1. This second appeal under section 1514) of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance) is directed against the order dated 20-7-1970 passed by the learned III Additional District Judge, Karachi, whereby be allowed the respondent's appeal and set aside the order dated 13-3-1970 passed by the learned Rent Controller striking off the defence of the respondent tenant under section 13(6) of the Ordinance and directing his eviction.
2. The relevant facts are that the appellants landlords applied for ejectment of the respondent tenant from tenement No. 16 of Aulia Building, Burns Road, Karachi, on the ground of default. In the proceedings, learned Rent Controller, on 4-3-1966, passed tentative rent order directing the respondent to deposit Rs. 806.25 as arrears of rent till February, 1966, in two equal instalments before 15th March and 15th April, 1966 and to continue depositing future monthly rent at the rate of Rs. 32.25 before 15th of each month till the decision of the case. The respondent deposited the arrears as directed and continued to deposit future rent regularly for several years till, in the fourth year, he deposited the rent for the month of August 1969 on 11-10-1969, instead of depositing it before 15-9-1969.
3. The appellants thereupon moved an application under section 13(6) of the Ordinance for striking off the defence of the respondent. The explanation of the respondent for depositing the rent late by 26 days was that, as for years he had been depositing future rent mostly in advance for number of months together he, due to miscalculation, remained under the impression that he had already deposited rent for the month of August, but when he realised the mistake, he immediately deposited the rent and, therefore, the. Delay in depositing the rent late was not wilful.
4. The learned Rent Controller, however, did not accept the explanation as satisfactory and struck off the defence of the respondent and directed his' eviction within two months.
5. Being aggrieved, the respondent went in appeal. The learned III Additional District Judge held in the appeal that since this was the only default in years and it was established that ;he respondent had been depositing rent for months together in advance, it supported the contention of the respondent that the amount was not deposited by him due to miscalculation and, therefore, the default was not wilful and allowed the appeal, set aside the order of the learned Rent Controller and remanded the case to him for deciding it on merits according to law. Hence this second appeal by the appellants landlords.
6. Mr. A. A. Fazeel, learned counsel for the appellants, contended that since there was no ambiguity in the order of rent made by the learned Rent Controller, no question of miscalculation arose and this was a case of negligence on the part of the respondent and, as such, the default committed by the respondent was wilful for which his defence was rightly struck off by the learned Rent Controller, and the learned Additional District Judge was wrong in interfering with his order. In support, learned counsel referred to PLD 1963 Quetta 16, PLD 1962 Kar. 817 and 1973 SCMR 243.
7. Mr. A. G. Muhammadally, learned counsel for the respondent, in reply first raised a preliminary objection that this appeal had been filed 66 days beyond the prescribed period of limitation of 30 days under section 15(4) of the Ordinance, and was, therefore time-barred and was liable to be dismissed as such. He contended that after certified copy of the judgment dated 20-7-1970 was delivered to the appellants on 19-8-1970, they filed appeal in this Court on 8-9-1970 with insufficient court-fee of Rs. 4 only, and in spite of office objection did not pay deficit court-fee of Rs.
8. 26 in time and paid it on 12-11-1970, without obtaining any order from the Court and, as such, the appeal was time-barred by 66 days and liable to be dismissed.
9. As to the application made by the appellants under section 149, C. P. C. For condoning the delay in paying deficit court-fee, Mr. Mubammadally submitted that, firstly, it was not supported by any affidavit and, secondly, the appeal having been filed by a senior counsel (other than Mr. A. A.
10. Fazeel) ignorance of law was no excuse, and since limitation vested the respondent with a valuable right which he was not prepared to give up, the appellants were not entitled to the discretion of condonation of the delay, which was committed by the appellants wilfully. In support, the learned counsel relied on PLD 1967 Kar. 35, PLD 1970 Lab. 428 and PLD 1970 Kar. 295.
11. On merits, the learned counsel contended that during the period of four years after the making of the tentative rent order by the learned Rent Controller, it was only on one occasion that the respondent failed to deposit the rent for one month in time, and the explanation given by the respondent in his affidavit, that the mishap occurred because he used to deposit rent for months together in advance and, therefore, due to miscalculation, he remained under the impression that he had deposited the rent for the month of August, stood substantiated by the statement of account which showed that he had been depositing the rent mostly in advance and for number of months together ; consequently, the alleged default was not wilful, as rightly held by the first appellate authority.
12. Learned counsel finally contended that whether or not the default was wilful being a question of fact, it stood concluded by the finding of the first appellate Court and the same could not be disturbed in this second appeal. In support of his contention, learned counsel relied on PLD 1968 Kar. 52, PLD 1966 Kar. 523, PLD 1965 Lah. 594(?).
13. Since the learned counsel for the respondent has raised a preliminary objection as to the appeal being time-barred, it is only appropriate to deal with this contention first.
14. The record shows that the judgment in appeal was passed on 20-7-1970, of which certified copy was delivered to- the appellant on 19-8-1.970 tad tbs appeal was presented in this Court by the appellant through his counsel on 8-9-1970 with court- fee of Rs. 4 only. Since the court-.Fee paid on the memorandum of appeal was insufficient, the office, on 19-9-1970, raised an objection for paying proper court-fee. To this, the learned counsel for the appellant (other than Mr. A. A. Fazeel) replied vide his endorsement dated 29-9-1970, that the court-fee paid was sufficient as it was a Miscellaneous Appeal. Thereafter, the office again repeated the objection dated 3-10-1970 which reads as under :- "This appeal arises out of an order for ejectment. Court-fee may please be paid on the annual rental value. Please refer PLD 1967 Kar. 35.
15. (Sd.) 3-10-70."
16. The appellants still did not pay the court-fee as demanded and, instead, their counsel replied vide his note dated 21-10-1970, that the appeal was against an order passed under section 13(6) which was not final. The office again pointed out that the order passed by the Rent Controller was final and again demanded proper court-fee by its note dated 27-10-1970. The learned counsel for the appellants; however, paid the deficit court-fee on 12-11-1970, and, on 23-11-1970 made the application under section 149, C. P. C. For condoning the delay in paying deficit court-fee.
17. It was not disputed that the appeal having been filed with insuffcient court-fee and the deficit court-fee having been paid on 12-11-1970, the appeal would be time-barred by 66 days, unless the delay in paying the deficit court-fee by the appellants is condoned by the Court under section 149, C. P. C. The question for consideration, therefore, is whether this is a fit case for condoning the delay.
18. Sections 4 and 6 of the Court Fee Act, 1870 provides that no document chargeable with court-fee under the Act shall be filed, or recorded in any Court of justice, unless the court-fee payable in respect thereof is paid and the institution of a suit or appeal or the presentation of document would not be a legal presentation or institution if the fee chargeable under the law is not paid at the time of such institution or presentation. Section 149, C. P. C., however, enacts as exception to that rule by conferring a discretion in the Court to allow the party to make good the deficit court- fee at any stage of the proceedings, but as held by the Division Bench of this Court in the case reported as H. H. S. Feldman v. The Province of East Bengal (PLD 1970 Kar. 295ttais discretion is not to be exercised arbitrarily or capriciously but judicially and with utmost care. The reason for this caution is obvious, for, when' appeal is not filed with proper court-fee in time, the appeal becomes time -barred and the respondent gets a valuable right which the Court would not deprive him of by exercising the discretion to his prejudice except where sufficient grounds exist for non-payment of the full court-fee in the first instance. Now, the only ground urged in the application made by appellants under section 149, C. P. C., without any supporting affidavit, for condoning the delay is that the appellants were under the impression that the above,, appeal being an appeal against an interim order, it would attract court-fee of Rs. 4 only and not as a regular repeal. The circumstances, pointed out above in the judgment, in which the deficit court-fee was paid by the appellants would, however, show that the delay on the part of the appellants in paying deficit court-fee was wanton anti deliberate. Soon after the appeal was filed in Court by the appellants through their Advocate, it was pointed out to them by the office that proper court-fee had not been paid. The appellants, however, did not pay the court-fee and insisted that proper PLD 1970 Kar. 295 court-fee had been paid. Thereafter, the office again repeated the objectio on 3-10-1970 stating expressly that court-fee was payable on the annu rental value and in support referred to the decision of this Court reported in PLD 1967 Kar.
35. Yet, the appellants did not care to pay the deficit court-fee although they were represented by a counsel who could no be unaware of the consequences in the alternative. Even if the appellants and their counsel were initially under the impression that court-fee w not required to be paid according to the annual rental value, they had no justification to remain under the impression after the office had expressly raised the objection and even referred to the decision of Court which, indeed, required payment of court-fee on the annual rental value. What is worse, the appellants did not pay the deficit court-fee even after the office had thereafter repeated the objection for the third time on 27-10-1970, and it was only on 12- 11-1970 that they paid the deficit .Court-fee without making an application under section 149, C. P.
19. C., which they chose to make 11 days thereafter, on 23-11-1970, without filing any supporting affidavit.