NISARALLY MAHER Versus BOARD OF REVENUE, GOVERNMENT OF SIND

1. SAEEDUZZAMAN SIDDIQUI, J.‑‑The petitioner who practising counsel of this Court has filed the above petition with the prayer that the letter addressed by respondent on 20th October, 1985 to Registrar High Court of Sind, District and Sessions Judges, All Deputy Commissioners, Inspector General Registration, Hyderabad, Inspector of Stamps, Board of Revenue Sind, Karachi and Collector of Customs, Karachi, clarifying that court‑fee is recoverable on applications, Vakalatnama, Mukhtarnama in suits of which valuation does not exceed Rs.25,000 etc. as without lawful authority and of no legal effect. A preliminary objection to the maintainability of the petition is raised by the learned A . A .‑G . on the ground that petitioner is not an aggrieved person, within the meaning of Article 199 of the Constitution. The petitioner in paragraph 12 of the petition has specifically stated that in spite of amendment brought in the Court Fees Act by Sind Ordinance XIII of 1978 the court‑fee on applications, Vakalatnamas, etc. continued to be realised by the Subordinate Courts in respect of matters in which valuation does not exceed Rs.25,000 on the basis of above instructions issued by respondent No.l on 20th October, 1985. He has also asserted that not only in respect of cases in which he is representing his clients but in respect of his personal cases which he has filed in the Civil Courts, such court‑fee has been demanded from him and he has paid the same. No counter affidavit has been filed by the respondent in the case to rebut these allegations and we are accordingly of the view that the petitioner is an aggrieved person and is entitled to maintain the petition. an merits the learned A.A.‑G. who appears for respondents contended that exemption granted in respect of payment of court‑fee under Ordinance XIII of 1978 is only applicable to the plaints in the suits of which value does not exceed Rs.25,000 and which. is charged under Schedule I of the Court Fees Act and as such this exemption is not extended to applications and vakalatnama on which court‑fee is recovered at fixed rate in accordance with the rate prescribed under Schedule l I of the Court Fees Act, 1970. Learned A . A . G . in support of his argument referred to a similar legislation of Punjab Government in respect of exemption of court‑fee. It is also contended by learned A . A . G . that as an application or Vakalatnama filed in a case is not capable of being valued, therefore, the exemption under Ordinance XIII of 1978 could not be extended to them. We are not impressed by the argument of the learned A . A . G . Ordinance XII I of 1978 was promulgated in the Province of Sind on 2nd August, 1978 and by this Ordinance Provincial Government amended Court Fees Act, 1870 in its applications to province of Sind. Section 2 of the Ordinance which abolished court‑fee in certain cases read as follows:‑

2. "Notwithstanding anything contained in the Court Fees Act, 1870 (Act VII of 1870). no court‑fee shall be payable in a criminal case, and a case of civil nature the value of which does not exceed twenty‑five thousand rupees."

3. A reading of above provision introduced in the Court Fees Act of 1870 will show that notwithstanding the provisions of the Court Fees Act the court=fee has been abolished totally in respect of criminal cases and the cases of Civil nature, value whereof does not A exceed Rs.25,000. It is not disputed by the learned A.A.‑G. that the Schedules I and II appended to Court Fees Act, 1870 are part of the Act and the court‑fee on applications, Vakalatnama etc are charged , in accordance with the rate prescribed in the Second Schedule to the

4. Act. There is nothing in the language of section 2 of Ordinance XIII of 1978 to infer that legislature while abolishing court‑fee in respect of civil cases of which value did not exceed Rs.25,000 they only abolished court‑fee payable under Schedule I of the Act on memorandum of plaint and not the court fee payable on application, vakalatnama, and other documents in the suit under schedule 11. There is neither any such limitation or qualification in the language of Ordinance XIIII of 1978 nor there is any justification to interpret the same in the. manner suggested by learned A.A.‑G. The expression "cases of civil nature, value of which does not exceed Rs.25,000" admits of no such exceptions as pointed out by the learned A.A.‑G. The words are plain and in their ambit they include the plaint, application, vakalatnama or any other document on which court‑fee is payable

5. We.are, therefore, in no doubt that by abolishing court‑fee in respect of cases which are of civil nature and of which valuation does not exceed Rs.25,000 the legislature intended that no court‑fee in respect of such cases whether on the memorandum of the plaint or on applications or any other documents filed in the course of such proceeding should be recovered from the litigants. T`e learned A . A . ‑G . also referred to a similar legislation of Punjab .overnment granting exemption in respect of suits involving value upto Rs.25,000. The legislation of Punjab Government relied on by the learned A.A.‑G.1 is not by way of amendment of Court FF‑rs Act but it is a notification issued by the Provincial Government in exercise of its powers under section 35 of Court Fees Act. The notification relied on by the learned A . A . ‑G . reads as follows:‑‑

6. "No. 5487‑78/1809‑St.I.‑‑In exercise of the powers conferred by Section 35 of the Court Fees Act, 1870. the Governor of the Punjab is pleased to remit with efffect from the 1st August 1978, court‑fee payable on plaints 'in civil suits under Article 1 of Schedule I when the amount or value of the subject‑matter does not exceed twenty‑five thousand rupees and on complaints in criminal cases under Article 1 (b) of Schedule II."

7. The above notification issued by the Governor of Punjab is not only differently worded but is issued under the Court Fees Act which is not the case in Sind where the Court Fees Act itself has been amended. We accordingly allow the petition and declare that the directive issued by respondent No.l on 2nd October, 1985 is without B lawful authority and of no legal effect. There will, however, be no order as to costs.

8. A.A. /N‑168/x. ??????????? , Petition allowed.