' MIAN NAZIR AKHTAR, J.--Through this Constitutional petition the petitioner has assailed the order dated 4-4-1990 passed by the learned Addl. District Judge, dismissing the petitioner's appeal as being deficiently stamped.
2. Brief facts of the case are that respondents Nos.5 to 11 filed an application for ejectment of the petitioner from property No,20-D, 6th Road, Satellite Town, Rawalpindi which was held by the petitioner as a tenant. The petitioner claimed that the monthly rent of the property was Rs,7,500 whereas the respondents/landlords claimed that it was Rs,15,000. The learned Rent Controller fixed the tentative rent at the rate of Rs,15,000 per month and directed the petitioner to deposit arrears of rent as well as the future rent at the above rate. The petitioner failed to comply with the said order, whereupon the landlords filed an application dated 21-9-1989 for striking out the petitioner's defence and ordering his ejectment. This application was allowed by the learned Rent Controller vide his order dated 6-12-1989.
3. The petitioner challenged the order dated 6-12-1989 by means of an appeal before the learned District Judge. He affixed court-fee stamp worth Rs,15 only on the memo of appeal. The landlords raised an objection to the deficiency of court-fee on 8-2-1990 and prayed for dismissal of the appeal. The Court heard arguments on this point on 19-2-1990 and fixed the case for orders on 20- 2-1990. The order could not be announced on the said date and even on the two subsequent dates when the presiding officer was transferred. Thereafter arguments were again heard on the preliminary objection on 19-3-1990 and 26-3-1990 and the impugned order was announced on 4- 4-1990 dismissing the appeal for deficiency of court-fee.
4. Placing reliance on the case of Siddique Khan and 2 others v. Abdul Shakoor Khan and another (PLD 1984 SC 289), the learned counsel contended that at least one opportunity must have been given to the petitioner to make good the deficiency of the court-fee. He urged that the petitioner's conduct was not contumacious or negligent. He had raised a serious dispute about the rate of rent and was willing to pay the balance court-fee after determination of the controversy by the appellate Court. He submitted that the Courts should not non-suit the petitioner for technicalities alone and should decide the matter on merits. He placed reliance on the following judgments:
(i) Hakim Shahab-ud-Din v. Abdul Majid and others 1985 CLC 2495;
(ii) Sikandar Din v. Addl. Commissioner (Revenue), Rawalpindi Division, Rawalpindi 1987 CLC 2428 Mukhi Chatromal and another v. Khubchand and 6 others 1988 CLC 1711;
(iv) Mahmood Ahmad etc. v. Mr. S.M. Ishfaq Ali, Claims Commissioner, etc. PLD 1974 Note 32 at p.
69.
(v) Mian Bashir Muhammad v. Ch. Abdul Rahman Gill and 7 others PLD 1987 Lah. 145 and
(iv) Allah Bakhsh v. Muhammad Sharif and others 1989 SCMR 1791.
' He also relied on the provisions of section 10 of the Court Fees Act and urged that the petitioner should have been given an opportunity to make good the deficiency of the court-fee. On the other hand the learned counsel for the respondents Nos.5 to 11 urged that the petitioner's conduct was contumacious because he did not pay the court-fee even on the rate of rent which was claimed by him to be the agreed rate of rent between the parties. He submitted that calculating at the rate of Rs,7,500 per month the annual rental value of the property came to be Rs,90,000. He ought to have affixed court-fee of Rs,2,302.87. Hence, the petitioner, who deliberately paid court-fee of Rs,15, was clearly negligent and deserved no indulgence. He also urged that the dispute of rate of rent, if decided in favour of the landlord, would have entailed payment of more court-fee calculated at the rate of Rs,15,000 per month but in no case it could have been less than Rs,2,302.87 because the petitioner had himself asserted that the rate of rent was Rs,7,500. He placed reliance on the cases of Lal Shah v. Muhammad Ishaq PLD 1977 Lahore 1058, Sher Muhammad Shah v.. Malik Abdul Aziz NLR 1980 Civil Lahore 160 and Nawab Din v. Basharat Ali 1986 MLD 692.
5. Under the law, a plaint or a memorandum of appeal cannot be considered to be properly filed as long as it does not bear the requisite court-fee. Proceedings before a Rent Controller are initiated by presentation of an application and not a plaint. Hence, the provisions of Court Fees Act relating to plaints are not attracted to such applications. An appeal against the order of the Rent Controller having force of a decree is, however, governed by Schedule-I of Article 1 of the Court Fees Act and ad valorem court-fee is payable on the subject-matter of the dispute. The value of the subject- matter in rent appeals is worked out on the basis of annual rental value of the property. In the present case, the appellant had himself asserted before the Rent Controller in his written statement that the monthly rent of the property was Rs,7,500 although the landlord claimed it be to Rs,15,000.
Hence, the petitioner ought to have paid court-fee on the amount of Rs,90,000 which was the value of the subject-matter of the dispute according to the petitioner's own claim. According to the claim of the landlord, the value of the subject-matter was Rs,1,80,000. The petitioner opted to pay court- fee of Rs,15 only and did not make good the deficiency despite an objection raised by the respondents in that behalf. No application was made by the petitioner, at any stage, during the pendency of the appeal for permission to make good the deficiency of the court-fee. Instead, the petitioner hotly contested the landlords' objection to the deficiency of court-fee. It was not a case involving wrong estimation of net profits or market value resulting in insufficient or excess payment of court-fee. Hence, the provisions of section 10 of the Court Fees Act are not relevant. Similarly, there was no mistake or inadvertence in filing the appeal with insufficient court-fee so as to entitle the petitioner to exercise of discretion in his favour under section 28 of the Court Fees Act. It is a case in which the petitioner consciously and deliberately chose to pay a court-fee of Rs,15 on the memorandum of appeal, which, according to the First Part of section 28 of the Act, was of no validity. Even if it is found that the memorandum of appeal was received by the Court through mistake or inadvertence, it was entirely for the appellate Court to order that the appeal be stamped with the requisite court-fee. The use of the words "if he thinks fit" gives discretion to the Court in the matter. In the present case, the Court took into account all the relevant circumstances and did not think it to be a fit case for exercise of discretion in the matter of allowing an opportunity to the petitioner to make good the deficiency in the court-fee. The discretion does not appear to have been exercised in an arbitrary or capricious manner. Hence, no interference is called for in the exercise of Constitutional jurisdiction.
6. Coming to the judgments relied upon by the learned counsel for the petitioner, I find that none of the precedents is of any help to him. Siddique Khan's case relates to ordinary civil suits and appeals and not to the applications and appeals under the Punjab Rent Restriction Ordinance. The said case had arisen out of a pre-emption suit in which court-fee on the plaint was payable at fifteen times of the net profits and the same court-fee was payable on the memorandum of appeal. On an objection that the court-fee was deficient, the appellant, at first, contested it but then made an application under section 149 read with section 151 of the C.P.C. For permission to supply the deficient court-fee on obtaining the `fard pedawar'. However, the request was not allowed and the appeal dismissed as time-barred. In this context, the Hon'ble Supreme Court held that while exercising the discretion for grant of time for supply of deficiency in the court-fee, consideration relating to bar of limitation would not be taken into account and the Court after determining the deficiency should allow time to pay the deficient court-fee. If deficiency is not made good despite an opportunity having been given then the plaint or the memorandum of appeal may be rejected.
' However, it was also observed that the appeal could be dismissed if a party was found guilty of contumacy or positive mala fides in paying the deficient court-fee. Siddique Khan's case interprets the provisions of Order VII rule 11 read with section 149 of the C.P.C., which apply in the ordinary civil cases and not the rent matters. Moreover, rejection of plaint or memorandum of appeal on the ground of contumacy is also contemplated in this judgment. In the case in hand, the petitioner appears to have acted with negligence and contumacy. On the one hand despite alleging that the monthly rent of the property was Rs,7,500 he failed to pay the court-fee on the annual rental value of the property and on the other stubbornly insisted that the calculation and determination must be made by the Court and then he would pay it. Such a demand may be countenanced in a case in which there is some confusion, or ambiguity or difficulty in calculating the value of the subject- matter of dispute. In the present case, there was no such ambiguity, confusion or difficulty. Hence, the appellate Court was justified in not exercising the discretion in favour of the petitioner. The other cases relied upon by the learned counsel for the petitioner are also distinguishable on facts.
In Hakim Shahab-ud-Din's case, the appellate Authority, in a rent matter, had permitted the appellant to make up deficiency of court-fee. In the said case, the court-fee was not paid on a misconception that court-fee was exempt on all appeals upto the value of Rs,25,000. This legal controversy was raised in a number of cases and considering it to be a bona fide misconception, the Courts exercised discretion under section 28 of the Court Fees Act allowing the appellants to make up the deficiency of court-fee. In Sikandar Din's case, the matter pertained to a preemption suit in which plaints were rejected for deficiency of court-fee. The case was remanded by the High Court to the trial Court for ascertaining the amount of court-fee in accordance with the schedule of net profits already on its record, give the pre-emptor an opportunity to make up the deficiency-- within a time to be fixed by it and in case of non-compliance to allow the relevant provisions of law to take due course. Obviously, being a pre-emption matter, the provisions of section 10 of the Court Fees Act were also fully attracted, which provision of law has no bearing in the rent matters. In Mukhi Chatromal's case, the memorandum of appeal bearing court-fee of Rs,5 was filed in forma paupers. However, the application for permission to sue in forma pauperis was not pressed and instead an application under section 149 of the C.P.C. Was moved alongwith the court-fee stamp of Rs,15,000, seeking permission of the Court to pay the court-fee. The application was allowed and the order maintained by the High Court. In Mahmood Ahmad's case, a review petition was entertained by the Claims Commissioner without any objection as to the insufficiency of the court- fee. The objection was raised at the time of final arguments when the requisite court-fee of Rs,7.50 was paid by the petitioners. Hence, it was held that the review petition could not be thrown out as being insufficiently stamped. In the case of Mian Bashir Muhammad, the memorandum of appeal was deficiently stamped. The error had occurred due to the fact that in Para 1 of the ejectment petition, the rate of rent was mentioned as Rs,180 alongwith the figure Rs,200 which led to a mistake in calculation. The shortage was made good as soon as pointed out.
' Moreover, the objection on the ground of contumacy and negligence was not seriously pressed by the opposite-party. In Allah Bakhsh's case, the memorandum of appeal before the first appellate Court was deficiently stamped. The appeal was admitted without any objection as to deficiency of the court-fee and it was the appellant who himself pointed out through an application that he was misled in paying lesser court-fee by the decree-sheet and prayed for permission to make up the deficiency in court-fee. In these circumstances, the Hon'ble Supreme Court held that the Court was under a legal obligation to have allowed the appellant to make up the deficiency in the payment of the court-fee. In the present case, as held above, the petitioner had acted with gross negligence and his conduct reflected contumacy calling for no indulgence on the part of the Court. The impugned order cannot be termed to be either without jurisdiction or without lawful authority and of no legal effect. The Court below has not been shown to have exercised its -discretionary power in an arbitrary, capricious or injudicious manner.
7. Now, a reference may be made to the judgments cited by the learned counsel for the respondents. In Lal Shah's case, the deficiency of court-fee was not made good despite an office objection, the appeal was dismissed, and the judgment of the appellate Court maintained by the High Court. In Sher Muhammad Shah's case, the appellant despite admitting that the rate of rent was Rs,10 per month, affixed court-fee of Rs,5 and not Rs,7.50. He subsequently managed to affix court-fee of Rs,2.50 in collusion with the office of the District Judge without permission of the Court.
The appeal was dismissed as being insufficiently stamped. In the second appeal, this Court held as under:- "Be that as it may,' the fact having been established fully that the rate of rent of the disputed premises was Rs,10 per mensem to the knowledge of the appellant, there was no justification for not having affixed the proper court-fee on the memorandum of appeal before the first appellate Court. The lower Appellate Authority was, therefore, within its domain to have dismissed the appeal as being insufficiently stamped especially when no application for permission to make up the deficiency in court-fee was moved till the date of decision in the case when the appeal had apparently become barred by time."
' In Nawab Din's case, the appellant despite becoming aware of deficiency made no effort to make up the deficiency almost for one year. On a finding that the conduct of the appellant smacked of negligence and contumacy, it was held that there was no reason for grant of the extension of time for making up the deficiency of the court-fee. This case also pertained to an appeal under the Rent Restriction Ordinance.
8. For the foregoing reasons, I find no merit in this petition, which is dismissed, leaving the parties to bear their own costs.