Ch. MUHAMMAD ISMAIL vs FAZAL ZADA, CIVIL JUDGE, LAHORE and 20 others

ORDER

' MUHAMMAD ILYAS, J.---This petition has arisen out of a suit brought by the petitioner, Ch. Muhammad Ismail, against respondents Nos.2 to 21, Malik Muhammad Arshad and others, in the Court of respondent No,1, Mr. Fazal Zada, Civil Judge, Lahore for recovery of Rs,1,00,00,000 as damages for demolishing his motor workshop. View taken by the learned Civil Judge was that court-fee of Rs,15,000 was payable on the plaint of the suit. Since he had not paid the requisite court-fee, the plaint was rejected by the learned Civil Judge.

2. Order of the learned Civil Judge was challenged by the petitioner before the Lahore High Court by means of a petition, under Articles 199 and 203 of the Constitution, contending that it was without lawful authority and of no legal effect. A Single Judge of the said High Court dismissed the writ petition in limine saying that as the remedy of appeal was available to the petitioner, the petition made to the High Court was not competent. Now, by making the petition in hand, he seeks leave to appeal against the order of the learned Judge in Chambers.

3. It was not disputed by learned counsel for the petitioner that the remedy of appeal was available to the petitioner against the order of the learned Civil Judge. His argument, however, was that the learned Civil Judge had rejected the plaint without allowing an opportunity to the petitioner to make good the deficiency in court-fee and thus the learned Civil Judge had exceeded his jurisdiction. The argument proceeds that his order of rejection of plaint could, therefore, be assailed by the petitioner by invoking Constitutional jurisdiction of the High Court. He relied on Siddique Khan and 2 others v. Abdul Shakur Khan and another (PLD 1984 SC 289), Lt.-Col. Nawabzada Muhammad Aniir Khan v. The Controller of Estate Duty etc. (PLD 1961 SC 119) and Fazal Din alias Mina, etc. v. Commissioner, Peshawar Division etc. (PLD 1968 Peshawar 30) to support his argument.

4. It is true that in the case of Siddique Khan and 2 others, it was held by this Court that before a plaint is rejected for non-payment of requisite court-fee, the plaintiff will be given time to supply the deficient court-fee. We also find that in the cases of Lt.-Col. Nawabzada Muhammad Amir Khan and Faint Din alias Mina, it was ruled by this Court that if an order is passed by a Court or authority by exceeding its jurisdiction, a writ of certiorari is competent even if the remedy of appeal against such order is available to the aggrieved party. Similar view was expressed in the the case of Fazal Din alias Mina etc.

5. Before proceeding further, we would like to explain what is meant by want of jurisdiction, excess of jurisdiction and wrong exercise of jurisdiction. If a Magistrate having no powers to decide civil suits, proceeds to decide such a suit, it will be case of want of jurisdiction. If a Civil Judge disposes of a suit, the jurisdictional valuation whereof exceeds the limits of his pecuniary jurisdiction, it will be a case of excess of jurisdiction. If a Civil Judge has pecuniary as well as territorial jurisdiction to decide a suit but decides it by misinterpreting any provision of law or by improperly appraising the evidence on the record, it will be a case of wrong exercise of jurisdiction.

6. Now, what is to be seen is whether the order passed by the learned Single Judge in the instant case is in the excess of his jurisdiction or it is a case of wrong exercise of the jurisdiction by him.

Rule 11 of Order VII of the Code of Civil Procedure conferred jurisdiction on the learned Civil Judge to reject the plaint for the petitioner's failure to pay proper court-fee. The short coming attributed to the learned Civil Judge in this regard is that he did not allow time to the petitioner to make good the deficiency to court-fee before rejecting the plaint. The position, therefore, boils down to this that the learned Civil Judge had the jurisdiction to reject the plaint but he had allegedly done so in a wrong way. In other words, it is a case of wrong exercise of jurisdiction and not that of want of jurisdiction or excess of jurisdiction. We are, therefore, not inclined to agree with the learned counsel that the impugned order was passed by the learned Civil Judge by exceeding his jurisdiction and consequently the petitioner could invoke the Constitutional jurisdiction of the High Court even though his order could be challenged by the petitioner by means of an appeal.

7. It is also noteworthy that the jurisdiction conferred on the High Court under Articles 199 and 203 of the Constitution is of extraordinary nature and is, therefore, to be exercised sparingly. The High Court has to be specially cautious in exercising its Constitutional jurisdiction when other adequate remedy is available to the party invoking that jurisdiction. Similar observations were made by the Peshawar Bench of the erstwhile High Court of West Pakistan in the case of Fazal Din alias Mina etc., cited by the learned counsel for the petitioner, while deciding a writ petition under Article 98 of the Constitution of 1962, the provisions whereof were somewhat similar to those of Article 199 of the present Constitution of 1973. The observations in point read as follows:- "The basic principle, however, to be kept in view by the Court should be that the power under Article 98, where the alternative remedy is not exhausted, is exercised sparingly with caution and circumspection; and ordinarily only in those cases where grave injustice may otherwise ensue."

8. In the case in hand, question raised by the petitioner before the Lahore High Court was of a simple nature. Plaint in his suit was rejected for non-payment of requisite court-fee. Order by which the plaint was rejected was passed on 11th July, 1994. By then, it had been ruled by this Court in the case of Siddique Khan and 2 others that before rejecting plaint for non-payment of requisite court- fee, an opportunity is to be afforded to the plaintiff to make good the deficiency in court-fee. It this dictum had not been followed by the learned Civil Judge, the petitioner could easily assail his order by means of an appeal. We wonder why he had rushed to the High Court with a writ petition instead of taking appeal before the appropriate forum. The course adopted by him was not proper and we are not inclined to condone his lapse in this behalf by finding fault with the order of the High Court for which there is no justification.

9. The High Courts are already huddled up with thousands of cases. If the litigant public is permitted to take all sorts of disputes to the High Courts without first availing of the other remedies available to them, under law, it will not only necessarily increase the work-load of the High Courts but would also defeat the provisions of law by which the said remedies have been made available. Such a spree on the part of the litigant public would, if we may say so, amount to abuse of the Constitutional jurisdiction which is to be exercised by the High Courts in exceptional cases to provide justice which cannot be otherwise obtained by the aggrieved parties.

10. What 'emerges from the above discussion is that there is nothing wrong with the order of the learned Single Judge by which he had declined to exercise Constitutional jurisdiction at the instance of the petitioner qua the aforesaid order of the learned Civil Judge. In any case, the order of the learned Judge in Chambers does not, in the aforementioned circumstances, call for interference by this Court.

11. In this view of the matter, leave is refused to the petitioner to appeal against the impugned order of the learned Single Judge and his petition dismissed.