' The questions which arise for determination in the present petition are as to whether the appeal against the order of dismissal of the ejectment petition of the appellant before the Distt. Judge, was liable to ad valorem court-fee as required by Article 11 of Schedule II of the Court Fee Act, and if so, what is the effect of non-payment of court-fee on the appeal. These questions have arisen under the following circumstances:- ' An application for ejectment under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, was filed by Muhammad Younus respondent No,1 against the petitioner which was dismissed on 4- 10-1990. Aggrieved, respondent No,1 filed an appeal before the Additional Distt. Judge, where an objection was raised by the petitioner-respondent that the appeal was deficiently stamped rather no court-fee had been paid on it and as such it was liable to be rejected. This objection was repelled by the learned Addl. Distt. Judge vide his order dated 23-4-1991, which has been assailed in this petition.
3. The learned counsel for the petitioner has contended that as the order passed by the Rent Controller under section 13 of the Punjab Rent Restriction Ordinance, 1959 has the force of a decree, the appeal against is liable to be stamped with ad valorem court-fee as required by Article 11 of Schedule II to the Court Fees Act. The learned counsel criticised the view taken by the learned Additional Distt. Judge by arguing that it was anomalous to hold that the appeal against the order dismissing the ejectment petition, should not be so stamped. It was further argued by the learned counsel for the petitioner that as respondent No,1 had contumaciously and deliberately failed to pay any court-fee on the appeal, it was liable to be rejected.
4. On behalf of respondent No,1 it has been argued by his learned counsel that as the order of dismissal of the ejectment petition under section 13 of the Punjab Rent Restriction Ordinance, 1959 is not executable and does not have the force of decree, therefore, the learned Additional Distt.
Judge correctly overruled the objection of the petitioner. - 5. The provisions which govern the payment of court-fee are to be found in Article 1 Schedule I and Article 11 of Schedule II to the Court Fees Act, 1870. A cumulative reading of these two provisions would show that on appeal against the decree or order having the force of a decree, the appellant is liable to pay ad valorem court-fee while in other cases, a fixed amount of Court fee is payable on memorandum of appeal.
6. It has been held in a large number of cases by this Court that the order passed by the Rent Controller under section 13 of the Punjab Rent Restriction Ordinance, 1959 has the force of a decree and therefore, on memorandum of appeal against such order, ad valorem court-fee must be paid.
Some of the cases to which reference may be made are:
(1) "Habib Ismail Bajwa v. Ghulam Mohay-ud-Din" (PLD 1970 Lahore, 428).
(2) "Nawab Din v. Basharat Ali" (1986 MLD 692).
(3) "Ghulam Hassan v. Dr. Rashid Ahmed" (PLD 1967 Karachi 35).
(4) "Dr. Khalid Karim v. Addl. Distt. Judge, Rawalpindi" (PLD 1991 Lahore 1).
7. In the impugned order, however, the learned Addl. Distt. Judge has taken the view that it is only in a case where an order of ejectment has been passed by the Rent Controller that the appellant is required to pay ad valorem court-fee on the memorandum of appeal but in the event of dismissal of the petition, no such court-fee is payable. The learned counsel for respondent No,1 has pressed the same argument into service and contended that as the order of dismissal of ejectmen petition is not executable it cannot be termed as a decree.
8. I find myself unable to. Agree with the learned counsel for respondent No,1. If the order of an ejectment passed by the Rent Controller has the force of a decree, it is not understandable as to on what legal principle can the order of rejection of the ejectment petition be termed as not having force of a decree. It appears that the learned Additional Distt. Judge mixed up the concept of an order being executable as a decree and the order having the force of a decree. The relevant expression used in Article 11 of Schedule II to the Court Fees Act, 1870, is 'the order having the force of a decree" and not the order being executable as a decree. The decree of dismissal is as much a decree as a decree passed in favour of the plaintiff. This concept is too well-established to need any authority. Suffice it to say that any formal adjudication of a matter whether in favour of the one party or the other, would carry the same status and question as to whether that decision has force of a decree cannot be made dependent upon the result being in favour of one party or the other.
9. Learned counsel for respondent No,1 has not challenged the correctness of the view taken in above-cited cases, holding that ad valorem court-fee is payable on the appeal arising out of an order passed by the Rent Controller but has pointed out that in all these cases, the appeals were against the orders of ejectment. This argument is however not correct. In "Habib Ismail Bajwa v.
Ghulam Mohyud Din" (PLD 1970 Lahore 428), the appeal before the Distt. Judge was directed against the order of Rent Controller, dismissing the application for ejectment and yet it was held that ad valorem court-fee was payable on such an appeal.
10. While I agree with the learned counsel for the petitioner that the appeal filed by respondent No,1 before the Addl. Distt. Judge was liable to be stamped ad valorem but I cannot accept this contention that the appeal was liable to be summarily rejected on account of non-payment of court-fee without any time being granted to respondent No,1 to make up the deficiency. This argument runs counter to the famous judgment of the Supreme Court Siddique Khan and 2 others v. Abdul Shakur Khan and another (PLD 1984 SC 289) in which it was authoritatively laid down that without calculating the court-fee payable and allowing an opportunity to make up the deficiency, the appeal cannot be dismissed.
' In view of what has been stated above, the impugned order of the learned Addl. Distt. Judge is held to be of no legal effect and that matter is remanded to the Addl. Distt. Judge who shall proceed to calculate the court-fee payable on the appeal by the respondent No,1 and direct him to pay the court-fee ad valorem within the time fixed by him, failing which his appeal shall be liable to be dismissed. Parties are directed to appear before the lower appellate Court on 1-11-1992.