MEMON EDUCATIONAL BOARD AND SOCIETY, KARACHI vs MUNAWAR HUSSAIN

ORDER

' IFTIKHAR MUHAMMAD CHAUDHRY, J.---These-petitions for leave to appeal have been filed against the judgment, dated 4th July, 2001 passed by High Court of Sindh, Karachi whereby Revision Applications Nos.67--70 of 1999 filed by petitioner have been dismissed.

2. Precisely stating the facts of the case are that petitioner preferred suits for specific performance in respect of the property details whereof have been mentioned in the plaint. Subject-matter of the suits were valued according to law on which ad volorem court-fee was paid as per provisions of Court Fees Act. This fact has been mentioned herein specifically, keeping in view the controversy involved in the instant case namely what would be quantum of court-fee payable on the memo. Of appeal, if a plaint has been rejected under Order VII, rule 11, C.P.C.

3. Because in instant cases learned trial Court vide order, dated 13th October 1998 rejected the plaint under Order VII, rule 11(b), C.P.C. By passing a detailed order, holding that suits are barred by limitation, therefore, petitioner preferred appeals before the Additional District Judge but on the memo. Of appeals ad valorem court-fee was not paid as such the same were dismissed on 20th April, 1999. Subsequently, petitioner preferred revision petitions before the High Court, agitating that ad valorem court-fee is not payable on the memo. Of appeal if order of rejection of plaint under Order VII, rule 11(d) is agitated, but without success as the same were also dismissed vide impugned judgment dated 4th July, 2001. As such instant petitions for leave to appeal have been filed.

4. Learned counsel appearing for petitioners contended that in view of the judgment in the case of Hafeezuddin v. K,M.C. And others PLD 1996 Kar. 499 ad valorem court-fee was not payable because on rejection of the plaint, the value of subject-matter was not estimatable as such under the provisions of Schedule II, Article 12, clause (vii) of the Court Fees Act Rs,15 was payable on the memo. Of appeal. Therefore, under Article 185(3) of the Constitution of Islamic Republic of Pakistan impugned order may be set aside and case may be remanded to Appellate Court for decision on merits.

5. On the other hand learned counsel for respondents contended that order of rejection of plaint falls within the definition of a decree under section 2(2), C.P.C., therefore, in view of the judgment in the case of Muhammad Anwar v. Messrs Associated Trading Co. Ltd. And another (1988 CLC 1462), ad valorem court-fee was payable on the memo of appeal.

6. We have heard learned counsel for the parties and have also gone through the relevant provisions of law as well as pleadings of the parties. It may be noted that while instituting suits, petitioners have paid ad valorem court-fee according to the valuation of the subject-matter, as it is indicated from perusal of valuation clause of the plaints. There is no dispute that as per existing provisions of section 2(2) of C.P.C., rejection of a plaint tantamount to passing of a decree challengeable in appeal under section 96 of C.P.C. Reference in this behalf can be made to the judgments in the cases of Ghulam Muhammad v. United States Agency for International Development (U.S. Aid) Mission, Islamabad and another (1986 SCM R 907). Moreover, both the parties conceded that the order of rejection of plaint, dated 13th October, 1998 was appealable under section 96, C.P.C., therefore, question arises that if a decree of a Court has been challenged by invoking the jurisdiction of the Appellate Court, how much court-fee is payable on the memo. Of appeal. In this behalf first of all reference may be made to section 18 of the Civil, Courts Ordinance, 1962 which provides forum for filing of appeal, on the basis of value of the original suit. As per this provision, as it has been amended by the Sindh Amendment (Act-III) of 1992, appeal was competent before the District Judge because the value of the subject-matter was less than Rs,2,50,000, therefore, the appeal was rightly filed before the District Judge. After having determined the forum of appeal, to ascertain the value of court fee, which will be paid on the memo. Of appeal, reference has to be made to section 7(v) read with Schedule I, Article 1 of the Court Fees Act (VII of 1870), which provides that the valuation would be the same, which was fixed before the trial Court in the valuation clause unless it is shown that value of appeal is different from value of suit. In the instant case as it has been observed hereinabove that rejection of plaint tantamount to passing of a decree in terms of section 2(2), C.P.C. And valuation of appeal, has not been shown different from the valuation of the subject-matter shown in the plaint, therefore, ad valorem court-fee will be leviable on the memo. Of appeal. As far as Article 2, clause (vii) of Schedule II of the Court Fees Act is concerned, it would not be applicable because in the instant case the valuation of the plaint has already been ascertained.

7. It may be noted that learned Judge in Chambers of the High Court of Sindh, Karachi, who had delivered the judgment in the case. Of Hafeezuddin (ibid), in fact had relied upon two judgments from the Indian jurisdiction reported as Ram Prasad v. Tirloki Nath (AIR 1938 Allahabad 50) and Kuntamukkala Venkateswa ra Rao v. Sree Raja Kunduru Lakshmikantharao Bahadur Zamindar Garu and others (AIR 1941 Madras 638) perhaps for want of proper assistance because in these two judgments original definition of the decree under section 2(2), C.P.C. Was discussed but now after promulgation of Law Reforms Ordinance, 1972, the order of rejection of a plaint has also been covered by the definition of the decree. Therefore, for such reason, we are not inclined to approve the view-point of the learned Judge of the High Court in the case of Hafizullah (ibid). As far as the judgment in the case of Muhammad Anwar (ibid) is concerned, it is approved for the reason that in this 'case amended definition of the decree under section 2(2), C.P.C. Has been considered.

' Thus in our opinion, learned Judge in Chambers of High Court of Sindh, Karachi has rightly followed the dictum laid down in the case of Muhammad Anwar (ibid).

8. After hearing the learned counsel for the parties and examining the judgments noted hereinabove, we were inclined to grant leave to appeal but at this juncture, learned counsel for the parties stated that petitioner was non-suited by the Appellate Court without providing opportunity to it to make up deficient court-fee in terms of law laid down by this Court in the case of Mian Khan v. Aurangzeb and 12 others (1989 SCM R 58). Therefore, even now, if opportunity is given, petitioner is ready to make payment of deficient court-fee. In this behalf an application was also moved.

9. Learned counsel for respondents on having realized that the appeals, arising out of instant petitions, if leave is granted, will consume sufficient time and matter will remain pending, therefore, he conceded to the request of the petitioner's counsel for remand of the case to concerned District Judge, subject to payment of ad valorem court-fee as well as compensating the respondents by making payment of costs as they have unnecessarily been dragged up to the Supreme Court.

10. As it has been discussed hereinabove that the petitioner has been non-suited principally for technical reason i.e, non-payment of ad valorem court-fee, therefore, in the interest of justice and following the consistent view of this Court that the parties' rights should be settled on merits instead of non-suiting anyone of them for technical reasons, we dispose of instant petitions as follows:--

(i) The impugned judgment is maintained to the extent that on memo. Of appeals filed against the order of the rejections of the plaints, passed under Order VII, rule 11(d), ad valorem court-fee is payable ' according to Schedule 1, Article 1 of the Court Fees Act.

(ii) The impugned order is set aside to the extent of non-suiting the petitioner without providing opportunity to it to make the payment of the court-fee, in view of the principle laid down by this Court in the case of Mian Khan (ibid).

(iii) As a result of above, instant petitions are converted into appeals and allowed. The cases are remanded to the District Judge concerned to dispose of the appeals afresh, after getting deposited ad valorem court-fee from the petitioner on each memo. Of appeal within 15 days from the date of first hearing of the appeals. The appeals shall be decided positively within three months after receipt hereof.

(iv) Respondent shall be entitled for costs of Rs, 2,000 per case.