' For the order, I propose to pass in this case, reference to pleaded facts would not be necessary.
Suffice it to say that an ejectment petition filed by the respondent against the appellant was dismissed by a learned Rent Controller Tallagang on 26-4-2000. Feeling aggrieved, the respondent filed first appeal, which was heard by the learned Additional District Judge, Chakwal, Camp at Tallagang who allowed the same and directed the appellant to hand over the vacant possession of the shop in dispute. This was done vide order date 19-12-2000.
2. The instant S.A.O. Is admittedly barred by time. Learned counsel asserts that the impugned order is void and as such no limitation would run. Relies on Land Acquisition Collector, Nowshera and others v. Sarfraz Khan and others (PLD 2001 SC 514) and Muhammad Shafi v. Mushtaque Ahmad through Legal Heirs and others (1996 SCMR 856). According to the learned counsel, the first appeal filed by the respondent could not even be heard as the memorandum of appeal did not bear the requisite court-fee. Learned counsel with reference to the case of Habib Ismail Bajwa v. Khawaja Ghulam Mohy-ud-Din (PLD 1970 Lah. 428) asserts that the court-fee is payable on the said memorandum ad-valorem.
3. I have examined the record of Appellate Court, The memorandum of appeal bearing court-fee of Rs,15 was filed on 12-6-2000 to question the said order of the learned Rent Controller. It appears that neither the office nor of course the appellant who had put in appearance on 11-7-2000 raised any objection to this effect till 19-12-2000 when the appeal was heard and decided.
4. There is no doubt that the memo. Of the said first appeal had to bear a court-fee to be calculated on the yearly rent. The agreed rate of rent is Rs,1,900 per month and the court-fee payable on the said amount comes to Rs,1,650 but only a court-fee of Rs,15 has been paid. This fact is apparent on the face of the record that neither the office of the Appellate Court nor the present appellant raised any objection. To my mind, the matter squarely, falls within the ambit of section 28 of the Court-Fee Act, 1870. This is certainly a case where the memorandum of appeal was filed in the Appellate Court, received by it and proceeded with inadvertently while it was not properly stamped. Now section 28 of the ibid Act authorizes this Court to order that the said memo. Of appeal be stamped and the documents having been so stamped and every proceedings thereto shall be as valid as if properly stamped in the first instance. I. Therefore, hereby direct that the respondent shall pay court-fee of Rs,1,635 on the said memo. Of first appeal before the learned First Appellate Court on or before 15-10-2002. In case, the court-fee is deposited on or before the said date, the present S.A.O. Shall stand dismissed as barred by time. In case of failure of the respondent to deposit the requisite court-fee in the said Appellate Court on or before the aforesaid date, the said first appeal shall stand dismissed. No order as to costs.
5. The record of the Lower Appellate Court be remitted back immediately.