ASLAM INDUSTRIES LTD., KHANPUR Versus PAKISTAN EDIBLE CORPORATION OF PAKISTAN

RUSTAM S. SIDHWA, J.‑‑‑ This is an appeal by M/s. Aslam Industries Ltd. against the order of a learned Single Judge of the Lahore High Court, Bahawalpnr Bench, dated 18‑9‑1982, dismissing its revision petition.

2. The brief facts of the case are that M/s. Aslam Industries Ltd. appellants brought the suit with the averments that Pakistan Edible Corporation of Pakistan respondent No.l, through the firm Abdul Razzaq Zulfiqar Ali, respondent No.9, a broker, entered into a contract No.328 C.S. to purchase 25000 bags of oil‑seeds weighing 31,250 maunds at a rate of Rs.47 per maund. On orders of respondent No.l, the appellant supplied 20000 bags of oil seeds to various respondents. Respondent No. 1 issued 20 cheques of Rs.52,857, each in favour of the appellant in the name of Muslim Commercial Bank Ltd., Multan, out of which only eight cheques were honoured and the rest dishonoured. Keeping in view the terms and conditions of the contract, respondent No.l owed Rs. 7,55,750 to the plaintiff.

Similarly, respondent No. 1 entered into another contract No.344, dated 7‑3‑1975 to purchase 16000 bags of oil‑seeds weighing 20000 maunds at a rate of Rs.50, per maund. The appellant at different times agreed to supply to different oil mills oil‑seeds on the order of respondent No.l. The respondents did not comply with the contract. They did not lift the goods, The oil‑seeds dried up. The appellant kept on informing the respondents, who did not bother to carry the goods under various pretexts. Ultimately the appellant had to sell the goods at a much lessen rate. The quantity also reduced in size and weight. The respondents under this contract were liable to pay Rs.2,40,000, to the appellant.

3. It was finally prayed that a decree for Rs.9,95,750 be passed against the respondents in favour of the appellant.

4. The respondents contested the suit. They raised preliminary objections in their written statement. They submitted that the ,Court at Khanpur had no jurisdiction to try the suit. The suit was bad for non‑joinder and misjoinder of parties. It was also bad for misjoinder of causes of action. The valuation for the purposes of court‑fee was incorrect and the plaint was deficient in court‑fees. On facts they alleged that the goods supplied were not as per specification and could not stand the test in the laboratory and hence the payment was stopped. They prayed for 'the dismissal of the suit.

5. The following preliminary issues were framed:‑‑‑

(1) Whether the Court has got no jurisdiction to entertain the suit?

(2) Whether the suit is bad on account of misjoinder of parties?

(3) Whether the suit is bad on account of non‑joinder of necessary parties?

(4) Whether the suit is bad due to misjoinder of causes of action?

(5) Whether the suit is incorrectly valued and the plaint is understamped?

6. The learned Civil Judge decided issue No.l, in the negative. He decided Issues Nos.2 to 4 against the respondents. In respect of issue No.5 the Civil Judge held that the suit was a multifarious one under section 17 of the Court Fees Act and that on each of the two relief s court‑fee of Rs. 15,000 was payable and since the appellant had only paid court‑fee on the plaint of Rs.15,000, a further sum of Rs.15,000, was due and payable, the deficiency of which should be made up by 22‑7‑1982. Being aggrieved by the said order of the Civil Judge; Liaqatpur, dated 14‑6‑1982, the appellant preferred a revision petition before the Lahore High Court, Bahawalpur Bench, which was dismissed in limine on 18‑9‑1982.

7. Being aggrieved by the order of the High Court dated 18‑9‑1982, the appellant petitioned this Court for leave to appeal, which leave was granted to consider the question whether the provision of section 17 of the Court Fees A Act, 1870, was subject to the provisions of the proviso to Article 1 of Schedule I of the Court Fees Act, 1870, and therefore whether the demand of the additional court‑fee of Rs. 15,000, was unwarranted.

8. On behalf of the appellant it is submitted that without challenging in any way the fact that the suit in instance filed by the appellant was of a multifarious nature and that the aggregate amount of court‑fees to which the plaint in suit embraced separately the two subjects did work out to Rs.30,000, but in view of the proviso to Article 1 of Schedule I of the Court Fees Act, 1870, as substituted by section 8 of the Punjab Finance Act, 1973, the appellant is only liable to pay the maximum court‑fee provided therein which is Rs.15,000, and no further. In this connection the learned counsel for the appellant refers to Raghobir Singh v. Dharam Kuar (ILR 3 All: 108), Kashi Prosad Singh v. Secretary of State for India‑in‑Council (ILR 29 Cal. 140) and C.P. Syndicate Ltd. v.Sardar Naurangsingh (AIR 1950 Nag.189).

9. Nobody has entered appearance on behalf of the respondents. However, we requested Ch. Muhammad Farooq, Deputy Attorney‑General, to enter appearance and assist this Court. He has appeared. The learned Deputy Attorney‑General submits that in cases covered by section 17 of the Court Fees Act, 1870, the proviso to Article 1 of Schedule I of the said Act does‑not apply. In this connection he relies on Arbab Ghulam Ali Khan v. Arbab Muhammad Hussain (PLD 1986 Pesh. 72) and Avan A. Cowasji v. Nasreen Nizam (1984 CLC 2705). It is submitted that where causes of action are united, the jurisdictional value of a suit would depend upon the amount or value of the aggregate subject‑matters at the date of instituting the suit, as provided by Order 2, Rule 3 of the Code of Civil Procedure, but for purposes of payment of court‑fee, the plaint would be chargeable with the aggregate amount of the fee in suits embracing separately each of such subjects would be liable under the Court Fees Act, as provided under section 17 thereof, and therefore the aggregate of the two maximum court‑fees would be leviable notwithstanding the proviso.

10. We have heard the arguments of the learned counsel for the appellant and the Deputy Attorney‑General and have perused the record. It is admitted 8 on both sides that the suit is of a multifarious nature falling under section 17 of the Court Fees Act and that the court‑fee payable thereon is the aggregate of the fee separately chargeable on the separate causes of action. 1f this be the B case, it is clear that the court‑fee would be Rs. 15,000, on each of the two causes of action, thus making an aggregate court‑fee of Rs. 30,000, payable on the plaint. The only question that arises for consideration is whether the proviso to Article 1 of Schedule I of the Court Fees Act limits the maximum ceiling regarding court‑fee payable on the plaint to Rs.15,000. The rulings cited by the learned counsel for. the parties in this case being relevant, deserve to be examined.

11. In Raghobir Singh v. Dharam Kuar (ILR 3 All. 108) a Full Bench of five learned Judges happened to consider such a question relating to a multifarious suit. The Court was dealing with a similar proviso contained in Article 1 of Schedule I of the Court Fees Act, 1870, relatable to the Province of Allahabad which provided the maximum court‑fee of Rs.3,000. The Full Bench held that the rule laid down in section 17 of the Court Fees Act regarding multifarious suits was subject to the proviso at the end of Article 1 of Schedule I of the Act and the maximum fee leviable on the plaint or memorandum of appeal in such a suit, as provided under that proviso, was Rs.3,000.

12. In Kashi Prasad Singh v. Secretary of State for India‑in‑Council (ILR 29 Cal. 140) the question before the Calcutta High Court was whether the 43 separate appeals filed in respect of judgment passed on references under the Land Acquisition Act could be consolidated, as was constantly done in the case of appeals before the Privy Council for general convenience or to save multiplicity of costs, notwithstanding the fact that an earlier appeal of the same nature which was decided earlier as a test case was decided by the Court against the appellant. On behalf of the appellants it was submitted that the 44 plots of land which were the subject of 44 references constituted but one estate, which was the property of the appellants, that there were no other parties before the Court other than the appellants and the Secretary of State, that section 17 of the Court Fees Act had no application for that related to distinct subjects as constituting distinct causes of action and that even if section 17 applied, it was subject to the limitation prescribed by the proviso to Article 1 of Schedule I of the Act, which was Rs.3,000. On behalf of the Secretary of State it was urged that the appellants were bound by the decision of the test appeal on which they had elected to have the judgment of the Court and that the question could not be opened up again and that even if the appeals were consolidated, the court‑fee would be leviable separately as the matters for decision were distinct within the meaning of section 17 of the Act. The Division Bench held that having regard to the terms of the earlier order by which the test case had been first put up for hearing and decided, the appellants were not precluded from requiring the consideration of the Court with regard to other appeals and that having regard to the fact that the parties were the same in all cases and the plots of land were contiguous to one another and formed part of one estaste, the appeals could be consolidated and court‑fee could be paid upon the value of the consolidated appeals under section 17 of the Act, subject to the limitation contained under Article 1 of Schedule I of the Act.

13: In Muhammad Mumtaz Ali Khan v. Muhammad Soodat Ali Khan (AIR 1930 Oudh 140) the question was whether the maximum cealing provided under Article 1 of Schedule I of the Act applied to certain counter‑claims pleaded in a written statement. The Court held that the Act did not authorise the recovery of any sum by way of court‑fee in excess of Rs.3,000 and therefore there was no authority for charging a larger sum on a written statement than that fixed as the maximum in Article 1 of Schedule I.

14. In C.P. Syndicate Ltd. v. Sardar Naurang Singh (AIR 1950 Nag. 189) the question before the Court was whether the four separate items being claimed by the petitioner company in the consolidated suits had to be valued for court‑fee under section 17 of the Act. The Court held that the relief s on the first two items and the third and the fourth were separate ones and each of them was founded on a different cause of action and that these relief s had to be valued separately though the maximum court‑fee payable on the plaint could in no case exceed the maximum limit as provided under Article 1‑A of Schedule‑ I of the C.P. and Berar Court Fees Act, 1870.

15. In Arbab Ghulam Ali Khan's case (PLDY 1986 Pesh. 72) the appellants filed a suit for declaration against the respondents (numbering 21) that they were entitled to 2/3rd share in the Shamilat land of the village and were entitled to the same share in the compensation which had been awarded by the Land Acquisition Collector to them They also prayed for permanent injunction restraining the respondents from interfering with their rights. Certain specific amounts of the compensation which each of the respondents had received from the Land Acquisition Collector were also claimed. The appellants paid court‑fee on the relief s regarding declaration and injunction, but no court‑fee was paid on the relief where they claimed specific amounts from each of the respondents Nos. 1 to 25, as every item of the compensation fell below Rs.25,000. The learned trial Court ordered the appellants to make good the court‑fee on the sum of Rs.1,12,400 which was being claimed as compensation. The High Court, however, held that as money suits, the valuation‑of which was below Rs.25,000 were not liable to pay court‑fee under the amended section 2 of the N.W.F.P. Court Fees (Abolition) Ordinance, XIV of 1978 and the mere fact that the appellants had taken advantage of the enabling .provisions of Order I, Rules 1 and 3, C.P.C., could not be deprived of the benefit to which they would otherwise' have been entitled under the provisions of the said Act. The Court held that as each item of the compensation claimed by the appellants against each one of the respondents had to be valued for the purposes of court‑fees separately and as each one of the amounts claimed in the plaint was below Rs.25,000, the said claims were exempt from the payment of court‑fee.

In Ava A. Kowasjee v. Nasreen Nizam Shah (1984 CLC 2705) a number of plaintiffs jointly sued a number of defendants for a number of relief s arising out of one cause of action; each relief being claimed for damages accruing to different plaintiffs. The Court held that the suit embraced two or more distinct subjects. However, the Court repelled the plea that the proviso to Article 1 of Schedule I of the Court Fees Act was applicable, on the ground that it did not relieve the plaintiffs from liability to pay court‑fees separately on each of the distinct subjects merely because separate claims had been made by different plaintiffs. It however conceded that on each separate distinct subject, the maximum court‑fee payable separately would not be more than Rs.15,000.

16. Under Article 1 of Schedule I of the Court Fees Act, VII of 1870 as amended by section 8 of the Punjab Finance Act, XVI of 1973, the court‑fee payable on a plaint and other documents .as is therein stated is as follows:‑‑

_______________________________________________________________

Serial No. Article Proper Fee

1. Plaint, written statement pleading a Seven‑and‑a‑half per set off or counter‑claim or centum on the amount of memorandum of appeal (not otherwise value of the subject provided for in this Act) or of cross‑ matter in dispute subject objection presented to any Civil or to a maximum of fifteen

Revenue Court except those mentioned thousand rupees. . in section 3.

Note.‑‑ The amount payable under this number shall be rounded to the nearest fifty paisas.

It is an admitted position between the parties that the suit of the appellant is of a multifarious nature and therefore one filed under section 17 of the Court Fees Act, 1870. The only question therefore that arises is whether the plaint is one not otherwise provided for in this Act. "Schedule II of the Act does refer to certain plaints and memoranda of appeal in respect of certain suits and applications and petitions presented to Civil Courts and other offices partaking of the nature of original proceedings and we have no reason to doubt that the words "not otherwise provided for in this Act" apparently refer to the provisions made for plaints and memoranda of appeal in certain suits referred to, in Schedule II. The instant. suit not being one specifically provided for in the Court Fees Act, would be governed by Article 1 of Schedule I of the Act.

17. The next question is whether the proviso in Article 1 of Schedule I of the Court-Fees Act limits the court‑fee chargeable on a plaint or memorandum of appeal of the nature mentioned in section 17 and whether the case is taken out of the operation of Article 1 of Schedule I by being otherwise provided for in this Act" that is to say provided for by section 17 Schedules I and II deal with leviability of court‑fees whereas the other provisions of the Act deal with chargeability, computation, etc. The language of Article 1 of Schedule I clearly states that this Article will not apply to a plaint or memorandum of appeal "otherwise provided for in this Act". These words obviously refer to a provision in the Schedules dealing with leviability. Thus a plaint or memorandum of appeal cannot come under the operation of Article 1 of Schedule 1, if it falls under some other specific Article in any of the Schedules. Schedule 11 refers to certain plaints and memoranda of appeal in certain suits where specific court fee is provided for Section 17 of the Act makes no provision of this kind. It merely lays down a rule whereby aggregate amount of fee leviable on the plaint or memorandum of appeal in suits embracing separate subjects will have to be paid, but does not itself fix the amount of the court‑fee. Rather, if refers to other parts of the Act for the amount leviable i.e. to the Schedules, which deal with the subject Section 17 is subject to the rules as to the amount of the fee which is stated in the Schedules. Thus, the court‑fee payable on a plaint in respect of a multifarious suit covered by section 17, where the court‑fee is not otherwise provided for by the Act, would be Article 1 of Schedule I. well, if this Article is applicable, it is to be applied according to its exact tenor. A maximum ceiling to court‑fee is provided on the documents listed in this Article, which includes a plaint. This would therefore apply, irrespective of the consideration whether section 17 is applicable to the case. The ceiling overrides the rule contained in section 17. Avan A. Cowasjee's case cited by the learned Deputy Attorney General has failed to mention the intent of the Government to limit the fee leviable Arbab Ghulam Ali Khan's case is in favour of the appellant. If the view as suggested by the learned Deputy Attorney General is applied, it would, as observed by Stuart, C.J. in Raghobir Singh's case, work so extravagently as to make the court‑fee payable under it rather in the nature of a penalty" Even otherwise, a taxing statute must be construed in the light of what is clearly expressed and if the legislature wants to fix a maximum ceiling beyond which it does not want to recover court‑fees, true recognition must be given to that intent.

17-A. As regards the two cases referred to in the concise statement of respondent No.5, they are in respect of section 17 of the Court Fees Act and do not touch the main point which is in dispute in this case. They are therefore not relevant to the dispute under consideration.

18. We, therefore, agree with the view of the learned counsel for the appellant that the maximum court‑fee payable on the plaint filed by the appellant company is Rs.15,000 and no further.

19. For the foregoing reasons, we accept this appeal, set aside the judgments of the Covets below and hold that the covet‑fee of Rs.15,000 already paid by the appellant its plaint is legal and correct and no further deficiency of court‑fee exists which requires to be made up. There shall be no order as to costs.

M.B.A./A‑983/S Appeal accepted.