RAZAK Versus USMAN

ORDER

DORAB PATEL, J. ‑The common question in all these office references is, whether court‑fee under the Court Fees Act can be levied on suits filed in the Original Side of this Court, and on appeals against Judgments and orders passed on the Original Side of this Court. The contention of the learned counsel for the plaintiffs and for the appellants is that, on a proper construction of sections 3 and 4 of the Court Fees Act, such court‑fees cannot be levied, whilst, on the basis of a judgment of Wahiduddin Ahmed, J., in Firdous Trading Corporation v. Japan Cotton and General Trading Co. Ltd. (P L D 1961 Kar. 565) the learned Advocate‑General defended the practice of this Court in levying court‑fees under the Court Fees Act on suits and appeals. Sections 3, 4 and 6 of the Court Fees Act are relevant to the arguments advanced before us, and, whilst sections 3 and 4 have been amended from time to time, section 6 continues in the form in which it was originally enacted 105 years ago. I would first quote these sections‑ as they now read

"(3) The fees payable for the time being to the clerks and officers (other than the sheriffs and attorneys) of the High Courts ; or chargeable in each of such Courts under No. 11 of the first, and Nos. 7, 12, 14, 20 and 21 of the Second Schedule to this Act annexed; shall be collected in manner hereinafter appearing.

(4) No document of any of the kinds specified in the First or Second Schedule to this Act annexed, as chargeable with fees, shall be filed, exhibited or recorded in, or shall be received or furnished by, any of the High Courts in any case coming before such Courts in the exercise of its extraordinary original civil jurisdiction; or in the exercise of its extraordinary original criminal jurisdiction ; or in the exercise of its jurisdiction as regards appeals from the Judgments (other than Judgments passed in the exercise of the ordinary original civil jurisdiction of the Court) of one or more Judges of the said Court, or of a division Court ; of in the exercise of its jurisdiction as regards appeals from the Courts subject to its superintendence ; or in the exercise of its jurisdiction as a Court of reference or revision; unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said schedules as the proper fee for such document.

(6) Except in the Courts hereinbefore mentioned, no document of any of the kinds specified as chargeable in the First or Second Schedule to this Act annexed shall be filed, exhibited or recorded in any Court of Justice, or shall be received or furnished by any public officer, unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said Schedules as the proper fee for such documents."

2. The expression "Courts hereinbefore mentioned" in section 6 refers to the Courts specified in section 3, and the Courts specified in section 3, as it now stands after a succession of amendments, are the High Courts; therefore section 6 draws a distinction between High Courts and all subordinate Courts. A s Court‑fees on suits and appeals in all subordinate courts have to be paid under section 6 at the rate prescribed in the schedules to the Court Fees Act, whilst the‑fees on suits and appeals in the High Courts are governed by the provisions of sections 3 and 4 of the Court Fees Act, and I will consider first the question of appeals against Judgments pronounced on the original civil side of this Court.

3. Section 3, which I have quote, is ambiguous, but its marginal note states that it refers to the levy of fees in High Courts on their original side. There is a conflict of opinion as to whether the first clause of this section is not wide enough to cover fees on appeals levied by the Presidency High Courts under their rules and orders. But, as no such rules have been framed by this Court, it is quite unnecessary to go into this controversy, and it is sufficient to state that appeals in this Court do not fall under section 3. They fall under the third clause of section 4, and, as an appeal is a document specified in both the schedules of the Court Fees Act, it is clear that court‑fees under the Court Fees Act are payable on all appeals in this Court, unless they fall within the exception created by the words in brackets in this clause. I shall refer to this exception as the said exception, and, according to all the learned counsel, this exception was created, because inter‑Court appeals were not really appeals, but were in the nature of reviews. The submission relates to the motives of the Legislature in enacting this exception, and, as the Legislative intent is plain beyond doubt, I see no reason to examine the motives of the Legislature, but I would point out here that the said exception was inserted in the section by an amendment in 1922, which was enacted in consequence of certain decisions of the High Court, to which I will presently refer.

4. The question before us is of the meaning of the words "ordinary, original civil jurisdiction", and even the learned Advocate‑General, who was appalled by the possible loss of revenues to the State, had to concede that a suit pertains to the civil jurisdiction of a Court, and not to its criminal jurisdiction. Then, as to the word "original", it can only refer to the) jurisdiction of a Court to decide a matter as a Court of the first instance, therefore this means that a suit decided by this Court is decided in the C exercise of its original jurisdiction, just as a Constitutional petition is decided in the exercise of its original jurisdiction. The learned Advocate‑General feebly pointed out that Waheeduddin Ahmad, J., bad taken a contrary view in the Firdous Trading Corporation's case on the basis of some Indian rulings, But this view must be rejected, as it is contrary to the judgment of the Supreme Court in Ahmad Khan v. The Chief Justice and Judges of the High Court of West Pakistan (PLD 1968 S C 171). Therefore, the controversy before us turns really on the meaning of the word "ordinary". The learned Advocate‑General by passed this question and would not explain what the meaning of the word was, and, although it is obvious, I would quote the meanings from the Oxford Dictionary. These are, "regular", "normal", "customary", usual "not exceptional". As, subject to rules of valuation and for the accrual of the cause of action. suits are filed as of right on the Original Side of this Court, it follows that they are filed in the regular, normal, usual and .customary course. Hence my earlier observation that, the meaning of the said exception is very clear. But assuming, without conceding, that there is any ambiguity about this provision, the section itself removes all possibility of doubt. Thus, the first clause of section 4 refers to cases coming before a High Court "in the exercise of its extraordinary original civil jurisdiction". This expression, which is to be found in the Letters Patent of all the High Courts, refers to the power of such a High Court, "when the High Court .shall think proper to do so", to transfer to itself a suit pending in a Court subject to its superintendence. And because the word "extraordinary" refers to this special power, the word "ordinary" in the same section can only have reference to the jurisdiction of a High Court, which a plaintiff, filing a suit, ,is entitled to invoke as of right.

5. Additionally, the words "ordinary original civil jurisdiction" have been copied from clause 11 of the Letters Patent of the Presidency :High Courts of Bombay. Calcutta and Madras, and, according to this .clause, the High Court "shall have and exercise ordinary original civil jurisdiction within such local limits as may, from time to time, be .declared and described by any law . . . . " So, as ignorance cannot be P attributed to the Legislature, the words "ordinary original civil jurisdiction" in the said exception must have the same meaning as in clause 11 of the Letters Patent of the three Presidency High Courts, and, as the jurisdiction exercised by these three High Courts under clause 11 of their Letter Patent is identical to the original civil jurisdiction of this Court, I have no .doubt that this original civil jurisdiction of our Court also can only be described as its ordinary original civil jurisdiction. Additionally, this very point was considered by the Supreme Court in Mumtaz Khan v. The Chief Settlement and Rehabilitation Commissioner and another (P L D 1966 S C 276) and S. A. ,Rehman, J., observed :

"The writ jurisdiction of the High Court of West Pakistan exerciseable under the Laws (Continuance in Force) Order, 1958, is certainly not synonymous with the technically described "ordinary original civil jurisdiction" to try suits arising within certain territorial limits, such as is enjoyed by the Karachi Bench of the High Court."

6. The learned Advocate‑General , then attempted to justify the levy, ,.of court‑fees on inter‑Court appeals in this Court by reference to what he described as the scheme of the Court Fees Act manifested in the amend ments of section 3. But, strongly enough, the learned Advocate‑General did not think the amendments of this section after Partition to be relevant. Be that as it may, in order to appreciate his submission, I may point out that the first clause of section 3, as originally enacted, read as follows a

"(3) The fees payable for the time being to the clerks and officers (other than the sherrifs and attorneys) of the High Courts established by Letters Patent, by virtue of the powers conferred by Statute twenty‑fourth and twenty‑fifth of Victoria, Chapter one hundred and four, section fifteen.

This clause was amended first in 1917 after the Government of India Act, 1915, and again, in 1937 after the Government of India Act, 1935. The result of the. first amendment was that the words "Statutes 24 and 25 Victoria, Chapter 104, section 15" were substituted by the words "section 15 of the Indian High Courts Act, 1861, or section 107 of the Government of India Act, 1915", and by the Government of India (Adaptation of Indian Laws Order) 1937, this provision was again amended, so that after the words "The Government of India Act, 1915" the words "or section 229 of the Government of India Act, 1935" were inserted. The statute referred to in the section as originally enacted was the East India (High Courts of Judicature) Act, 1861, and section 15 of this Act empowered the High Courts to be set up by Letters Patent to levy fees. Then, on the promulgation of the Government of India Act, 1915, the provision for the levy of fees by the Letters Patent High Courts was contained in section 107, whilst the corresponding provision in the Government of India Act, 1937, was contained in section 229. Now, according to the Advocate‑General, in the exercise of these powers, the Chartered High Courts were levying fees, which were more or less at the rates specified in the schedules of the Court Fees Act; therefore it was not necessary to extend the Court Fees Act to these Courts. However, as other Courts, including the Superior Courts, such as the Chief Courts and the Judicial Commissioner's Courts, did not have any power to levy court‑fees, the Legislature had made express provision in section 6 for the levy of court‑fees by extending the Court Fees Act to such other Courts, and, according to the learned Advocate‑General, the scheme of this Act was this distinction between the Chartered High Courts, which levied fees. and other Courts which could not. The learned Advocate‑General did not refer us to any rules or orders in support of the submission that the Chartered High Courts were levying fees at rates comparable to that under the Court Fees Act, but, according to a copy of the rules and orders of the Calcutta High Court supplied to me by Mr. S. Shareefuddin Pirzada, the fee on plaints in the Calcutta High Curt was only Rs. 20.00. Mr. Hameed‑ul‑Haque Chowdhury, the plaintiff in one of the suits before us, was a Barrister of the Calcutta High Court, and he assured us that the fee had remained at Rs. 20.00 till the time of Partition. MT. S. Shareefuddin Pirzada also stated from his personal experience of the Bombay Bar that the fee in Bombay High Court on plaints was the same, whilst, as to Madras, the position was altered by Legislation after Partition. Again, if we have to gather the scheme of the section, why should our enquiry be limited to the amendments in the section before Partition? I would have thought that the subsequent amendments would be far more important, and I may point out here that, after the amendment of the section by the Adaptation of Central Acts and Ordinances Order, 1949, the first clause of the section read

"The fees payable for the time being to the clerks and officers (other than the sherrifs and attarneys) of the High Courts, which are High Courts for the purposes of the Government of India Act."

Section 219 of the Government of India Act, 1935, specified the Courts deemed to be High Courts for the purposes of that Act. These Courts were the Letters Patent High Courts, including the Lahore High Court. and under the section as amended in 1940, it included also the Sind Chief Court and the Court of the Judicial Commissioner, North‑West Frontier Province. Now, the effect of this amendment of section 3 in 1949 was to eliminate the distinction, which would, otherwise, have existed between the superior Courts of the country, and the intention of the Legislature obviously was that there should be no discrimination between these Superior Courts. Finally, after the creation of West Pakistan and the setting up of the West Pakistan High Court, this first clause of the section was amended again, so that it now refers only to the High Courts.

7. As section 4 refers to the Courts specified in section 3, these amend ments of section 3 have necessarily extended the scope both of section 3 and of section 4, and, as I am examining the question of appeals first, it would be convenient to consider also the changes in section 4. The section, as originally enacted and until its amendment in 1922, in so far as it related to civil appeals in the High Courts, read as follows

"No document of any of the kinds specified in the First or Second Schedule to this Act annexed as chargeable with fees, shall be filed, exhibited or recorded in, or shall be received or furnished by, any of the High Courts in any case coming before such Courts in the exercise of its extraordinary original civil jurisdiction; . . . or in the exercise of its jurisdiction as regards appeals from the judgment of two or more Judges of the said Court, or of a Division Court . . . . . unless . . . . . there be paid a fee . . . . . indicated by either of the said schedules . . . . Court‑fees were thus payable on appeals from the judgment of two or more Judges of a High Court, or of a Division Court, and as there was no provision for levying court‑fees on an appeal in the High Court against a judgment of a Single Judge of the High Court, the Lahore High Court held in Har Dial Shah v. The Secretary of State for India In Council (I L R 3 Lah. 420), that no course‑fees were payable on an appeal against the judgment of a Single Judge of that Court. This was also the view of the Patna High Court in Raghubar Singh v. Sethu Mahton (1922 C W N 88). The said exception was inserted after these judgments, and in order to change the law declared in them. The effect of the amendment was that all civil appeals in the High Court, even though they were inter‑Court appeals, were made liable to court‑fees under the Court Fees Act, except for the appeals which fell within the said exception. Now, at the date of this amendment, the said exception had reference only to the Presidency High Courts, because those were the only Courts which, under their Letters Patent, exercised an ordinary original civil jurisdiction; therefore, in my humble opinion, on the footing that the scheme of this Act is relevant, the scheme was that the exemption from Court‑fees should be confined to those High Courts which had an ordinary original civil jurisdiction, and this distinction between ,the two types of High Courts was based on the long history of judicial institutions in the sub‑continent.

8. I pointed out earlier that the Presidency High Courts bad an original civil jurisdiction. They also had a similar criminal jurisdiction, and this was because they were the successors of the Supreme Courts which had been created under the Regulating Act of 1773. The first of the chartered Supreme Courts to be set up under this Act was the Supreme Court of Calcutta, and Setalvad on "The Common Law in India" writes at page 19

"In 1774 came the establishment of the first of the Supreme Courts at Calcutta envisaged by the Act of 1773. It was to be a Court of record and was to have such jurisdiction and authority as the Court of King's Bench had in England by the Common Law of England (Clause IV). It was also to be a Court of equity (Clause XVIII). It was also to be a Court of byer and terminer, and gaol delivery at Calcutta and was to inquire into offences with the help of juries (Clause XIX). Like the Court of King's Bench in England it was authorised to issue writs of mandamus, certiorari, precedents or error (Clause XXI). It was to exercise ecclesiastical jurisdiction in Bengal, Bihar and Orissa such as was exercised in the diocese of London (Clause XXIL). It had authority to appoint guardians of infants and of insane persons and of their estates (Clause XXV). It was also to be a Court of Admiralty. The jurisdiction of the Court extended to all British subjects residing in the whole of Bengal, Bihar and Orissa. It also extended to all persons employed in the service of the company and in certain cases over other Indian inhabitants also. The Court was modelled entirely on the English pattern with jurisdiction over a large population in the Presidency Towns and other areas."

The Supreme Courts of Madras and Bombay were set up in 1801 'and 1823 respectively, and the jurisdiction exercised by them were the same as those of the Supreme Court of Calcutta, and, like that Court, these Courts also were set up by royal charters. Now, because the Supreme Courts administered English law and were on the English pattern, they bad no institution fee whatsoever, and this practice was continued by the Presidency High Courts, which levied a fee which was not more than a charge for serving process. But the position outside these three privileged Presidency Towns was very different. There, the Courts which emerged with the extension of British rule were not the Courts of the Crown, but the Courts set up by the East India Company. Once again, I may, with advantage, quote from Setalvad. This eminent jurist observes at page 22

"We may now turn to the administration of justice and law in the mofussil. The administration of civil justice outside the Presidency Towns was associated with the management of revenue and the Company took a considerable time to evolve a regular system of administration of justice, after it had by the grant of Diwani of Bengal, Bihar and Orissa become virtually the sovereign of these territories. It established two Superior Courts; the Sadar Diwani Adalat, a final Court of appeal in civil matters, 'and the Sadar.Nizamat Adalat, the final Court of criminal appeal which was empowered to revise and confirm sentences awarded by the criminal courts. Subordinate to these superior courts were the District Diwani and Foujdari Adalats. "

9. The structure of the Courts set up by the Company in the other Regulation Provinces outside the Presidency Towns was similar, although not identical. It is, however, sufficient to state here that, in these provinces also, the Sadar Diwani Adalat was the highest Court of civil appeal with an exclusively appellate jurisdiction, and a Sadar Diwani Adalat was set up in 1832 for the North-Western Provinces, to which the High Court of the North‑Western Provinces set up at Agra in 1866, was the successor. And, like the Court to which it succeeded, the High Court of the North‑Western Provinces (which became the Allahabad High Court in 1875) did not have any ordinary original civil or criminal jurisdiction. The result was that, when the Court Fees Act was promulgated in 1870, there were two types of High Courts : High Courts whose normal jurisdiction was an appellate jurisdiction only, like the High Court of the North‑Western Provinces, and the Presidency High Courts. And because the Presidency High Courts were the successors both to the Supreme Court of the Presidency Towns as well as to the Sadar Diwani Adalats of the three Regulation Provinces, these High Courts combined original and appellate jurisdiction.

10. Another difference between the two systems of Courts, to which Mr. S. Shareefuddin Pirzada referred us, was the liability for court‑fees on suits. Almost from the time when he had commenced organising the Company's Courts, Warren Hastings had, in 1780, imposed court‑fees on suits, which ranged from two per cent. to five per cent. of the value of the subject matter of the suit. These fees were abolished by his successor. Lord Cornwallis, on the ground that a tax on justice was a disgrace to a civilized power. However, two years later in 1795, after the retirement of Lord Cornwallis, court‑fees were re‑introduced and enhanced later. I state this from Jain's Outlines of Indian Legal History, to which Mr. S. Shareefuddin Pirzada referred me. However, the learned author has not stated whether the court‑fees thus introduced in the Provinces of Bengal, Bihar and Orissa were also extended to the other Regulation Provinces, and it is unlikely that they would have been extended to the Non‑Regulation Provinces. Be that as it may, these fees were never extended to the Supreme Courts, because they were the King's Courts. .

10‑A. Now, the amendment of section 4 of the Court Fees Act in 1922 has to be examined in this background. As I explained, the effect of the amendment was to apply the Court Fees Act to civil appeals in the High Courts, except those which fell within the said exception, but, on the date of the amendment, only the Presidency High Courts had an ordinary original civil jurisdiction; therefore, the object of the amendment was to protect the privilege which the citizens of the Presidency Towns had enjoyed for many generations. However, the year 1922 was a year of ferment. The Legislature was aware that new High Courts would be created, and in the very next year the benefit of the said exception became available to appeals in the Rangoon High Court, because the Letters Patent of this High Court was on the lines of the Letters Patent of the Presidency High Courts. Thus, it was obvious that any enlargement of the definition of the Court in section 3 of the Court Fees Act would extend the benefit of the said exception to Courts set up on the lines of the Presidency High Courts. Now, the Sind Chief Court, at the time of Partition, did not come within the ambit of section 3, but, as pointed out in the prefaces to the Rules of the Chief Court, both of the original and of the appellate side, "the Sind Court's Act 1926 followed closely the lines of the Letters Patent of the Bombay High Court"; therefore the effect of the amendment of section 3 of the Court Fees Act by our Legislature in 1949, so as to bring the Sind Chief Court within the ambit of the section, was to extend to appeals in this Court the benefit of the said exception. The learned Advocate‑General was appalled at the prospect of the consequent loss of revenue, because, as Karachi was a Port, there was a very large volume of commercial litigation, and he appeared to think that no sane Legislature could abolish so lucrative a source of revenue. But the question is of construing the intention of the Legislature and, as I said, I see no ambiguity in the amendments of section 3 of the Court Fees Act.

11. The learned Advocate‑General then referred us to section 8 of the Sind Court's Act, 1926, which reads

"(8) The Chief Court shall be the highest civil Court of appeal and revision and the highest Court of criminal appeal and revision for Sind and the principal civil Court of original jurisdiction for the civil district of Karachi and shall be the Court of Session and shall exercise the powers and perform the duties of a Sessions Judge in the Sessions Division of Karachi."

According to the learned Advocate‑General, this section supported his submission, because there was something derogatory about the expression "the civil district of Karachi". But we pointed out that the jurisdiction of every Court had to be defined, and the section defined the limits of the original civil jurisdiction of the Chief Court by limiting it to Karachi, just as the original civil jurisdiction of the Presidency High Courts is limited, for example, to the cities of Bombay and Calcutta. The learned Advocate General then submitted that the word "district" was always used with reference to a District Court, and also the expression "principal civil Court of original jurisdiction". The submission is totally fallacious, and I would observe here that these expressions have been re‑produced from an earlier enactment, to which we must turn in the event of any ambiguity about the civil jurisdiction of Courts. The enactment I mean is the Civil Procedure Code of 1908, section 2(4) of which defines a district as follows :

"(4) "district" means the local limits of the jurisdiction of a principal civil Court of original jurisdiction (hereinafter called a "District Court"), and includes the local limits of the ordinary original civil jurisdiction of a High Court."

Thus, this definition uses both the expressions, which, according to the Advocate‑General, indicated a subordinate status, yet the Legislature used them expressly with reference to High Courts, and further, when the Code of 1908 was enacted, the only High Courts, to which these expres sions were applicable, were the Presidency High Courts. Now, these Courts and the Supreme Courts, to which they succeeded, had exercised the prerogative writs for several generations before the other High Courts acquired this privilege; therefore, in my humble opinion, it is against reason to describe a jurisdiction exercised by these Courts as inferior, merely because it was not exercised by some High Courts set up several generations later.

12. However, in the Firdous Trading Corporation's case, Waheeduddin Ahmad, J., expressly referred to this original jurisdiction as a "District Court jurisdiction", and, as submitted by the learned Advocate‑General, this expression implies that the original civil jurisdiction conferred on this Court is not a fit or proper jurisdiction for a High Court, because the very expression indicates that such a jurisdiction can only be the jurisdiction of a subordinate Court. But, with the utmost respect, this expression "District Court jurisdiction" is not to be found in the Court Fees Act, which had to be construed by the learned Judge, nor is it to be found in the Civil Procedure Code, nor was the learned Advocate‑General able to refer us to any statute in which ft has been used. In my humble opinion, the expression is unfortunate, because it begs the question. However, out of my respect for the eminent Judge, who coined it, I would examine his judgment, the more so, as the learned Advocate‑ General's main submissions were based on it. But, before doing so, I may point out that the West Pakistan High Court was abolished with the dissolution of the province of West Pakistan, and, under the province of West Pakistan (Dissolution) Order, 1970, High Courts were to be set up for the new provinces thus created or rather recreated. High Courts were, therefore, set up under the High Courts (Establishment) Order, 1970. Paragraph 3 of this Order specified the three High Courts thus set up, and clause (2) of this paragraph read

"(2) Each new High Court shall be a Court of record and shall have such original, appellate and other jurisdiction and such powers and authority m respect of the territories for which it is established as the High Court of West Pakistan, immediately before the appointed day, had in respect of the territories in relation to which it exercised appellate jurisdiction."

Finally, came the revocation of Martial Law with the new Constitution. And the result is that the Letters Patent of the Lahore High Court have ceased to be relevant to the question of the jurisdictions exercised by this Court, which it is our privilege to serve.

13. The judgment in Firdous Trading Corporation v. Japan Cotton and General Trading Co. Ltd. has to be considered in this background. The decision was on an office reference identical to those in the appeals before us, and it would appear that a suit filed in the Sind Chief Court under section 8 of the Sind Courts Act, 1926, had been decided after the creation of the West Pakistan High Court. Therefore, the appellant filed an appeal under the Letters Patent of the Lahore High Court and contended that no court‑fees were payable on this appeal, as it fell within the said exception. Now, it was obvious that the appeal was an inter‑Court appeal in a High Court, and on the observations of the Supreme Court in Mumtaz Khan's case, it would follow that the appeal fell within the said exception. But, unfortunately these observations were not available when Wahiduddin Ahmad, J., decided the reference before him, and he rejected the plea of the appellant by holding that the judgment under appeal was pronounced in the exercise of the High Courts District Court jurisdiction. With the utmost respect, this expression is a contradiction in terms. How can a judgment of a High Court pronounced by a Judge of the High Court be treated or equated with a District Court judgment, at least in the absence of some deeming provision in the law, and admittedly there never has been any such deeming provision. Therefore, the conclusion reached by the learned Judge was somewhat unusual. And the question is whether by coing an expression, namely, "District Court Jurisdiction", we can nullify the plain language of sections 3 and 4 of the Court Fees Act. Mr. Khalid M. Ishaq, who has been of every great assistance to us, submitted that the view of Waheedud din Ahmad, J., that a judgment of the original side of this Court was in the exercise of a District Court jurisdiction based on four grounds, and T would first examine these four grounds.

14. The first ground given by Waheeduddin Ahmad, J., for his view was that the original civil jurisdiction of the Karachi Bench of the West Pakistan High Court was not derived from the Letters Patent of the Lahore High Court. That is correct, but the jurisdiction was derived from the Sind Court's Act by which the Sind Chief Court was set up. And further the West Pakistan High Court was a merger of the Superior Courts of the country, three of which had been expressly given the status of a High Court under the Constitution namely section 219 of the Government of India Act, 1935. Therefore, in my humble opinion, nothing turned on the fact that the jurisdiction of the Lahore High Court was derived from that Court's Letters Patent, whilst the jurisdiction of the Sind Chief Court was derived from the statute by which it had been created, except, of course, on the assumption that there was some innate superiority in the Lahore Letters Patent. But, according to the learned Advocate. General, the jurisdiction conferred on a High Court by Letters Patent had a higher status than that conferred by a statute, and, in support of this submission, he relied on the observations of Waheeduddin Ahmed, J., at page 580. Although the observations are not clear, on, the whole, they support the Advocate. General's submission, but i cannot agree with them. In my humble opinion, the fact, that the Lahore High Court was set up under its Letters Patent, whilst the Sind Chief Court was set up by an Act of the Legislature, is immaterial, because the validity of neither Legislation is questioned before us, but what is material is that both these Courts were declared to be High Courts for the purpose of the then Constitution, namely, the Government of India Act, 1.935. However, the question is of academic interest now, because the Letters Patent of the Lahore High Court are no longer relevant to the question of the jurisdiction of this Court.

15. The second ground given by Waheeduddin Ahmad, J., was that the original civil jurisdiction of this Court was a District Court Jurisdiction, because this jurisdiction was to be abolished. This reasoning is supported by the proviso to paragraph 5 of the Establishment of the West Pakistan High Court Order, 1955, which envisaged the abolition of this jurisdiction. Accordingly, the learned Advocate‑General submitted that, as this jurisdiction was to be abolished, it was a subordinate jurisdiction, proper only for District Courts. D4ow, even if the Legislature intended to abolish this jurisdiction, how can this intention lead to the conclusion that a jurisdiction conferred by law on a High Court was a jurisdiction unfit to be exercised by that High Court? In any case. jurisdictions, like states, do not wither away, and the original civil jurisdiction of this Court continues to flourish, whilst the Legislation, which contemplated its abolition, has, if I may say so, been itself abolished.

16. The third ground given by Waheeduddin Ahmad, J., for his view was that the original civil jurisdiction of the Karachi Bench was confined to that Bench. That is true, but, at the highest, this would mean that the jurisdiction thus exercised was different from that in the other Benches of the High Court. This was because the Legislature had so willed; so this cannot possibly lead to the conclusion that such a jurisdiction was only fit for subordinate Courts. .To take another example, the Karachi Bench of the West Pakistan High Court had Admiralty jurisdiction, which, by the nature of things, could not be exercised by the High Court in Lahore; therefore, on the view taken by Waheeduddin Ahmad, J., this Admiralty jurisdiction would also be a subordinate jurisdiction. But, for a long time, this jurisdic tion had been conferred on the Patna High Court, because the provinces of Bihar and Orrisa had a coast Line; so, on the reasoning in the case cited, the Admirality jurisdiction of the Patna High Court was a High Court Jurisdiction, because it was conferred under the Letters Patent of that High Court, whilst the very same jurisdiction, when exercised by this High Court, became a District Court Jurisdiction, because it was conferred by an Act of the Legislature. With respect, I am unable to agree with this view, but it is not necessary to discuss further these three grounds, because they all have reference to the constitution of the West Pakistan High Court which has been abolished.

17. The fourth ground for the view of Wahiduddin Ahmed, J. was that the original civil jurisdiction of this Court was similar to its writ jurisdiction, and, on the basis of certain Indian decisions, he held that this writ jurisdiction is not an ordinary jurisdiction of the High Court, and, from this, he drew the further inference that the original civil jurisdiction of the Court was not an ordinary jurisdiction. Now, the question, whether the writ jurisdiction of the Court was an ordinary or an extraordinary jurisdiction, as held by Waheeduddin Ahmad, J. was considered by the Supreme Court in Ahmad Khan's case and, as their Lordships repelled the contention that it was an extraordinary jurisdiction, the fourth ground for the view taken in the case cited is also not sound.

18. However, these four are not the only reasons given by Wahiduddin Ahmad, J., for the view taken by him. Thus, he observed at page 575

"The history of the establishment of the High Courts in this sub continent shows that there were only three Courts which were conferred ordinary original civil jurisdiction within certain limits under their Letters Patent. No other High Court established under the High Courts Act of 1861 or under the Government of India Act, 1915 or under the Government of India Act, 1935 was invested with powers of ordinary civil jurisdiction."

Accordingly, he was of the view that section 8 of the Sind Court's Act had conferred on the Sind Chief Court only a District Court jurisdiction, but, in reaching this conclusion, he also relied on the powers conferred on the Judicial Commissioner's Court when it was set up in 1906, and on a judgment of the Sind Chief Court in Elias Dadla Khan v. Mahfood Shah (A I R 1946 Sind 86).

19. It will be convenient to examine first the history of section 8 of the Sind Court's Act and I may point out that Sir Charles Napier had set up Military Courts in the Province after the conquest of Sind. These Courts were substituted in 1849 by civil and criminal Courts, which were required to dispense justice in the sprit of the Bombay Regulations. This discretion was given because Sind was a Province of the Presidency of Bombay. Now, because Sind was a Province of the Presidency of Bombay, the Letters Patent of the Bombay High Court becomes relevant, and I would only refer to the Letters Patent of 28th December 1865. Clause 16 of this letters Patent read

"And we do further ordain that the said High Court of Judicature at Bombay shall be a Court of appeal from the Civil Courts of the Presidency of Bombay . . . . ."

Similarly, clause 27 read

"And we do further ordain that the said High Court of Judicature at Bombay shall be a Court of appeal from the Criminal Courts of the Presidency of Bombay . . . . ."

These clauses may be contrasted with clauses 16 and 26 of the Letters

Patent of the Calcutta High Court. Under clause 16, the civil appellate jurisdiction of the Calcutta High Court was limited to "the civil Courts of the Bengal Division of the Presidency of Fort William," and, under clause 26, the criminal appellate jurisdiction of the Calcutta High Court was limited in the same manner. Clearly, therefore, the Bombay High Court must have entertained civil and criminal appeals from Sind.

20. However, by Bombay Act X11 of 1866, a Saddar Court was set up in Sind. Was this Court independent of the Bombay High Court? This is suggested by the word "Sadder", and, for example, appeals fi om the Saddar Court of the North Western Province had been to the Privy Council. Unfortunately, the statute creating this Sadder Court is not available with us, and the Advocate‑General now informs me that he is also not able to supply a copy. In these circumstances, I can only observe that, as Sind was a part of the Bombay Presidency, the Bombay High Court must have exercised its appellate jurisdiction over all Courts in Sind, including the Saddar Court, under clause 16 of its Letters Patent, until the position was altered by the High Courts Jurisdiction (Sind) Act, 1872, and even the terms of this statute support me in my conclusion that the Bombay High Court exercised appellate jurisdiction over our Saddar Court.

21. I now turn to the High Courts Jurisdiction (Sind) Act, 1872. It Leads

"An Act to remove doubts as to jurisdiction of the High Court of Bombay over the Province of Sind.

Whereas it is expedient to remove doubts which have arisen as to the jurisdiction of the High Court of Bombay over the Province of Sind; It is hereby enacted as follows :‑

(1) The High Court of Bombay has not, and shall be deemed never to have had, jurisdiction over the Province of Sind.

(2) Nothing herein contained shall be deemed to affect the Administrator General's Act, 1874."

It is not necessary to quote the other two sections of this statute, and it would be sufficient to state that section 3 saved grant of Probate and Letters of Administration by the Bombay High Court, whilst section 4 expressly preserved the criminal jurisdiction of the Bombay High Court "so far as regards European British subjects of her Majesty". As this jurisdiction was derived from the Letters Patent, it seems to me that the Sadder Court was under the control of the Bombay High Court, hence this Act of 1872.

22. Additionally, as Sind was a part of the Presidency of Bombay, the Governor of Bombay had extended to Sind several sections of the Bombay Civil Courts Act, 1869, and I would briefly refer to a few of the provisions thus extended to Sind. The Governor of Bombay in Council was entitled under section 3 to alter the limits of the District Courts of Sind and to create new districts. The Government of Bombay in Council appointed Joint Judges and Assistant Judges in Sind under sections 12 and 16 respectively. Similarly, the Governor of Bombay in Council could confer appellate jurisdiction on Assistant Judges and even invest them with the powers of a District Judge The control of the Governor of Bombay in Council was so extensive that. under section 40‑A, it extended to the transfer of Court Clerks from one civil Court to another. Further, whilst the District Judges had control and superintendence over the Courts subordinate to them, section 9 empowered District Judges to "refer to the (Bombay) High Court all such matters as appears to . . . . . require that the rules of that Court should be made thereon." Finally, section 10 of the Bombay Civil Courts Act read

"(10) The District Judge shall obey all writs, orders or processes issued to him by the High Court, and shall make such returns or reports thereto under his signature and the seal of the Courts as the exigencies of the case require."

I have referred to these provisions and to this historical background in order to show that, at a crucial stage of our history, when judicial institutions were in the process of being built up, they were controlled by the Bombay High Court, so that the traditions of our judicial system have followed the traditions of that Court, and the original jurisdiction of this Court is the legacy of these traditions.

23. But reverting to our history, Bombay Act XII of 1866 was amended in 1906 and the Court of the Judicial Commissioner. Sind, was set up by this amendment. As a result of this amendment, section 1 of Bombay Act XII of 1866 read a s follows :‑

"There shall be for the province a Court of the Judicial Commissioner of Sind (hereinafter called the Court of the Judicial Commissioner) which shall be the highest Court of appeal in civil and criminal matters in the said Province and which shall be the District Court and Court of Session of Karachi."

To difference between this provision, and the provision setting up the Courts of the Judicial Commissioners in Lahore, Allababad, etc., is obvious. These other Courts did not have any original civil or criminal jurisdiction, but the Court of the Judicial Commissioner, Sind, had this jurisdiction, both because its traditions were shaped by those of the Bombay High Court, and because, like Bombay and Rangoon, Karachi was a port. But the Court, thus set up, was not a High Court, and because bf the language in which its original jurisdiction was defined, it could be said that this original jurisdiction was a District and Sessions Court Jurisdiction Now, from this premise, Waheeduddin Ahmed, J., further concluded that the original civil jurisdiction of the Sind Chief Court was also a District Court Jurisdiction. This conclusion would be correct, only if the language f the two provisions was similar. There is some similarity between the provision relating to the Sessions jurisdiction of the Judicial Commissioner's Court and the Sessions jurisdiction of the Sind Chief Court. That, however, is not relevant, because this Sessions jurisdiction was completely abolished in 1956. But, as to the civil jurisdiction, section 8 of the Sind Court's Act is totally different from the provision by which original civil jurisdiction had been conferred on the Judicial Commissioner's Courts, and. bearing in mind also the express provisions of section 45 of the Sind Courts Act, 1926, I agree with Mr. Khalid Ishaq that this departure in the language of section 8 was intended to make a break with the past. As I explained earlier, the original civil jurisdiction of the Sind Chief Court in section 8 has been defined, so to say, in the language of section 2(4) of the Civil Procedure Code, and section 2(4) was enacted to cover the original civil jurisdiction both of District Courts and of the Presidency High Courts. Again, as pointed out by Thadani, J , in Elias Dadla Khan's case, Waheeduddin Ahmed, J , purported to follow, sections 21 and 22 of the Sind Court's Act make it clear that the Sind Chief Court was not al District Court under the Sind Courts Act.

24. Another circumstance relevant to the point under discussion is that section 122 of the Civil Procedure Code was amended by the Sind Court's (Supplementary) Act, 1926 The result of this amendment was that the Sind Chief Court was included among the Courts specified in section 122 of the said Code and was competent to make rules for itself under that section, and the Sind Chief Court framed rules for the exercise of its original civil jurisdiction. Now, if this jurisdiction had only been a District Court jurisdiction, there would have been no necessity for framing such rules, because the Sind Civil Court Rules were applicable to the District Courts. Similarly, the nature of the rules framed‑ would also not be irrelevant, and here I would again quote from the Registrar's preface to the rules of the Chief Court. The relevant passage reads :‑

"As the Chief Court of Sind, like the Bombay, Calcutta and Madras High Courts, possess both original civil and criminal and appellate civil and criminal jurisdictions, in making rules for the Chief Court, the practice and procedure of those Courts have been taken as a guide in the formation of the new rules for the Chief Court."

This passage, in my humble opinion, states the true intention of the Sind Courts Act, 1926 and I venture to think that Wahiduddin Ahmed, J., would not have taken the view which he did, if his attention had been drawn to the circumstances which I have discussed.

25. However, as I pointed out earlier, Wahiduddin Ahmed, J , had relied on a judgment of Thadani, J., in Elias Dadla Khan's case. But, Thadani, J., had reversed his view two years later and held in Muhammad Usman's case that the Sind Chief Court was a High Court. I agree with the latter view of Thadani, J., the more so, as his observations in Elias Dadla Khan's case were only obiter dicta.

26. Finally, as far as I can gather, the only other ground given by Wahiduddin Ahmed, J. for his view was that no other High Court "established under the Courts Act of 1861 or under the Government of India Act, 1915 or under the Government of India Act, 1935, was invested with powers of ordinary civil jurisdictions. I am unable to agree with this view for more reasons than one. Iii the first place, it is for the Legislature to decide whether a High Court should or should not have any particular type of jurisdiction, and as the jurisdictions conferred cannot but have reference to the needs of the Province concerned, the fact that the High Courts of Allahabad, Patna, Lahore and Nagpur did not have an ordinary civil jurisdiction cannot possibly support the inference drawn by Wahiduddin Ahmed, J., because the judicial traditions of Sind were different, as I have shown, from those of other Provinces, and because, unlike the cities of Allahabad, Patna, Lahore and Nagpur, Karachi was a Port. Secondly, the learned Judge erred in thinking that no other High Court had been conferred‑an ordinary civil jurisdiction. The Rangoon High Court set up up in 1923 had been conferred this jurisliction under its Letters Patent, and if any analogy has to be drawn between Karachi and the High Courts set up after 1862, the analogy should be between Karachi and Rangoon rather than between Karachi and inland cities like Lahore and Allahabad. This is for the very obvious reason that Karachi as a Port had a large volume of commercial litigation in this century, which inland citieQ, like Lahore, did not have, when High Courts were set up in what might be described as the land‑locked Provinces. Accordingly, with the utmost respect, I am finable to agree with the reasons given by Waheeduddin Ahmad, J., for his view that the original civil jurisdiction of the Karachi Bench of the West Pakistan High Court was a District Court jurisdiction.

27. The learned Advocate‑General also referred us to a judgment reported in Patricia Anne Patel v. Gerald Cowling Patel (P L D 1972 Kar. 444) and the question before the Full Bench, of which I was a member, was whether a divorce petition under the Divorce Act, 1869 had to be filed in the District Court, Karachi, or on the original side of this Court. Our unanimous view was that as the original civil jurisdiction of this Court was, at that time, limited to proceedings "wherein the subject‑matter exceeds Rs. 25,000 m amount or value", the divorce proceedings had been validly filed in the District Court of Karachi, because the divorce petition had been valued under Rs. 25,000. However, one of the learned Judges of this Full Bench went on to make very wide observations about the nature of the original civil jurisdiction of this Court, and I agree with the learned Advocate‑General that they support his submissions. Thus, for example, the learned Judge observed that the expression "the principal Court of original civil jurisdiction" had acquired a semantic significance, so that it could refer only to a District Court, therefore, the original civil jurisdiction of this High Court was a District Court jurisdiction. As I did not agree with this view, T clarified in my judgment that I was concurring only with the conclusion of the learned Judge that the divorce proceedings had been validly Instituted in the District Court. Similarly, Abdul Kadir Shaikh (as he then was), now the Chief Justice), had expressly stated that he only agreed with the conclusion that the divorce proceedings had been validly instituted. This means, in the first place, that the observations of the learned Judge, on which the learned Advocate‑General relied, were obiter dicta. Secondly, Mr. Khalid Ishaque submitted that the learned Judge had misread the definition of a District in section 2(4) of the Civil Procedure Code. With the utmost respect, I have to state that Mr. Khalid Ishaq's submission is correct, because the learned Judge ignored that part of the definition which relates to the High Courts. Thirdly, in his pre‑occupation with semantics, the learned Judge ignored the history of the evolution of the High Court in this Province; accordingly I am unable to agree with his view.

28. Finally, I would again observe that the view taken in the Firdous Trading Corporation's case and in the divorce case on which the learned Advocate‑General relied is inconsistent with the observations of the Supreme Court in Mumtaz Khan's case. Further, as submitted both by Mr. Khalid Ishaq and by Mr. Shareefuddin Pirzada, this view is also inconsistent with the judgment of a Full Bench in Asad Ali and 9 others v. The Settlement and Claims Commissioner, Karachi and another (P L D 1974 Kar, 345). Although, this is a judg ment of a Full Bench of five Judges. I have avoided referring to it, because it happens to be my own judgment. Since, it is necessary to refer to it, I would only say that after examining the history of this Court, we followed the judgments of their Lordships and held that the original civil jurisdiction of this Court was similar to that of the Presidency High Courts. I agree with Mr. Khalid Ishaque and Mr. Shareefuddin Pirzada that both these judgments are fatal to the contention that the original civil jurisdiction of this Court is a District Court jurisdiction, whatever this expression may mean.

29. The learned Advocate‑General's next submission was that even if this Court war a Court within the meaning of section 3 of the Court Fees Act, court‑fees had been levied under section 6 of this Act before the Sind Chief Court became a Court within the meaning of section 3; there fore, the further submission was that as soon as the Sind Chief Court became a Court within the meaning of section 3 by the amendment of that section in 1949, the court fees, which had, prior to this amendment, been collected under section 6, became due and payable under section 3.

30. Mr. Kbalid Ishaq's reply to this submission was that even according to the judgments relied upon by Wahiduddin Ahmad, J., in the Firdous Trading Corporation's case, section 3 of the Court Fees Act applied to suits and not to appeals. The learned Advocate‑General sought to meet this point by contending that an appeal was only a continuation of a suit. It is true that an appeal may, in certain circumstances, be treated as a continuation of a suit, but as the Court Fees Act itself makes separate provisions for suits and for appeals, the submission is contrary to the plain language of sections 3 and 4 of this Act, and I cannot accept it even though it is supported by the Firdous Trading Corporation's case. Additionally, as the object of the amendment of section 3 by our Legislature was to extend to the Sind Chief Court the benefit of this section, to accept the submission would be to flout the intention of the Legislature.

31. The learned Advocate‑General then referred us to a passage in the Firdous Trading Corporation's case, in which, with reference to section 3, Wahiduddin Ahmed, J., observed at page 572

"Now this section only says that the fees payable for the time being to the clerks and officers of the Courts, which are High Court etc, shall be collected in the manner hereinafter appearing. Thus, if in the Chief Court of Sind, court‑fee was payable for the time being in original suits and in appeals against the judgment in such suits that practice add position was "preserved on the language of section 3 of Court Fees Act. This is quite clear from the terms of this provision of law."

With respect, I am not able to agree with these observations. Section 6 applied to the Sind Chief Court only as long as it was not a High Court under section 3 oft the Act, and the result of the amendment of section 3 in 1949 was that section 6 ceased to apply to the Sind Chief Court; therefore, as, the application of section 6 to the Sind Chief Court became illegal, I am not able to understand how court‑fees formerly payable under section 6 became due and payable under that very section on account of which the application of section 6 to the Sind Chief Court had become illegal. I am aware that section 3 uses the word "payable", but this refers to a liability for court‑fees under some provision of law whether it be a statute or the rules of a High Court empowered to levy court‑fees under its rules.

32. The learned Advocate‑General then referred us to judgments reported in C. Abdul Hakim Sahib and another v. Chattanda lyer and others (A I R 1931 Mad. 457). H. Mahomed Ishack Sahib v. Mahomed Moideen and another (I L R 45 Mad. 849) and Krishna Mohan Sinha v. Raghunandan Pandey (A I R 1925 Pat. 392) because Waheeduddin Ahmed, J., had referred to these judgments before reaching the conclusion which I have just quoted. I have examined these judgments and, in my humble opinion, not only do they not support the view of Waheeduddin Ahmad, J., but they are also inconsistent with it. Thus, in Mahomed Ishack Sahib's case, Coutta Trotter, J., observed at page 852 "it has always been maintained that the power under which fees are levied on the Original Side of the High Court was derived from the general powers to issue general rules for regulating the practice and procedure of the Courts. It is argued, and I think it is rightly argued, that the power to make regulations for procedure necessarily includes imposition of fees and the collection of them, and the Court can collect the fees only through its proper officers. If that be right, then the fee leviable on an appeal is the fee payable for the time being to the officers of the High Court by virtue of the High Courts Charter Act directly."

Ten years later, another learned Judge of the Madras High Court took the same view in C. Abdul Hakim Saheb's case and observed: " . . . section 3 in my opinion is clearly an instance of bad drafting. So far as its language goes, it does not prescribe a court‑fee; it purports on the contrary to deal only of the mode of collecting it". Then, as to the Patna case, whilst it turns on the construction of section 5 of the Court Fees Act, which has no relevance to the points for determination before us, Mullick, J., observed at page 397 with reference to section 3

"The section is not a charging section and merely prescribes the mode of collection. The fees leviable on the Original Side of a Chartered High Court and in the Presidency Small Cause Courts are prescribed by enactments other than Court Fees Act."

Except for the second clause of the section, which I will presently consider, 1. respectfully agree with the view taken in these three judgments that the word "payable" in section 3 has reference to court‑fees payable under some provision of law other than the Court Fees Act; therefore, in my humble opinion, none of these judgments lend any support to the view of Waheedud din Ahmad, J., in the case cited.

33. Finally, the learned Advocate‑General pointed out that although section 3 had been amended twenty‑six years ago, litigants had continued to pay court‑fees in this Court under section 6 of the Court Fees Act; therefore he invoked the maxim optima legum interpres est consuetudo and referred us to the relevant passage in Craise on Statute Law. The learned author observes at page 150 (Sixth Edition)

"Light may be thrown upon the meaning of an obscure enactment by taking into consideration the construction which for a long period of time has been put upon it. "Optima legum interpres est consuetudo," says Coke. We did not think," said the Court in Cox v. Leigh, "that the words of the statute (8 Annex, clause 14, section 1) are sufficiently wide to justify us in putting a construction upon the statute different from that which has been entertained for 160 years." I do not think this passage has any relevance to the questions for determina tion before us, because we are not construing an ancient statute, nor can I see any ambiguity in the provisions of sections 3 and 4 of the Court Fees Act ; therefore I may refer here to a passage from the speech of Lord Watson in Clyde Navigation Trustees v. Laind ((1883) 8 App. Cas. 658)

"I have only to add that in my opinion such usage as has in this case been termed 'contempotanea expositio' is of no value whatever in construing a British statute of the year 1858. When there are ambiguous expressions in an Act passed one or two centuries ago, it may be legitimate to refer to the construction put upon these expressions throughout a long course of years by the unanimous consent of all parties interested as evidencing what must presumably have been the intention of the Legislature at that remote period. But I feel bound to construe a recent statute according to "its own terms when these are brought into controversy, and not according to the views which interested parties may have hitherto taken."

I respectfully agree with these observations, and, in my humble opinion, the maxim optima legum interpres est consuetudo cannot be invoked, except in the very stringent conditions laid down by Lord Watson; therefore the 3 submission of the Advocate‑General fails, both because there is no ambiguity about section 3 of the Court Fees Act after its amendment in 1949, and also because this section, after its amendment, cannot possibly be described as an ancient statute.

34. No other argument was advanced by the learned Advocate‑General; accordingly I hold that the Firdous Trading Corporation's case was not correctly decided, and I would not follow it. Therefore, the only question is, whether the appeals in these references fall within the said exception.

The said exception applies to appeals against judgments "passed in the exercise of the ordinary original civil jurisdiction" of a High Court. This is al term wider than appeals against judgments in suits filed on the ordinary g original civil side of a Court, and, as all the appeals referred to us are against judgments passed in the exercise of this Court's ordinary original civil jurisdiction, I reject the office reference, and hold that court‑fees under the Court Fees Act are not payable on these appeals.

35. 1 now turn to the question of court‑fees on suits in this Court, and, as I pointed out, they fall under section 3 of the Court Fees Act, and the word "payable" in the first clause of this section means payable under some provision of law other than the Court Fees Act. We have however, not been referred to any such other law. But the learned Advocate‑General submitted that the second clause of the section had been amended, and this amendment manifested the intention of the Legislature that the Court Fees Act was applicable to the type of suits mentioned in the second clause of the section. Mr. S . Shareefuddin Pirzada did not even attempt to advance a submission to the contrary, and, in my humble opinion, the submission of the Advocate‑General is correct. I am aware that this clause as well . as the third clause of the section, which was deleted in 1941, use the expression "chargeable", and, although the expression is ambiguous, clause 2 will become redundant if we do not accept the construction placed on it by the learned Advocate‑General. Additionally, this was the view of a Full Bench of the Punjab High Court in Ganpat v. Premsingh (151C122) with reference to the third clause, and the reasoning in the judgment is fully applicable to the second clause. Again, in Abdul Hakeem's case, to which I referred earlier, Courts Trotter, J., observed, with reference to clause 2 : "but by implication it prescribes a court‑fee in certain cases. That is the effect of clause 2 . . . . " I respectfully agree with this view therefore I hold that the Court Fees Act is not applicable to the following three unnumbered suits.

(1) Suit No. nil/74

M/s. Hall M. Zakeria & Co. v. Pakistan.

(2) Suit No. nil/75

Hamidul Haq Ch. v. National and Grindlays Bank and another.

(3) Suit No. nil/75

Burney Estates and others v. Mst. Gul Bibi.

Accordingly, the office objection in these suits is rejected. But the office objection is correct with regard to Suit No. 312/74, because that is a suit for administration which falls under the second clause of section 3.

36. I am aware that a question has been referred to us in Suit No. 312/74, because of the conflict of authority between the judgment in the Firdous Trading Corporation's case and the judgment in W. P. I. D. C. v. Fateh Textile Mills Ltd. (P L D 1964 Kar. 11). My answer to the question is that the view taken in the Firdous Trading Corporation's case is not correct, and I respectfully agree with the view of Kharal, J. in the W. P. I. D. C's case that this Court is a High Court. But this does not help the plaintiff in his suit, because it is a suit for administration, and the Court Fees Act is applicable to such suits even when filed in the High Court.

The office references are disposed of accordingly, and I thank the Advocate‑General and Mr. Khalid M. Ishaq for their assistance.

JAMALUDDIN H. AHMAD, J.‑‑I agree. s. A. H.

Reference answered accordingly.