opportunity to the appellant to explain their grievance as to the delay which occurred in late presentation of the appeal. In this view of the matter I do not feel persuaded to agree with the manner of disposal of the aforesaid rent appeal.
19. Similarly, the question of court-fee had also been dealt with in perfunctory manner. Rate of rent admittedly was Rs. 65 p.m. The appellant had calculated the monthly rent at Rs. 60 p.m. and, thus calculated, stamped the memorandum of appeal. Deficiency if any, was trivial and insignificant.
20. For this deficiency the appellant could not be denied hearing on merits. The vexed question of court-fee on which there had been a sharp cleavage of judicial opinion, has, at last, been set at rest by the august Supreme Court in Siddique Khan and others v. Abdul Shakoor Khan and another.
21. Appeal accordingly, in view of the law declared by the Supreme Court of Pakistan could not have been dismissed without first affording an opportunity to the appelant to make good the deficiency.
22. Question of court-fee was after all a fiscal matter, of concern only, between the State and the appellant and could not be allowed to be used successfully as a weapon by a party against his adversary so as to deprive him of a right of audience on merits before Court of appeal. If deficiency was detected, the same could be made good by the appellant in obedience to the direction of the Court. At no stage of proceedings, the attention of the appellant had been invited to the above- said deficiency in court-fee. In this view of the matter, I find that the order of learned Additional District Judge suffered from a serious defect of jurisdiction. Upon the view that I take, writ petition is allowed, order dated 20-3-1984 of learned Additional District Judge, Kasur is set aside and declared to have been passed without lawful authority. In the result Civil Appeal No. 215 of 1983 directed against the order of Rent Controller dated 22-1-1981 shall be deemed to be pending requiring decision afresh in the light of the observations made. Learned Additional District Judge is directed to redecide the question of limitation in the light of the records of the copying agency after affording an opportunity of hearing to the parties to substantiate their pleas in regard to the limitation. Question of court-fee will also be decided in the light of pronouncements of the Supreme Court in Siddique Khan and two others v. Abdul Shakoor Khan and another. Copy of the order and the records shall be transmitted to learned Additional District Judge without delay to enable him to decide the Rent appeal expeditiously. No order as to costs.