AKRAM KHAN Versus STATE

1. SHAIFUR RAHMAN, J .‑‑Leave to appeal was granted to the plaintiff /appellant to examine whether the law laid down by the , Peshawar High Court in Shahzullah v. Shahabuddin P L D 1979 Pesh. A 33, was not attracted to the case and the impugned order could not be passed by the trial Court under Order XVII, Rule 3, C.P.C thereby dismissing the suit.

2. The appellant claimed that he was in possession of land measuring 21 Kanals 9 Marlas in Mahal Gharbi, Had Bast No.188, Tehsil and District Peshawar. It was at one time evacuee land. The appellant was the tenant thereof and had put on it 9 Kothas of which he was in occupation. This land had been allotted to certain displaced persons from whom the respondent M/s. Karimi Industries Ltd. Peshawar had purchased the same. Finally this land along with others in the adjoining area was acquired by the Executive Engineer through the Collector Acquisition and an award was given with regard to its compensation in favour of respondent No.1. The appellant's case was that he being in possession and entitled to compensation for the superstructure, was not liable to be evicted there from without being offered the compensation for it. The suit was contested and the following issues were framed on the pleadings of the parties:‑---

3. "(1) Whether the plaintiff has a cause of action?

(2) Whether the suit is incompetent in its present form, if so, its effect?

(3) Whether the civil Court has jurisdiction to entertain the suit?

(4) Whether the suit is within time?

(5) Whether the plaintiff is estopped by his conduct to bring the present suit?

(6) Whether the plaintiff has made any improvement in the suit property, if so, to what extent and with what effect?

(7) Whether any cost of the kothas in suit has been assessed and paid by the Acquisition authorities?

(8) Whether the plaintiff was entitled to receive any compensation as prayed for, if so, from whom?

(9) Relief."

4. The plaintiff was, it appears, given a number of opportunities to produce evidence but he did not comply with the orders and ultimately on 8‑12‑1979 the trial Court passed the following order:‑--

5. Plaintiff present. Defendant alongwith his counsel present.

6. In spite of the fact that numerous times opportunities have been afforded to the plaintiff for production of his evidence, but he failed to deposit the process fee, form summons and expenses of the witnesses to be summoned through Court as a consequence of which the evidence is absent. By invoking the provision of Order XXXVII, Rule 3, C.P.C., the evidence of the plaintiff is hereby closed. The suit of the plaintiff fails for Want of proof and is hereby dismissed with costs.

7. File be consigned to record‑"

8. An appeal was filed against the dismissal of the suit and it was specifically taken up as a ground (No.3) that there was no need of any process fee in view of the latest judgment of the Peshawar High Court in the case of Shahzullah v. Shahabuddin (P L D 1979 Pesh. 33). It was also stated that Office of the Senior Civil Judge had made a wrong report with regard to deposit of diet money of the Patwari which in fact already stood deposited: The appellate Court did not attend to either of these grounds and dismissed the appeal observing as follows:‑

9. "(i) From the perusal of the record, it appears, that the trial Court had granted sufficient reasonable time to the plaintiff to produce his evidence but he failed to do so. He was therefore negligent to peruse his case and has caused unnecessary delay in the disposal of the case. The material available on the record would show, that he only claimed himself to be the tenant of the disputed property and claimed compensation for the improvements.

(ii) The trial Court, therefore, had no alternative but to invoke the aforesaid provisions of the C.P.C. in order to justify the decision of the suit forthwith, after having considered all the material available before him."

10. A Revision was filed before the High Court and in ground No.4,.it was specifically mentioned that;-- "the process fee for the Patwari was already deposited on 26‑10‑1977 (as Khuraka Patwari) and entered at serial No.116 dated 26‑10‑1977 in the Nazar's register. Moreover, in view of the latest judgment of this High Court reported in P L D 1979 Peshawar 33, the plaintiff was not bound to pay the process fee, for calling the witnesses‑"

11. The Revision was dismissed by the High Court without adverting to this ground, by observing as follows:‑

12. "(i) From all these facts, it will be seen that large number of adjournments were granted to the plaintiff to produce his evidence but he made defaults in complying with these orders. The conduct of the plaintiff had all along been such that to my mind, the trial Judge was left with no other alternative but to proceed under Order XXXVII, Rule 3, Civil Procedure Code.

(ii) There is no doubt that the Patwari was no official witness who had to be summoned by the Court but I am of the view that his non‑appearance on the date fixed could not prevent the trial Court from passing the order it did. It may be pointed out that the dispute between the parties related to the amount of compensation regarding super structure on the suit land and the Patwari's evidence, in the circumstances, was of no consequence.

(iii) There is no doubt that the plaintiff was present in Court on the aforesaid date but there is absolutely nothing on the record to suggest that he expressed his willingness to be examined as witness by the Court on that date. In such a state of affairs, it cannot possibly be said that the Court in passing the order in question acted improperly.

(iv) Even if it be assumed for the sake of argument that the plaintiff is entitled to compensation for Abadi from defendant No.1, he cannot possibly prevent defendants 2 and 3 from taking possession of the property.

(v) Assuming, however, that the impugned decision based on the provision of Order XXXVII, Rule 3, Civil Procedure Code, is not sustainable in law, I would nevertheless decline to interfere in revision because of the fact that ends of justice demanded the dismissal of the suit which even otherwise was not competent. Since substantial justice has been done, this Court would be reluctant to interfere in revision."

13. Mr. Sibtul Hasan Advocate, the learned counsel for the appellant contended that none of the Courts has examined by reference to the decision of the same Court given in the case of Shahzullah, the jurisdictional aspect of the impugned order of the trial Court. Instead, the decision of the High Court has been considerably influenced by issues which were not decided by the trial Court or the appellate Court.

14. Mr. Raza A. Khan, the learned Deputy Attorney‑General representing the respondents has contended that the process fee chargeable for summoning the witnesses is not in the nature of court‑fee and the decision in the case of Shahzullah does not lay, according to him, the correct law on the subject.

15. The order passed by the trial Court which was impugned before the appellate and the revisional authority was one which was expressly passed by reference to Order XVII, Rule 3 of the Code of Civil Procedure. It did not deal with the merits of the case. In the Grounds of Appeal and in the Grounds of Revision a specific reference was made to the decision of the same High Court in the case of Shahzullah (P L D 1979 Pesh. 33), but surprisingly neither the appellate Court nor the revisionaI Court noticed it or the law laid down therein. There were indeed issues on the question of jurisdiction and form of the suit framed and these could be treated as preliminary objections and dealt with as questions of law without inviting evidence but that was not done. Therefore, the scope of examination in the Appeal and Revision should have ordinarily been restricted to the questions decided by the trial Court and under challenge in appeal or revision.

16. The distinguishing language and feature of North‑West Frontier Province Ordinance No.XIV of 1978, the relevant being sections 2 and 3, provide as follows.‑‑

2. Abolition of court‑fee in certain cases. Notwithstanding anything contains in the Court Fees Act, 1870 (VII of 1870), or any other law for the time being in force, or any rules or orders, no court‑fee shall be payable in, or chargeable by, any Court in respect of‑‑

(a) any criminal case; and

(b) any case of civil nature the value of the subject‑matter whereof, or relief claimed

3. Refund of court‑fee. ‑‑If any court‑fee has been paid after 31st July, 1978, by any person in respect of any case specified in section 2, the same shall, on application by any such person to the Deputy Commissioner of the District concerned be refunded to him.,.

17. It is clear, therefore, from the language of section 3 that court‑fee charged after 31st July, 1978 were liable to be refunded. In this case the proceedings were instituted in 1975 and the order directing the payment of process fee which was under challenge was dated 10‑9‑1979. It was with regard ‑ to the process fee that the order of deposit was made and the non‑deposit led to the consequences under examination. Section 2 of this Ordinance makes distinction between the court‑fee payable in or chargeable by any duty. The payment of court‑fee and the charging provision with regard to it is to be found in the concluding portion of section 4 of the Court Fees Act which requires "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". By section 20 which is in Chapter IV, with heading 'Process Fees' the High Courts have been empowered inter alia, to provide by rules the "fees chargeable for serving and executing processes issued by such Court". The High Court has framed rules with regard to such fee and these are contained in Volume IV, Chapter 5‑B of the Rules of High Court Rules and Orders. The fee is realized in the form of court‑fee stamps. In view of these legal provisions, the law laid down by the High Court in Shahzullah's case is correct and accordingly the appellant as plaintiff was not required to furnish process fee nor he could be penalized under Order XVII, Rule 3, C.P.C. for not doing so. We accept this appeal, set aside the order passed by the aria Court under Order XVII, Rule 3, C.P.C. and the orders of the appellate authority and that of the revisional authority, protecting it and remand the proceedings to trial Court for proceeding in accordance with law. There is no order as to costs.

18. M.I./A‑267/8 Appeal accepted.