Before Zia Perwez, f MEMON EDUCATIONAL BOARD vs M UNAWWAR HUSSAIN

1. ' Revision Applications Nos.67 of 1999, 68 of 1999, 69 of 1999 and 70 of 1999 are directed against the judgment of the learned VIII-Additional District and Sessions Judge, Karachi South involving a common point of law and are proposed to be disposed of by this order.

2. ' Brief facts of the case, similar in all the four cases are that applicants are a Society Registered under Societies Act, 1860. A charitable school known as Madressa Islamia No,1 is to run by the applicants since the year 1948 on the first, second and third floors of property bearing No, M.R. 7/58 Rampart Row, Khori Garden, Karachi (hereinafter referred to as the suit property). Applicants, occupying the suit property as tenants entered into agreement for purchase of the suit property with the eight different owners whose respective shares in the suit property are not partitioned.

3. Applicants claim that after marking substantial payment towards the sale consideration to each of the individual owners including the respondents in the present case. The conveyance deed could not be executed on account of incomplete documents of title which were agreed to be completed by each of the respondents in spite of the fact that the pay order for the balance amount of sale consideration was prepared and handed over to Mr. Abdul Sattar Pingar, Advocate for the respondents.

4. ' Applicants after service of legal notices instituted suits for specific performance and injunctions against all the eight individual owners in 1987 which were later withdrawn on 3-3-1990 with permission to file fresh suits in view of an understanding arrived at between the parties which was not implemented. Applicants instituted 8 suits afresh in 1992. Four suits were settled by compromise between the respective parties, while the remaining four were contested. Before the evidence could be recorded an application under Order 7, Rule 11, C.P.C. Was moved by the respondents and after hearing the parties, the leaned trial Court rejected the plaint vide order dated 13-10-1998 in spite of an issue whether the suit was barred by time that was to be decided after recording of evidence and fact of continuous physical possession of the suit property by the applicants.

5. ' Aggrieved by the Orders rejecting the plaint applicants preferred an appeal under section 96 of the Civil Procedure Code. The appeal alongwith the other 3 appeals was dismissed by the learned VIII-Additional District and Sessions Judge, Karachi South on the sole ground of non-payment of ad valorem court-fees by the applicants vide judgment dated 20-4-1999. Aggrieved by the judgment of the learned VIII-Additional District and Sessions Judge, Karachi South the applicants filed the present Revision Applications under section 115, C.P.C. And assailed the legality and proprietary of the impugned order dismissing the aforesaid Civil Appeals against the order of rejection of the plaint under Order 7, Rule 11, C.P.C. On the ground that the memorandum of appeal filed by the appellant was chargeable with ad valorem court-fees, which was not paid by the applicants.

6. ' On 11-10-1999 the above applications were admitted for regular hearing to consider the effect of the two conflicting views expressed by the learned Division Benches of this Court, as under:- "I have heard the leaned counsel for the parties. There are two conflicting views expressed by learned Division Benches of this Court, one rendered in Muhammad Anwar v. Messrs Associated Trading Co. (1988 CLC 1463) wherein the dictum recorded was that rejection of plaint being decree by virtue of section 2(2), C.P.C., memorandum of appeal against such order, ad valorem court-fee is payable. Whereas in Hafeezuddin v. KMC (PLD 1996 Kar. 499) contrary view was expressed after examining the provisions of section 2(2), C.P.C. And dictum was recorded that the decree against the rejection of plaint under section 2(2), C.P.C. Is confined to the Civil Procedure Code only and said definition cannot be extended for the application of court-fee. The learned Judges were of the view that such case would be covered by Article 12, clause (viii) of Schedule II of the Court Fees Act.

7. In arriving at such conclusion, cases of Ramparsad v Tirloki Nath (AIR 1938 Allahabad 50) and Bendapudi Venkataratnam v. Crown (AIR 1941 Madras 639) were considered. While recording the above dictum, the case of Muhammad Akbar was also considered and it was observed that the view of the cited decision with all respect, appears either to be incorrect or rendered per incurium."

8. ' In view of two conflicting views expressed in cases referred above, the points raised require consideration. In my view, instead of hearing the present revision application involving important question of law, the matter requires authoritative pronouncement by larger Bench in view of guidance given by the Supreme Court in such situation in Multiline Associates v. Ardeshir Cowasjee (PLD 1995 SC 423). Consequently, the revision application is admitted. The matter is referred to the Hon'ble Chief Justice for constitution of a larger Bench.

9. ' The Honourable Chief Justice was pleased to pass the following order:-- "I think there is no need to constitute a larger Bench. The matter can be decided in the light of appropriate case-law available, more particularly the latest view expressed therein. The matter be placed before the Court according to roster."

10. ' The latest view on this point to consider the question of the view to be followed in case of contrary findings of two Division Benches of this Court on a point that was not resolved by the constitution and reference to a larger bench came for consideration before the Honourable Supreme Court in the case of Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423. The Honbourable Supreme Court was pleased to consider with approval the case of Province of East Pakistan v. Dr. Azizul Islam PLD 1963 SC 259 and Sindheswar Ganguly v. State of West Bengal PLD 1958 SC (Ind.) 337 and arrived at the following conclusion: "In such circumstances, legal position which emerges is that the second Division Bench of the High Court should not have given finding contrary to the findings of the 1st Division Bench of the same Court on the same point and should have adopted the correct method by making a request for constitution of a larger Bench, if a contrary view had to be taken. In support reference can be made to the cases of the Province of East Pakistan v. Dr. Azizul Islam (PLD 1963 SC 296) and Sindheswa r Ganguly v. State of West Bengal (PLD 1958 SC (Ind.) 337), which is a case of Indian jurisdiction. We, therefore, hold that the earlier judgment of equal Bench in High Court on the same point is binding upon the second Bench and if a contrary view had to be taken, then request for constitution of larger Bench should have been made."

11. 'In view of the guiding principle laid down by the Honourable Supreme Court the earlier judgment of the Honourable Division Bench of this Court on the point of levy ad 'valorem court-fees on an appeal preferred against the order of rejection of plaint under Order 7, Rule 11, C.P.C., 1908 is binding upon the second Bench and is, therefore, applicable to the present case. The case of Muhammad Anwar v. M/s. Associated Trading Company Limited and another 1988 CLC 1462 is the earlier decision where in the Honourable Division Bench of this Court held as under:-- "In our view, if an order rejecting the plaint under Order VII, Rule 11, C.P.C. Is a decree for the purpose of filing of an appeal, it must follow that it is also a decree for the purpose of the Court Fees Act and, therefore, ad valorem court-fee is to be paid unless the Court Fees Act is amended."

12. ' No amendment in the law has been cited, in view of the guidelines laid down by the Honourable Supreme Court and following the views of the earlier Division Bench of this Court there is no option but to hold that an appeal against an order rejecting the plaint under Order VII, Rule I1, C.P.C. Is subject to levy of an ad valorem court-fees.

13. ' The question of continuous physical possession by the applicants can only be determined after recording of evidence and is beyond the scope of the present revision applications under section 115 of the Civil Procedure Code, 1908. If a plaint is rejected under Order VII, Rule 11, C.P.C. Plaintiff is not precluded from presenting a fresh plaint in respect of the same cause of action in view of the provision of rule 13 of Order VII, C.P.C. Provided the right of action is not barred by any law as laid down by the Honourable Supreme Court in the case of Mian Khan v. Aurang Zeb (1989 SCM R 58).

14. Accordingly in view of the observations these revision applications are dismissed with no order as to costs.

15. Revision .