NABI BUX KHAN BHURGARI Versus N. B. P.

ORDER

The decree passed in First Class Suit No. 29 of 1975 by the learned Senior Civil Judge, Badin was impugned in this First Appeal, which was allowed by short order dated 22‑3‑1987 and the suit was remanded to the trial Court for re‑trial. The short order was followed by detailed reasons, the concluding part whereof reads as follows:

"I accordingly allow this appeal, set aside the impugned judgment and decree and direct, that the case be sent back to the trial Court for retrial in accordance with law. The cost of this appeal will follow the cost of the suit. The appeal was disposed of by a short order dated 22‑3‑1987. The above are the reasons in support of the said order."

2. By another order dated 4‑10‑1987 passed on CMA No. 599 of 1987, it was ordered by consent that the Suit be recalled from the Court of Senior Civil Judge, Badin and be sent for retrial to the Special Banking Court at Karachi with a direction to dispose of the suit within six months for the reasons stated therein.

3. Now by' the present application under section 13 of the Court Fees Act, the Advocate for the appellant prays for grant to the appellant a certificate authorising the appellant to receive back from the Collector the full amount of court‑fees paid on the memorandum of the appeal. It may be noted that on the appeal court‑fees of Rs.4,028 was paid.

4. Section 13 of the Court Fees Act provides that if a suit is remanded in appeal, on any of the grounds mentioned under Order A XLI, rule 23 of the First Schedule of the Code of Civil Procedure, for a second decision by the lower Court, the Appellate court shall grant to the appellant a certificate, authorizing him to receive back from the Collector the full amount of the court‑fees paid on the memorandum of appeal. No counter‑affidavit has been filed to this application. However, section 13 of the Court Fees Act provides that the remand in appeal should be on any of the grounds mentioned in Order XLI, rule 23, C. P.C. and in rule 23 the ‑remand can be made in appeal if the suit was disposed of by the trial Court upon the preliminary point and the decree is reversed in appeal. There is no doubt that the decree was reversed in appeal and the case has been remanded but the further question for consideration is whether the suit was disposed of by the trial Court upon the preliminary point.

4. The words 'preliminary point' used in Order XLI, rules 23, C.P.C. was considered by a Full Bench of Madras High Court in the case of Malayath Veetil Raman Nayar and others v. C. Krishnan Nambudripad and another A I R 1922 Mad. 505), and it was observed by Schwabe, C.J. as follows:‑

"In my judgment the only meaning that can be properly given to these words in this context is any point the decision of which avoids the necessity for the full hearing of the suit. There are many instances of such points such as, that a suit is barred by limitation; that the Court has no jurisdiction, e.g., under the Estates Land Act; that on the plaintiff's evidence there is no case for the defendant to answer; in a liable suit, that there is no proof of publication. On all these cases, if the decision is held to be wrong, the case remains to be decided on what is sometimes referred to as the merits of the case."

COUTT TROTTER, J.‑‑ In the same case agreeing with the Chief Justice observed: "that this is a preliminary point, which I take to mean a point which 'when decided in the way in which it is in fact decided determines the result of the suit and discharges the Court from the duty of trying all or some of the other issues in the case.

5. BHIDE, J.‑‑ In the case of Khuda Bakhsh and others v. Ata Mohammad (Major) and others (AIR (29) 1942 Lahore 135) referred to an earlier Full Bench decision of Punjab Chief Court wherein it was held that a preliminary point does not necessarily mean a point collateral to the merits of the case but would include any point whether of fact or law, the decision on which renders the decision of other issues arising in the case unnecessary.

6. The decisions of Madras High Court and Lahore High Court cited above were referred to with approval in the judgment of the Supreme Court of Pakistan in the case of Hoshang and others v. Dr. Eddie P. Bharucha and others (PLD 1973 S.C. 206), which is brought to my notice by Mr. Abdul Rahim Kazi, the learned Additional Advocate‑ General.

7. Examining the present case in the light of the above rulings I find that the judgment impugned in this appeal is based on after deciding the issues though it is ex parte as after filing the written statement the defendant failed to appear on the date of trial and failed to discharge the burden of the issues raised by him. The suit was not decided on any preliminary point. I am, therefore, of the view that the provision of section 13 of the Court Fees Act cannot be pressed into service.

8. Mr. Jhamat Jethanand however, submitted that under section 151, C.P.C the Court has powers Ex debito justititae to order refund of court‑fee and he referred to a decision of Division Bench of this Court in Syed Akhtar Hussain v. Muhammad Tahir Alam and another (1981 CLC 1323), and two decisions from Indian jurisdiction namely, (1) Jadavji Mansang v. Indarji Parshottam (AIR 1952 Kutch 80), (2) Sohan Singh v. The Oriental Bank of Commerce (AIR 1956 Punjab 215).

9. In the case of Division Bench of this Court cited by Mr. Jhamat Jethanand, the appellant had inadvertently paid excess court‑fee on appeal as the appeal was from an order dismissing the applications one for ad interim injunction and the other for appointment of receiver and had inadvertently paid court‑fee of Rs.2,105 instead of Rs.5. The Division Bench following the earlier decision in the case of Messrs British India Engineering Works, Karachi v. Messrs Globe Navigation Ltd. and 2 others (PLD 1978 KAR 375), wherein it was held that "where the appellant had paid excess court‑fee inadvertently in such circumstances the Court can in the exercise of its inherent jurisdiction in the interest of justice grant a declaration" gave a declaration in the case before them.

10. In the case of Kutch High Court it was held that the Court has got inherent power to grant refund of court‑fees apart from the provisions of sections 13, 14 and 15 of the Court Fees Act. In the case of Punjab it was held that the refund of court‑fee could be ordered Ex debito justitiae also as for instance, where there was no proper trial, in that, documents which should have been on the record were not taken and witnesses who should have been examined were not examined.

11. There is no doubt that the Court even in the cases which are not covered by the provisions of section 13 of the Court Fees Act can grant declaration in the interest of justice, in the exercise of C inherent powers in terms of Messrs British India Engineering Works, Karachi v. Messrs Globe Navigation Ltd. and 2 others (Supra) but such inherent powers can be exercised in the interest of justice only. In the case of Syed Akhtar Hussain v. Muhammad Tahir Alam and another (ibid) they were so exercised because the appellant had inadvertently paid Rs.2,105 instead of Rs.5. In Kutch case these powers were exercised in the interest of justice and in the circumstances of that case. In Punjab case these powers were exercised because the case was remanded as rule 23‑A of Order XLI, CPC which has been added there was considered at par with rule 23 of Order XLI, CPC. With utmost respect I do not agree with this view. Further, rule 23‑A has not been added in CPC so far as the Province of Sind is concerned. However, the reason which weighed with the Court was that the necessity of remanding the case arose for want of proper trial. In the case under consideration the circumstances dot not at all warrant exercise of inherent powers as neither any court, fee was paid in excess inadvertently nor the case was remanded for D want of proper trial. The case was remanded for retrial and in doing so tile main consideration was that both the parties might have opportunity to produce their evidence before the trial Court to enable( the trial Court to give correct findings.

I, therefore, dismiss this application.

A.A./N‑63/K Application dismissed.