P L D 1993 Supreme Court 76

Pment Nasim Hasan Shah, Abdul Shakund Salain

and Muhammad Afzal Lone, JJ

Sh. RLAZ-UD-DIN--Appeflant

versus

AQIL-UR-REHMAN SIDDIQUI and 4 others--Respondents

Civil Appeal No.1107 of 1990, decided on 27th October, 1992.

(On appeal from the judgment dated 19-1-1986 of the Lahore High Court, Lahore in
civil misc. No-5639/C of 1985 in R.F.A. No. 24 of 1984).

(a) Court Fees Act (VII of 1870)-

---- S.13 --- Civil Procedure Code (V of 1908), S.151 --- Constitution of Pakistan
(1973), Art.185(3) --- Withdrawal of appeal before High Court on basis of compromise
--- Plaintiff making two applications, one before Trial Court for certificate authorising
him to receive back from the Collector amount, paid by him as court-fee on the plaint
and a similar prayer in the other before High Court in respect of* court-fee paid by him
on memo. of appeal in the High Court, which were rejected-7-Leave to appeal was
granted to examine the conflict of opinion between the view of two High Courts whereby
one High Court had expressed the view that High Court in its inherent jurisdiction could
order refund of court-fee on the withdrawal of appeal; while the other had found that
High Court had no inherent power to refund the court-fee; as authoritative
pronouncement by Supreme Court was necessary to resolve the same.

Bhola v. Sardar Muhammad PLD 1976 Lah. 1268; Trade Well (Pakistan) v. The Standard
Bank Limited pJ.D 1975 Kar. 178 and Nabi Bux Khan Bhurgari v. National Bank of
Pakistan PLD 1988 Kar. 24 ref

(b) Court Fees Act (VII of 1870)-

---- S.13 --- Constitution of Pakistan (1973), Arts.2-A, 37(d) & 185 --- Withdrawal of
appeal on basis of compromise --- Certificate to receive back court-fee amount paid by
plaintiff (appellant) on the plaint and memo. of appeal- Entitlement --- State, under
Art.2-A of the Constitution was obliged to further the ends of social justice, which, inter
alia obliged it to ensure inexpensive and
expeditious justice in terms of Art37(d) of the Constitution --- High Court erred in
refusing certificate to plaintiff to receive back amount of court-fee spent by him on the
plaint and memo. of appeal; it was incumbent upon High Court to

adopt the interpretation of S.13 of the Court Fees Act which furthered the objectives of
the Constitution rather than negated them --- Plaintiff was issued necessary certificate
authorising him to recover amount incurred by him on payment of court-fee on the plaint
and memo. of appeal.

Under Article 2-A of the Constitution of 1973 the State was obligated to further the ends
of social justice which, inter alia, obligate it to "ensure inexpensive and expeditious
justice" (as embodied in Article 37(d) of the Constitution). To require a party to pay
court-fee in a proceeding where the parties had compromised their dispute outside the
Court and decided to withdraw the proceedings pending before the Court, thereby not
burdening it (the Court) to expend its valuable time in examining the case, in hearing
arguments in connection therewith, deliberating over the judgment thereon and then in
formally taking time to write it; manifestly would defeat the mandate of the Constitution
as it penalises the party for approaching the Court, instead of assisting it to obtain
inexpensive and speSdy justice. It was incumbent upon the Court to adopt the
interpretation which furthered the objectives of the Constitution rather than negated them.

(c) Interpretation of Constitution-

.... Court has to adopt the interpretation which furthers the objectives of the constitution
rather than negates them.

Dr. A. Basit, Advocate Supreme Court and Tanvir Ahmad, Advocate. on-Record'for
Appellant.

Respondents: Ex parte.

Date of hearing: 27th October, 1992.

JUDGMENT

NASIM HASAN SHAH, J.-The facts, which form the background to this appeal, are
explained with completeness and clarity in the order granting leave and are, accordingly,
being reproduced below unchanged:--

"This petition for leave to.-appeal is directed against the order dated '19th January, 1986,
whereby a Division Bench of the Lahore High Court, dismissed two refund of court-fees.

applications of the petitioner (now appellant) for

The facts so far as relevant are that the petitioner (appellant herein) instituted a suit for
recovery of Rs.3,40,000 under Order XXXVII, C.P.C. against the respondents on the
basis of cheques. The learned Additional District Judge, Lahore, in whose Court the suit.
was pending rejected the plaint on the ground that the suit filed by the petitioner was not
competent. The petitioner (appellant herein) challenged the order passed by the learned
Additional District Judge in an appeal before the High Court. This appeal was admitted to
regular hearing and order under Order XXXVIII, rule 5, C.P.C. Zirecting the respondents
to furnish security for the payment of amount claimed by the petitioner (appellant herein)
was also passed, which was complied with by the respondents. However, on 14th
December, 1985, the petitionees counsel withdrew the appeal on a statement to the effect
that the parties had compromised their dispute outside the Court. The appeal was,
accordingly, dismissed as withdrawn.

It is in these circumstances that the petitioner (appellant herein) made two applications,
C.M.5638/C/85, under section 151, C.P.C praying for a certificate authorising him to
receive back from the Collector the amount of Rs.50,000 paid by him for affixing
court-fee on the plaint rejected by the trial Court; and C.M.5639/C/85 with a similar
prayer in respect of court-fee paid by him on a memo. of the appeal in the High Court
under section 13 of the Court Fees Act, 1870.

The learned Judges of the Division Bench took the view that the provisions of section 13
of the Court Fees Act were not attracted in the facts of this case, as neither the plaint
having been rejected by the trial Court, had been ordered to be received, nor the suit was
remanded in appeal under Order XLI, rule 23,, C.P.C. On the contrary, the petitioner
(appellant herein) having taken the benefit of the appeal by securing the order of security,
it could not be said that the petitioner (appellant herein) had withdrawn the appeal before
exercise of the judicial power. Learned Judges did not follow the view taken in Bhola v.
Sardar Muhammad PLD 1976 Lahore 1268 and distinguished the same on the ground
that it was passed on principles of policy contained in Article 37(d) of the Constitution.
They preferred to follow the Division Bench's judgment of the Sindh High Court reported
as Trade Well (Pakistan) v. The Standard Bank Limited PLD 1975 Karachi 178, in which
it was held that "the levy of the court-fee if sanctioned by a' statute cannot be ordered to
be refunded unless the law so expressly provided and that the Court has no inherent
power to refund the court-fee as prescribed by law Learned Judges of the Sindh High
Court have further observed that inherent jurisdiction can only be invoked in cases where
the amount paid as court-fee was in fact not payable in law and not otherwise like in
cases of mistake of the party or Court.

In Bhola's case (supra) on the other hand it has been held that the High Court in its
inherent jurisdiction can order refund of court-fee on the withdrawal of the appeal, the
proceedings in which had not gone beyond the stage of admission and that section 13 of
the Court Fees Act is not exhaustive on the ground for refund of court-fee, which view
fully supports the contention of the petitioner (appellant herein).

Learned counsel has also referred us to Nabi Bux Khan Bhurgari v. National Bank of
Pakistan PLD 1988 Karachi 24 in which view has been expressed that section 13 of the
Court Fees Act can be supplemented by other grounds in the exercise of inherent power

subject, however, to the condition that the exercise of power is in the interest of justice
only. .

There appears to be conflict of opinion between the views of the two Courts as mentioned
above and an authoritative pronouncement of this Court is, therefore, necessary to resolve
the same. Leave is, accordingly, granted."

We have heard Dr. Basit for the appellant. None has appeared to contest and the
respondents are, therefore, being proceeded against ex parte.

Dr. Basit has submitted that the High Couit in its impugned judgment has erred in
following the view taken in Trade Well (Pakistan) v. The Standard Bank Limited PLD
1975 Karachi 178, in preference to the view taken in Bhola v. Sardar Muhammad PLD
1976 Lahore 1268 even though the Sindh High Court had itself modified the earlier view
expressed in the case of Trade Well (Pakistan) PLD 1975 Karachi 178 and had veered
round to the view of the Lahore High Court in Bhola's case PLD 1976 Lahore 1268 in its
subsequent judgment reported as Nabi Bux Khan Bhurgari v. National Bank of Pakistan
PLD 1988 Karachi 24. The submission is that in adopting the view it has expressed in
this case it has taken a retrogressive step which is against the avowed aim of the State to
make justice available to its citizens without placing undue burdens on them.

We find force in these submissions. Under Article 2-A of the Constitution of 1973 (as
amended in 1985) the State is obligated to further. the ends of social justice which, inter
alia, obligate it to *ensure inexpensive and expeditious justice" (see Article 37(d) of the.
Constitution). To require a party to pay court-fee in a proceeding where the parties have
compromised their dispute outside the Court and decided to withdraw the proceedings
pending

before the Court, thereby not burdening it (the Court) to expend its valuable time in
examining the case, in hearing arguments in connection therewith, deliberating over the
judgment thereon and then in formally taking time to write it; manifestly defeats the
above mandate of the Constitution as it penalises the party for approaching the Court,
instead of assisting it to obtain inexpensive and speedy justice. It was incumbent upon the
High Court to adopt the interpretation which furthered the objectives of the Constitution
rather than negated them. Thus the conclusion reached by through Court cannot be
sustained.

The result is that this appeal is allowed and it shall issue the necessary certificate
authorising the appellant to recover the amount incurred by him on payment of court-fee
on the plaint and memo of appeal. No costs.

AA./R-206/S Appeal allowed.