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P L D 2007 Lahore 461

Before Syed Hamid Ali Shah, J

ZAHOOR AHMED and 309 others---Petitioners

Versus

MEMBER, (CONSOLIDATION) BOARD OF REVENUE, PUNJAB and 23 others---


Respondents

Objection Case No.19471 of 2006, decided on 30th November, 2006.

(a) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Joining of more than one petitioners---Principles--


Several petitioners, having community of interest and common grievance, can file joint
petition under Art. 199 of the Constitution---No restraint existed on several petitioners to
file a joint petition, where right to relief arises from the same act or transaction; or when
common question of law and fact is involved; or where petitioners are jointly interested
in cause or causes of action; or when evidence/proof for determination of controversy is
the same.

(b) Constitution of Pakistan (1973)---

----Art. 199---Civil Procedure Code (V of 1908), Preamble---Constitutional petition---


Provisions of Civil Procedure Code, 1908---Applicability---Provisions of Civil Procedure
Code, 1908, govern the matters falling in constitutional jurisdiction, as far as they are not
in conflict with High Court Rules and Orders---To conduct proceedings under
constitutional jurisdiction, the procedure of Civil Procedure Code, 1908, is always
resorted to, being general law of procedure.

(c) Constitution of Pakistan (1973)---

----Art. 199---High Court (Lahore) Rules and Orders, Vol. V, Chap.4-F, R.10(i), Part III
of Part. J---Constitutional petition---Joint petition---Scope---Office objection---Fixation
of court-fee---Filing of joint petition by more than one petitioners---More than three
hundred petitioners were aggrieved of some order passed by Board of Revenue---There
being common question of law and one cause of action, therefore, all petitioners filed
joint petition---Objection raised by office was that instead of fixing one Court-fee, every
petitioner was supposed to fix court-fee separately---Validity---Each petitioner, in a joint
petition had his/its own cause of action---Relief claimed by such petitioner was to his
extent and grievance of each petitioner was individual---Petition by each one of the
petitioners in a joint petition would be deemed independent and each of such persons was
liable to pay court-fee separately---Object of allowing joint petitions was to avoid
conflicting judgments or to allow litigants to conveniently and properly file one petition
without going into a hassle of filing and documenting petition separately, as such the
same could not absolve the petitioners from payment of court-fee separately---Single set
of Court-fee was not legal---One set of court-fee, was payable by several petitioners only
when inter se petitioners a jural relationship subsisted i.e. association of persons
registered as a firm or incorporated company etc., or in the case of public injury leading
to public interest litigation, or in case where series of complaints/impugned acts had
arisen out of one action or order---High Court directed the petitioners who had filed joint
petition, to pay separate court-fee---Office objection was sustained accordingly.

Ava A Cowasjee and 8 others v. Nasreen Nizam Shah and 4 others 1984 CLC 2705;
Arbab Ghulam Ali Khan and 14 others v. Arbab Muhammad Hussain and 14 others PLD
1986 Pesh. 72; Grain International's case AIR 1981 AP 301; Matti Singh v. State of
Haryana AIR 1984 SC 484 and Ainullah v. Abdul Rashid 1985 SCMR 1991 rel.

Page No. 1 of 4
Haru Bepari and others v. Roy Kshitish Bhusan Roty Bahadur and others AIR 1935 Cal.
573; Hussain Bakhsh v. Settlement Commissioner and others PLD 1970 SC 1 and Abdul
Malik v. Chief Settlement Commissioner and others PLD 1967 Lah. 520 ref.

Ch. Iqbal Ahmad Khan for Petitioners.

Hafiz Abdur Rehman Ansari and Ch. Azeem Sarwar for Respondents.

ORDER

SYED HAMID ALI SHAH, J.---This single order will dispose of office objections, on
writ petition titled "Zahoor Ahmad etc. v. Member (Consolidation) BOR etc." and eight
petitions with, the title of "Mst. Amina Bibi etc. v. Member (Judicial-II).Board of
Revenue etc." as the office objection, in these petitions involves common question of law.

2. Various petitioners in a joint petition have paid court-fee of Rs.500 (rupees five
hundred only) despite the office objection that it is payable as per Chapter 3 clause 10(i)
of High Court Rules and Orders at the said rate, per petitioner.

3. It is contended by Hafiz Abdur Rehman Ansari, Advocate in eight cases with the title
of "Mst. Amina Bibi etc. v. Member (Judicial-II) Board of Revenue etc." that order of
Member (Judicial-II) Board of Revenue dated 12-7-2006 is being assailed having
common questions of law and one cause of action. He added court-fee is payable is
Rs.500 (rupees five hundred only) in respect of one writ petition, where impugned order
has been passed through a single judgment and challenged by various persons. He has
submitted that earlier in Writ Petitions Nos.14967 of 2004 and 18774 of 2005, more than
one petitioners, assailed single order by affixing stamp paper of Rs.500 (rupees five
hundred only), the writ petition was entertained and office objection was overruled.
Learned counsel with specific reference to his case has submitted that a landlord can seek
ejectment of various tenants through -single petition, similarly different petitioners can
seek the redemption of mortgage through one petition. The single order, in such
proceedings, is assailable through filing joint writ petition and court-fee leviable thereon,
is per petition and not on the basis of per petitioner. Learned counsel went on to argue
that according to the provisions of Order I, Rule 1, C.P.C. and Order II, Rule 3, C.P.C.
where common questions of law or fact arise, all persons can join in one suit as plaintiff,
for one cause of action. The object is to prevent further litigation and multiplicity of
proceedings. He has referred to the case of "Ava A Cowasjee and 8 others v. Nasreen
Nizam Shah and 4 others" 1984 CLC 2705 and "Arbab Ghulam Ali Khan and 14 others v.
Arbab Muhammad Hussain and 14 others PLD 1986 Peshawar 72 to contend that
maximum court-fee of Rs.15,000 (rupees fifteen thousand only) is payable, in a suit
having distinct subjects Valuation of all claims can be made separately but to the
maximum of Rs.15,000.He went on to argue that separate valuation on all claims made
separately and on different footings by different plaintiffs, having common cause of
action in one suit, is not legally tenable. Learned counsel supported this contention by
placing reliance on "Haru Bepari and lathers v. Roy Kshitish Bhusan Roy Bahadur and
others (AIR 1935 Calcutta 573).

4. Ch. Iqbal Ahmad Khan, learned counsel for the petitioners in Zahoor Ahmad etc. v.
M.B.R." has submitted that the order impugned in the writ petition is by Member Board
of Revenue, where through single order the grievance against the consolidation
proceedings was disposed of. Learned counsel submitted that matter involved in this writ
petition is a consolidated order in respect of a joint cause of action thus legally the court-
fee payable is only Rs.500 (rupees five hundred only). He has referred to the case of
"Hussain Bakhsh v. Settlement Commissioner and others PLD 1970 SC 1 to contend that
Civil Procedure Code is applicable to the matters falling in writ jurisdiction. Learned
counsel in support of this argument found support from the case of "Abdul Malik v. Chief
Settlement Commissioner etc." (PLD 1967 Lahore 520). He has submitted that court-fee
as per Chapter 4 para.3 clause 10(i) of the High Court Rules and Orders, is payable on
each petition. The term used in the above provision is one "petition" and not "petitioner".
The petition filed by various petitioners, as per the above referred provision of law, is
subject to payment of one court-fee.' Office objection that court-fee is leviable by each
petitioner in a joint petition, is without any lawful justification.

Page No. 2 of 4
5. Heard learned counsel for petitioners and record perused.

6. Petitioners have refuted the office objections, raising the plea that relief sought for,
arises from same order/judgment/act/transaction, there is a common question of law and
fact, petitioners are jointly interested in causes of action or proof/evidence required for
determination; the question involved in the controversy is the same/common. One
petition can jointly be filed in such circumstances. Court-fee on petition cannot be legally
more than the maximum on aggregate value on all claims made separately. Law is settled
that several petitioners, having community of interest and common grievance can file
joint petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
The question does not need any determination. There is no restraint on several petitioners
to file a joint petition where right to relief arises from the same act or transaction; or
when common question of law and fact is involved, or where petitioners are jointly
interested in cause or causes of action; or when the evidence/proof for determination of
controversy is the same.

7. It is not disputed that provisions of Code of Civil Procedure, 1908, govern the matters
falling in writ jurisdiction, as far as they are not in conflict with the High Court Rules and
Orders. To conduct the proceedings under writ jurisdiction, the procedure of Code of
1908, is always resorted to, being general law of procedure.

8. Now I revert to the other question i.e. leviability of court-fee on joint petition by
several petitioners. Court Fees Act, 1870 (Act VII of 1870) nowhere prescribes any fee
for the petition filed in the High Court, under Article 199 of the Constitution. The court-
fee of Rs.500 (rupees five hundred only) on each petition is leviable under Rule 10(i),
Part III of Part J. Chapter 4-F of High Court Rules and Orders, Volume V. The question
arises, whether several petitioners who have filed one petition, would be liable to pay one
set of court-fee, simply because they have joined as petitioners in one petition.

9. The question of payment of court-fee by several petitioners/plaintiffs in a joint


petition/suit, came up for consideration in various cases The case law on this specific
question needs mention:

(i) Several traders, who are registered dealers in rice and broken rice challenged in a writ
petition the interference in the free movement of rice or broken rice, in second or
subsequent sale either by rail or by road, within the state or other states of the country. It
was held by the Andra Pardesh High Court in the matter of Grain International (AIR 1981
AP 301) that several petitioners could join in filing a single writ petition. Even if they
were allowed to join, they would be liable to pay court-fee as if each one of them had
filed a separate writ petition.

(ii) In the case of "Mata Singh v. State of Haryana" (AIR 1984 SC 484) it was held that
several truck operators who filed single petition, challenging the imposing of tax, each
one has his own cause of action, arising out of liability to pay tax individually and each of
such persons would be liable to pay court-fee separately.

(iii) A plaintiff who through a single suit claimed, different amounts from various
defendants. Aggregate amount was more than 25,000, while his claim against each
defendant separately, was below Rs.25,000, viz. exempted from levy of court-fee. It was
held by a learned Division Bench of Peshawar High Court in the case of "Arbab Ghulam
Ali Khan and 14 others v. Arbab Muhammad Hussain and 14 others" (PLD 1986
Peshawar 72) that claim of plaintiff against each of the defendants Nos.1 to 21 is to be
valued separately for the purposes of court-fee.

(iv) In the case of "Ava A Cowasjee and 8 others v. Nasreen Nizam Shah and 4 others"
(1984 CLC 2705) a plaintiff filed a single suit claiming different amounts. It was held
that claims of different plaintiffs based on distinct subjects, are to be .valued separately.
Plaintiffs were directed to pay court-fee on their respective claims instead of paying
maximum court-fee of Rs.15,000 (rupees fifteen thousand only).

Page No. 3 of 4
(v) In the case of "Ainullah v. Abdul Rashid" (1985 SCMR 1991) two appeals against the
order of ejectment passed by the Rent Controller were filed before the High Court, which
were disposed of through a consolidated judgment. Consolidated judgment was assailed
before the apex court against which an objection was raised that the consolidated
judgment has been passed in two appeals and it is not clear that judgment in which of the
two appeals, was assailed in the Supreme Court. The hon'ble Supreme Court instead of
treating the memo. of appeal in one appeal, treated the memo. in both the appeals, while
holding that the objection is valid but being technical in nature, can be ignored and
directed to make up the court fee by tendering additional court-fee in respect of other
appeal.

10. From the survey of above case law, it can safely be concluded that each petitioner, in
a joint petition has his/its own cause of action and relief claimed by such petitioner is to
his extent and grievance of each petitioner is individual. The petition by each one of the
petitioners in a joint petition, shall be deemed independent and each of such person, shall
be liable to pay court-fee separately. The object, of allowing joint petitions, is to avoid
conflicting judgments or to allow litigants to conveniently and properly file one petition
without going into a hassle of filing and documenting the petition separately. This
however; does not absolve the petitioners from payment of court-fee, separately. Single
set of court-fee in such petition is not legal.

11. One set of court-fee is payable by several petitioners only when inter se the
petitioners a jural relationship subsists i.e. association of persons registered as a firm or
incorporated company etc. or in the case of public injury leading to public interest
litigation, or in case where series of complained/impugned acts arise out of one action or
order.

12. In view of what has been discussed above, the objection sustains and the petitioners,
who have jointly filed petition, are liable to pay separate court--fee.

M.H./Z-17/L Objection sustained.

Page No. 4 of 4
P L D 1986 Peshawar 72

Before Inayat Elahi Khan and Ali Hussain Qazilbash, JJ

ARBAB GHULAM ALI KHAN AND 14 OTHERS-Petitioners

versus

ARBAB MUHAMMAD HUSSAIN (REPRESENTED By LEGAL HEIRS) AND 14


OTHERS -Respondents

Civil Revision No. 182 of 1984, decided on 3rd December, 1985.

(a) Civil Procedure Code (V of 1908)-

-- S. 115-Revision, competency of --Demanding additional court fee on plaint-Effect-


Order demanding court-fee on plaint if not complied with would non-suit plaintiff-Such
order not being in favour of plaintiff, held, was in nature of "case decided' and revision
was competent in circumstances.

Messrs Gupta & Co v. Messrs Kirpa Ram Brothers A I R 193S All. 620 ; Fazal
Muhammad v. Muhammad Usman P L D 1970 Lah. 560 ; P L D 1962 Pesh. 156 and S.
Zafar Ahmad v. Abdul Khaliq P L D 1964 (W. P.) Kar. 149 ref.

(b) North-West Frontier Province Court Fees (Abolition) Ordinance (XIV of 1978)-

- S. 2-Civil Procedure Code (V of 1908), S. 115 & O. I, r. 3 Filing of one suit against
several defendants claiming separate amounts-Determination of court-fee-Where several
suits could be instituted for each one of amounts claimed against defendants, each item of
compensation whereof being below exempted amount, plaintiff would not have been
liable to pay court-fee-Mere fact of taking advantage of O. I, rr. 1 & 3, C. P. C., held,
would not deprive plaintiffs of benefits to which such plaintiff would be otherwise
entitled under provisions of Ordinance XIV of 1978-High Court in exercise or revisional
jurisdiction set aside order of Lower Court demanding additional court-fee in
circumstances.-[Court-fee].

A I R 1954 Mad. 594 ; A I R 1953 Mad- 881 ; A I R 1935 Cal. 573 ; A I R 1973 Pat. 356
and A I R 1935 Cal. 573 ref.

Ava A. Cowasjee and others v. Nasreen Nizam Shah and others 1984 C L C 2705 fol.

Mian Muhammad Younis Shah for Petitioners.

Khan Bahadur Khan for Respondents.

Date of hearing: 25th November, 1985.

JUDGMENT

INAYAT ELAHI KHAN, J,-The facts relevant to this revision petition are that Arbab
Ghulam Ali Khan and others (petitioners) instituted a suit against Arbab Muhammad
Hussain and others (respondent.) seeking a declaration that in the Shamilat land of village
Tehkal Bala measuring 7264 Kanals 18 Marlas they were entitled to 2/3 share as the legal
hers of Abdullah Khan and were also entitled to the same share in the compensation
awarded by the Collector Land Acquisition and in the remaining Shamilat of the village
they were entitled to I/3 share. They also prayed for a permanent injunction that the
defendants may be restrained from interfering in their rights Certain specific amounts of
the compensation from each one of defendants 1 to 21 were also claimed which they had
received from the Collector Land Acquisition. The value of the suit for the purposes of
court-fee was fixed by the plaintiffs at Rs. 1,12,400. They also paid court-fee on the
reliefs regarding declaration and injunction but no court-fee was paid on the relief
whereby specific amounts were claimed from each one of defendants 1 to 21 as every

Page No. 1 of 4
item of the compensation fell below Rs. 25,000. On 15-5-1984 the learned trial Court,
after hearing the parties on the question of court-fee, ordered that the value of the suit for
the purposes of court-fee should also have been fixed at Rs. 1,12,400 and since the total
amount of the compensation claimed in the plaint exceeded Rs. 25,000 the plaintiffs were
bound to affix the court fee thereon. The aforesaid order of the learned Senior Civil
Judge, Peshawar is impugned in this revision.

2. The learned counsel for the respondents raised a preliminary objection about the
competency of the revision on the ground that the impugned order of the trial Court
demanding additional court-fee was not a `case' decided within the meaning of section
115 of the Civil Procedure Code and hence no revision was competent. Reliance is placed
on a Full Bench decision to Messrs Gupta & Co. v. Messrs Kirpa Ram Brothers (A I R
1934 All. 620) and Fazal Muhammad v. Muhammad Usman (P L D 1970 Lah. 360). In
the former case it was held than. a mere decision. given by Court in the trial of a suit as to
the amount of the court-fee payable does not amount to a `case decided" nor is it
necessarily an irregularity in procedure or illegality or a refusal to exercise jurisdiction
and, therefore, no revision on such a decision is competent. However, it may be
mentioned that after the aforesaid Full Bench decision it was held in A I R 1949 Nag. 4.
by placing reliance on a Full Bench decision in 1938 Nagpur 122, that the rejection of the
plaint hat not yet taken place though the learned Judge expressing himself inaccurately
said that he has rejected the plaint and that unless the court-fee is paid the suit will also be
rejected. Since the rejection of the plaint ha not taken place under Order VII, rule 11, C.
P. C , a revision was competent under dictum of the Full Bench reported in A I R 1938
Nag. 122. The application for revision was, therefore, allowed. Reference can also be
made to A I R 1949 Nag- 37, wherein it was held that an order demanding additional
court-fee is revisable and this is bled on the principle that unless court-fee demanded is
paid, there is a refusal on the part of lower Court to exercise jurisdiction which is vested
in it to decide the suit. Consequently, the question of jurisdiction is involved and if the
case is decided against the plaintiff, it is revisable under suction 11.5, C.P.C. The other
case reported in P L D 1970 Lah. 560 relied upon is also of no help to the learned counsel
of the respondents wherein by reference to P L D 1962 Pesh. 156 it was observed that a
decision on the question of court-fee given by a Court in favour of the plaintiffs is not a
"case decided" within the meaning of section 115, C. P. C. and, therefore, such a decision
is not revisable unless the said decision had resulted in the subordinate Court exercising
jurisdiction not vested in it or in failure to exercise jurisdiction vested to it. It is obvious
that in the case in hand the decision on the question of court-fee was not given in favour
of the plaintiffs and hence they have come in revision. Had the decision on the question
of court-fee been in favour of the plaintiffs, an objection to the competency of the
revision could be taken as in that case the decision would not have amounted to a "case
decided" within the meaning of section 115, C. P. C. Reference with advantage may also
be made to a Full Bench decision reported as S. Zafar Ahmad v. Abdul Khaliq (P L D
1964 (W. P.) Kar. 149) wherein it was held that an interlocutory order may amount to a
"case decided" provided it is covered by the provisions of section 115 C. P. C. It was held
that the word "case' as used in section 115 is intended to cover "any state of facts
jurisdically considered", and not necessarily the whole cause or matter in dispute. Thus
even an interlocutory order would be revisable if the ingredients of section 115, C. P. C,
are satisfied. If the Court acts illegally or with material irregularity in determining the
question of court-fee and calls upon the plaintiffs to pay additional court-fee which he is
not legally bound to pay, there could be a ease for interference in revision. In the case in
hand. the order demanding additional court-fee on the plaint if not complied with would
have non-suited the plaintiffs and the order not being in favour of the plaintiffs was in the
nature of a 'case decided' as contemplated by section 115, C. P. C. and hence the revision
has been competently filed. The preliminary objection is, therefore, overruled.

3. Regarding the merits of the case, on behalf of the petitioners reliance is placed on
section 17 of the Court Fees Act, 1870, which is to the following effects :-

"Where a suit embraces two or more distinct subjects, the plaint or memorandum of
appeal shall be chargeable with the aggregate amount of the fees to which the plaint or
memorandum of appeal in suits embracing separately each of such subjects would be
liable under this Act."

Page No. 2 of 4
It is contended that the word different subjects used in the section would mean different
causes of action joined together in one suit and since the plaintiffs had claimed separate
and distinct amounts from the defendants the court-fee shall be deemed to be payable on
each one of the items separately even if ultimately a decree for a single consolidated
amount was passed in favour of the plaintiffs because the decretal amount would be
capable of being split up into different parts as claimed against. each one of the
defendants. The scope and effect of section 17 of the Court Fees Act was considered in a
Full Bench decision reported in A I R 1954 Mad. 594 wherein it was held that "Distinct
subjects" in section 17 of the Court Fees Act mean distinct causes of action in respect of
which separate suit should be filed but for the enabling provisions allowing to be clubbed
up in one suit. The distinctness or identity of the cause of the action is the only criterion
for the applicability of the Section. It was also observed that a. simple illustration makes
the meaning of the section clear: A files a suit against B on two promissory notes
executed by B in A’s favour. The value, of the relief in respect of the one promissory note
taken and the court-fee on such value is calculated. Then the value of the relief on the
second promissory note is taken and the court-fee payable on such value is arrived at.
Thereafter the said two sums are added and the total amount is the court-fee payable on
the plaint. The case reported in A I R 1953 Mad. 888 may also be considered wherein by
reference to two earlier decisions reported in A I R 1935 Cal. 573 and A I R 1943 Pat. 356
it was held that:-

"I am inclined to hold that the present form in which the suit stands, the decision of the
learned subordinate Judge that the plaintiffs should be deemed to have asked for nine
separate declarations of the same kind in respect of each of the nine inams, that the suit as
framed embraces distinct subjects and that the Court fee payable as governed by
provisions of section 17 of the Act is justified. His further direction that the plaintiffs
should pay Court fee of Rs. 100 in respect of each one of the nine declarations is also
correct, so long as the frame of the suit remains, what is it".

Incidentally it may be mentioned that in A I R 1935 Cal. 573 it was held that where 73
persons filed a suit in which they prayed for a declaration that each plaintiff bad a
Raiyati-jote interest in one out of 73 plots of land and for a declaration that certain
compromise decree was void and inoperative would mean that there were in effect
prayers for 73 declarations of affecting 73 separate titles and that, therefore, the
proceedings embraced 73 distinct subjects within the meaning of section 17. Hence 73
separate amounts of court-fee were payable.

4. In the case in hand it is obvious that the plaintiffs could have instituted separate suits
for each one of the amount claimed against the defendants and in that case each item of
the 'compensation being below Rs. 25,000 they would not have been liable to pay court-
fee under the amended section 2 of the N.-W. F. P. Court Fees (Abolition) Ordinance.)
1978 (XIV of 1978) which provides that no court-fee shall be payable in any case of civil
nature the value of the subject-matter whereof, or relief claimed wherein, does not exceed
twenty-five thousand rupees. The mere fact that the plaintiff in filing the present suit had
taken advantage of the enabling provisions of Order I, rule 1 and Order I, rule 3, C. P. C.
they could not be deprived of the benefit to which they would be otherwise entitled under
the provisions of N.-W. F. P. Court Fees (Abolition) Ordinance, 1978. In Ava A. Cowasjee
and others v. Nasreen Nizam Shah and others (1984 C L C 2705) it was held that in a suit
embracing several distinct subjects and the plaintiffs making separate clams against the
defendants which were based upon distinct subjects, the plaintiffs were required to value
each subject and to pay court-fee on each relief separately. Keeping in view this principle
it is obvious that every item of the compensation claimed by the plaintiffs against each
ore of defendants 1 to 21 is to be valued for the purposes of court-fee separately and thus
each one of the amounts claimed in the plaint being below Rs. 25,000 would be exempted
from the payment of Court fee.

5. In this view of the matter the impugned order of the learned Senior civil Judge, dated
15-5-1984 demanding court-fee on the aggregate value of the compensation claimed in
the plaint cannot be maintained. The revision petition is, therefore, accepted and the
impugned order demanding additional court-fee from the plaintiffs is set aside. In the
circumstances the parties are left to bear their own costs.

Page No. 3 of 4
A. A. Revision accepted.

Page No. 4 of 4
2010 C L C 1603

[Karachi]

Before Muhammad Ali Mazhar, J

MUHAMMAD SHABBIR---Plaintiff

Versus

Mrs. FARAHA BIBI and 2 others ---Defendants

Suit No.216 of 2007, C.M.A. No.10934 of 2009, decided on 3rd August, 2010.

(a) Specific Relief Act (I of 1877)---

----Ss.12, 8 & 54---Civil Procedure Code (V of 1908), O. VII, R.11---Suit for specific
performance of sale agreement, possession and permanent injunction---Execution of sale
agreement and two receipts of payment through Pay Orders by defendant in favour of
plaintiff---Refection of plaint, application for---Defendant's plea that suit agreement was
cancelled with mutual consent and amount paid to defendant through Pay Orders was
adjusted towards purchase of other property by plaintiff, thus, he had no cause of
action---Validity---Execution of two receipts and receipt of Pay Orders by defendant from
plaintiff gave him a cause of action for filing suit---Court without recording evidence
could not give positive findings that suit was barred by law; and that alleged novation of
contract had taken place---Plaint showed plausible cause of action against defendant,
thus, question as to whether plaintiff would be able to prove same would become
irrelevant---Court at such stage could not base its decision on data provided by
defendant-Such application was dismissed in circumstances.

Ume Aiman and others v. Muhammad Yousuf and others 2002 CLC 1629; Muhammad
Sharif v. Mst Faji and others 1996 CLC 883; Mst Khatoon Begum v. Barkatunnisa.
Begum PLD 1987 Kar. 132 and Raja Muhammad Younis Khan v. Bagga Khan and others
2003 YLR 2797 ref.

Haji Mitha Khan v. Muhammad Younus and others 1991 SCMR 2030; Mrs. Anis Haider
and others v. S. Amir Haider and others 2008 SCMR 236; Haji Allah Bakhsh v. Abdul
Rehman and others 1995 SCMR 459; Abdul Rahman v. Wahid Bakhsh PLD 1977 Lah.
1243; Ghulam Ali v. Asmatullah 1990 SCMR 1630 and Jewan V. Federation of Pakistan
1994 SCMR 826 rel.

(b) Civil Procedure Code (V of 1908)---

----O. VII, R.11(a)---Rejection of plaint---Scope---When plaint disclosed a cause of


action, then question as to whether plaintiff would be able to prove the same would
become irrelevant---Court at such stage could not base its decision on data provided by
defendant.

(c) Specific Relief Act (I of 1877)---

----S.12---Court Fees Act (VII of 1870), S.17 & Sched. I, Art. 1---Civil Procedure Code
(V of 1908), O. VII, R.11---Application of S.17, Court Fees Act, 1870---Scope---Suit for
specific performance of sale agreement mentioned two properties---Plaint showing
payment of maximum court fee thereon by plaintiff---Rejection of plaint, application
for---Defendant's plea that plaintiff claiming specific performance of two different
properties was liable to pay separate court fee thereon---Validity---Applicability of
provisions of S.17 of Court Fees Act, 1870 confined to a suit containing multifarious
causes of action and different reliefs claimed in plaint for purposes of ad valorem court
fee in vogue prior to fixation of maximum limit of court fee for plaint---Maximum court
fee had been affixed on plaint against valuation of suit, thus, provision of S.17 of Court
Fees Act, 1870 would not apply to the present case---Such application was dismissed in
circumstances.

Page No. 1 of 6
Aslam Industries Ltd. v. Pakistan Edible Corporation of Pakistan and others 1993 SCMR
683 fol.

M.A. Khan for Plaintiff.

Imtiaz Ali for Defendants.

ORDER

MUHAMMAD ALI MAZHAR, J.---The defendants Nos.1 and 2, have brought this
application under Order VII, rule 11, C.P.C. for rejection of plaint on the following
grounds:--

(1) That the suit is not maintainable and liable to be rejected as filed by the
plaintiff on the false and fake grounds which does not show any solid reasons.

(2) That the plaintiff has not come with clean hands before the honourable Court.

(3) That the suit is barred by sections 28 and 56 Specific Relief Act and section 17
of Court Fees Act.

(4) That the plaintiff has no power to file the said suit for specific performance of
contract, permanent injunction as he is not a vendee of the sale agreement dated
22-2-2006 and the above suit is liable to be rejected with costs under Order VII,
rule 11, C.P.C.

In support of the application, the defendant No.2 has filed his affidavit and stated that the
instant suit has been filed against the defendants just to misguide this court and the
plaintiff has no right to file the suit as the subject sale agreement dated 22-2-2006 has
been executed between Farah Bibi defendant No.1 and one Muhammad Tayyab, thus the
plaintiff has no concern with this agreement. Further more the said agreement has been
cancelled and the amount paid by Muhammad Tayyab has been adjusted as part payment
in respect of agricultural land. The plaintiff had failed to make balance sale consideration
of the above sale agreement within one month hence the amount was forfeited. In sale
agreement dated 18-5-2006, it was decided between both the parties that the agreement.
dated 22-2-2006 stands cancelled and there is no further dues against the vendor. Since
the above agreement had already been cancelled the plaintiff has no right to file the suit
for specific performance of contract.

The plaintiff has filed objections to the application and relied upon the contents of the
plaint and stated that the case is one of specific performance, permanent injunction and
possession against the receipt of consideration by the defendants. The introductory
description of the plaintiff as incorporated in paragraph 2 of the plaint clearly transpires
that the plaintiff is nominee of the person entered into an agreement of sale dated 22-2-
2006. The receipts of payment of Rs.15,50,000 and Rs.2,25,000 annexures H-1 & H-2 to
the plaint were duly executed by the defendant No.1 and witnessed by the very same
person who had entered into the initial agreement on behalf of plaintiff.

I have heard the learned counsel for the parties and perused the material available on
record as well as gone through the case-law relied upon by the learned counsel
represented the parties. The learned counsel for the defendants Nos.1 and 2 argued
that the suit is barred under sections 48 and 56 of the Specific Relief Act and section
17 of Court Fees Act. The learned counsel argued that the plaintiff has no authority
to institute the suit but at the same time he laid much emphasis that the agreement
dated 26-2-2006 was cancelled in lieu of agreement dated 18-5-2006, which was
entered into between the defendant No.1 and the plaintiff himself and the amount
which was paid by Muhammad Tayyab, had been adjusted as part payment in
respect of agricultural land measuring 40 acres at Deh Okar and 40 acres at Deh
Robar in District Gwadar, Tehsil Jiwani for a total sale consideration of Rs.
1,60,00,000. In order to prove_ the contention, the learned counsel also invited the
attention of this Court to annexure P/1 attached to the supporting affidavit of the

Page No. 2 of 6
application moved under Order VII, Rule 11, C.P.C. So far as the legal provisions
are concerned, section 48 of the Specific Relief Act has no applicability in the
present proceedings and so far as section 56 in concerned, it can only be considered
keeping in view the contents of the plaint and unless the entire contents of the plaint
are not thrashed out, no positive finding can be given whether section 56 is
applicable in the 'facts and circumstances of the case or not. In addition to above,
learned counsel further relied upon section 17 of the Court Fees Act, which relates
to the multifarious suits and according to him the plaintiff has claimed specific
performance of two different properties, therefore, separate Court Fees should have
been paid or affixed on the plaint. Learned counsel further argued that by execution
of subsequent agreement between defendant No.1 and the plaintiff, the earlier
agreement was superseded and in fact it is the case of novation of contract. The
learned counsel in support of the arguments relied upon the following judgments:--

(1) Ume Aiman and others v. Muhammad Yousuf and others 2002 CLC 1629.
This judgment has been relied upon in the context that while deciding the
application under Order VII, rule 11, C.P.C., this court may also look into the
contents of the Written Statement/affidavits, in appropriate cases. In the
present case, the application was filed on the ground that the matter involved
in the present controversy has already been resolved earlier between the same
parties, therefore the suit was hit by principle of res juducata. The learned
Single Judge of this Court has observed that ingredients of section 11, C.P.C.
are not attracted to the fats of the matter as the parties have never litigated in
any adverse capacity previously other than in RA No.52 of 1974 for the first
time in October, 1984 which in any event did not result in any final
adjudication of their rights and obligations. In this case, the application was
dismissed, however the learned Single Judge has observed that there is no
cavil to the settled law that in appropriate cases, even the contents of Written
Statement/affidavits may be looked into while considering application under
Order VII, rule 11, C.P.C.

(2) Muhammad Sharif v. Mst. Faji and others 1996 CLC 883. In this
judgment, the learned Single Judge of Lahore High Court has observed that
terms of agreement clearly stated that on failure of plaintiff to perform his
part of contract, earnest amount paid by him would stand forfeited. First
Appellate Court had rightly found that time was essence of contract and
plaintiff had failed to perform his part of contract. Judgment and decree
rendered by First Appellate Court was affirmed while that of trial Court
decreeing plaintiff's suit was set aside in circumstances.

(3) Mst Khatoon Begum v. Barkatunnisa Begum PLD 1987 Kar. 132. This
judgment relates to section 62 of the Contract Act which provides that
substitution of a new contract is the core of novation. Its essential feature is
that a rights under the original contract is extinguished and new rights
referable to new contract are created. The substituted contract therefore, must
be a valid and enforceable contract to be effective as novation. If the new
agreement or contract suffers from legal flaw such as want of registration,
stamps etc., on account of which it becomes unenforceable, the original
contract will not be extinguished and the rights and liabilities of the parties
will be determined on that basis.

In response to the arguments advanced by the learned counsel for the defendants
No.1 and 2, the learned counsel for the plaintiff argued that the plaintiff has
perfectly disclosed the cause of action in the plaint in sequence and from a bare look
of the contents of the plaint, it is manifestly clear that the plaintiff has a cause of
action against the defendants and for the purposes of the decision under Order VII,
rule 11, C.P.C., it is well-settled and old age golden principle that only the contents
of the plaint may be looked into without any extraneous consideration and even, the
court may not see the Written Statement/affidavits etc. filed by the defendants. The
learned counsel further argued that the plaintiff has without any concealment or
suppression clearly disclosed that he was the nominee of Muhammad Tayyab, who
signed agreement with the defendant No.1 for the land situated at Deh Gujro, KDA

Page No. 3 of 6
Scheme No.33 and residential House No.R-23 measuring 120 sq. yds. situated at Pioneer
Fountain, KDA Scheme No.33, Karachi. He admits that though initial agreement was
signed between Mrs. Farah Bibi and Mr. Muhammad Tayyab, but the same vendor issued
two receipts in the sum of Rs.5,5,000 and Rs.2,25,000 respectively for the subject
properties and besides two receipts, the learned counsel also invited the attention of the
Court to the ,copies of two pay orders containing the same amount which were issued to
the defendant No.1 from the account of the plaintiff. Copies of receipts and pay orders are
attached with the plaint. The learned counsel argued that the plaintiff is the nominee of
Muhammad Tayyab but subsequently he has paid the substantial amount to the defendant
No.1 directly which was fully acknowledged and receipts were issued for the same
properties, hence it is proved that the plaintiff has vested right to file the suit even on the
strength of the receipts any pay orders attached with the plaint which are not disputed
documents. Whether the plaintiff has a right to file the suit or not, this question can only
be resolved after adducing evidence by the parties even the defendant No.1 herself filed
copy of agreement which was allegedly signed between the plaintiff and defendant No.1,
whereby the earlier agreement dated 22-2-2006 was cancelled and the defendant No.1
also pleaded the novation of contract. All these complicated questions can only be
resolved after recording evidence in the matter therefore, the application under Order VII,
rule 11, C.P.C. is not maintainable and is liable to be dismissed. In support of his
arguments, the learned counsel for the plaintiff relied upon a judgment reported in Raja
Muhammad Younis Khan v. Bagga Khan and others 2003 YLR 2797 in which, it has
been held that the Court has to confine itself only to the averments made in the plaint and
has to take the contents thereof to be true and cannot go beyond the same. If, however, on
taking the averments made in the plaint the Court finds the plaint to be barred by law, the
Court can reject the plaint but cannot do so by resolving the contested facts. The plaint
can only be rejected where its perusal shows that the relief claimed by the plaintiff was
barred under any provision of law or a suit on the basis of it was incompetent.

Keeping in view the pros and cons of the matter, in all conscience I am of the view that
the execution of two receipts and receipt of pay orders by the defendant No.1 from the
plaintiff gives him a cause of action of filing the present suit. The defendant No.1 has
also attached a copy of agreement executed between the defendant No.1 and the plaintiff
which shows some sort of novation between the parties, therefore at this stage no positive
finding can be given that the suit is barred by law. In order to sift grain from the chaff, it
is necessary that parties should lead evidence in support of their pleadings and unless the
evidence is record, Court cannot reach to the proper conclusion. The honourable Supreme
Court in its judgment reported in Haji Mitha Khan v. Muhammad Younus and others
1991 SCMR 2030 has held that the test of cause of action is that if what plaintiff has
stated is taken to be correct, is he entitled to relief or not. In another judgment reported in
Mrs. Anis Haider and others v. S. Amir Haider and others 2008 SCMR 236, the
honourable Supreme Court has held that pleadings of parties could not be taken as
evidence particularly when its maker was not even examined in its support and cross-
examined by his opponent. Order VII, rule 11, C.P.C. can be attracted only when a plaint
itself does not disclose any cause of action. It cannot be rejected on the basis of Written
Statement because the initial burden remains on the plaintiff to prove his case on the basis
of assertions made in the pleadings. If the principle in hand adopted by the Courts below
is endorsed, it would be the easiest thing to dismiss any civil suit simply and merely on
the basis of written statement. In another judgment reported in Haji Allah Bakhsh v.
Abdul Rehman and others- 1995 SCMR 459, the honourable Supreme Court has held that
in order to press into service the provisions of Order VII, rule 11, C.P.C., the averments
contained in the plaint are to be presumed to be correct. On the above assumption, the
plaint is to be examined and if the case falls under any of the clauses (a), (b), (c) and (d)
of rule 11, C.P.C., the plaint is liable to be rejected. According to one more judgment
reported in Abdul Rahman v. Wahid Bakhsh PLD 1977 Lah. 1243, the word "cause of
action" means bundle of facts which if traversed, a suitor claiming relief is required to
prove for 'obtaining judgment. Nevertheless, it does not mean that even if one such fact, a
constituent of cause of action is in existence, the claim can succeed. The totality of the
facts must co-exist and if anything is wanting the claim would be incompetent. A part is
included in the whole but the whole can never be equal to the part. It is also well
understood that not only the party seeking relief should have a cause of action when the
transaction or the alleged act is done but also at the time of the institution of the claim.
For example, there may be a case where at the time when an action is brought, there is no

Page No. 4 of 6
right to seek the remedy though the remedy was available when the right was infringed. A
suitor is required to show that not only a right has been infringed in a manner to entitle
him to a relief but also that when he approached the Court the right to seek the relief was
in existence. Similarly the Privy Council in another case had summed up that cause of
action means every fact which will be necessary for the plaintiff to prove if traverse in
order to support his right to judgment. It has no relation to the defence that may be set up
nor does it depend upon the character of the relief prayed. In another judgment reported
in Ghulam Ali v. Asmatullah 1990 SCMR 1630, the honourable Supreme Court has held
that assertion made in the plaint had to be seen for the purposes of determining whether
plaint disclosed any cause of action. Lack of proof or weakness of proof in
circumstances of the case did not furnish any justification for coming to conclusion
that there was no cause of action shown in the plaint. In another judgment reported
in Jewan v. Federation of Pakistan 1994 SCMR 826, the honourable Supreme Court
has held that while taking action for rejection of plaint under Order VII, rule 11,
C.P.C., the Court cannot take into consideration pleas raised by the defendants in the
suit in his defence as at that stage the pleas raised by the defendants are only
contentions in the proceedings unsupported by any evidence on record. However, if
there is some other material before the Court apart form the plaint at that stage
which is admitted by the plaintiff, the same can also be looked into and taken into
consideration by the Court while rejecting the plaint.

In my view the contents of the plaint are showing plausible cause of action against
the defendants. The case law relied upon by the learned counsel for the defendants
No.1 and 2 are distinguishable in the facts and circumstances of this case. One
judgment related to Order VII, rule 11, C.P.C. in which the learned Single Judge of
this Court has observed that while deciding the application, the contents of the
Written Statement may be looked into but the facts and circumstances of that case
were distinguishable on the ground that the rejection was claimed on the basis of res
judicata. The learned Single Judge of this Court had dismissed the application under
Order VII, rule 11, C.P.C. on the ground that the contents of the planit were not
showing any res judicata between the parties. The next judgment relates to the
novation of contract. Whether novation took place or not, again it is a matter of
evidence and the plaintiff has claimed the specific performance as nominee of
Muhammad Tayyab and created his right on the basis of two receipts issued by the
defendant No.1 in his name and in order to show t his bona fide, he has also
attached copies of two pay orders and the receipts showing cause of action against
the present defendants for the purposes of specific performance of the contract.
Where a cause of action is disclosed, the question as to whether the plaintiff will be
able to prove it is irrelevant and at the preliminary stage it is not permissible to base
the decision on the data provided by the opposite party. Whether the plaintiff has
any legal character or locus standi to file the suit, whether he has any privity of
contract or whether he is bound by the alleged novation of contract or the earlier
agreement was superseded/cancelled, all these bare bones of the matter require
factual investigation and cannot be proved unless appropriate issues are framed and
parties are given ample opportunity to lead evidence. So far as section 17 of the
Court Fees Act is concerned, it is also not applicable in the present situation.
Provisions of section 17 applies to the suits which embrace two or more distinct
cause of action. When a suit is filed combining multifarious causes of action then
each claim on the basis of causes of action is to bevalued separately and requisite
fee is to be paid on it. In fact the applicability of section 17 is confined to the
different reliefs claimed in the plaint for the purpose of ad valorem court fee in
vogue prior to the fixation of maximum limit of court-fee for the plaint. The
honourable Supreme court has already considered section 17 of the Court Fees Act
in its judgment reported in Aslam Industries Ltd. v. Pakistan Edible Corporation of
Pakistan and others 1993 SCMR 683 and held that section 17 of the Court Fees Act
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 Court Fees. Rather, it 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
Schedule. 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,

Page No. 5 of 6
would be Article 1 of Schedule 1. If this Article is applicable, it is to be applied
according to its exact tenor. A maximum ceiling of 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. 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.

The plaint shows that the plaintiff has sought the specific performance on the basis
of agreement dated 22-2-2006 in which both the properties are jointly mentioned
and maximum court fee has been affixed on the plaint against the valuation of Suit
so in my view apart from the detailed judgment of the honourable Supreme Court
clarifying the applicability, scope, nature and true intent of section 17 of the Court
Fees Act, this section is even otherwise not applicable in the peculiar circumstances
of the case, therefore the objection of the learned counsel for the defendants No.1
and 2 that the plaint is also hit by section 17 of the Court Fees Act is not sustainable.

The whys and wherefores lead me to a conclusion that the defendants Nos. 1 and 2
have failed to convince the Court by any cogent or plausible justification warranting
the rejection of plaint. The application under Order VII, rule 11, C.P.C. is dismissed.
The parties are directed to file their proposed issues so that the matter may be
decided on merits.

S.A.K./M-117/K Application dismissed.

Page No. 6 of 6
2008 C L C 27

[Karachi]

Before Nadeem Azhar Siddiqi, J

MUHAMMAD MOHIUDDIN----Petitioner

Versus

SINDH PRIVATIZATION COMMISSION and another----Respondents

J.M. No.Nil of 2006, decided on 28th September, 2007.

(a) Sindh Privatization Commission Ordinance (XXV of 2001)---

----Ss. 3, 27 & 28---Auction of land by Privatization Commission---Judicial


miscellaneous application by bidder before High Court seeking transfer of such land in
his favour by Commission---Maintainability---Sindh. Privatization Commission
Ordinance, 2001 had not created any Special Court---High Court by virtue of S.28 of
Sindh Privatization Commission Ordinance, 2001 while exercising civil jurisdiction
would follow procedure as nearly as possibly as provided in C.P.C., and having regard to
facts of case could follow summary procedure as provided in O.XXXVII, C.P.C.---
Procedure of filing regular suit could not be dispensed with on account of applicability of
C.P.C.---Such judicial miscellaneous application was not maintainable---Principles.

Section 27 of the Sindh Privatization Commission Ordinance, 2001 provides that High
Court should exercise exclusive civil and criminal jurisdiction. Section 28 of the
Ordinance provides that in exercising of civil jurisdiction the High Court shall follow the
procedure as nearly as possible, as provided in the Civil Procedure Code, 1908 and in its
discretion., having regard to the facts of the case shall follow the summary procedure as
nearly as possible provided under Order XXXVII, C.P.C. Since the Civil Procedure Code
is made applicable the procedure for filing of regular suit cannot be dispensed with.
Order IV, rule 1, C.P.C. provides that every suit shall be instituted by presenting the plaint
to the court or such officer, as it appoints in this behalf. Rule 2 of Order IV, C.P.C.
provided that every plaint shall comply with the rules contained in Orders VI and VII,
C.P.C. so far as they are applicable. The procedure for filing regular suit is also confirmed
by application of Order XXXVII, C.P.C, which also provides for filing of suit. So far as
the filing of application under section 12(2), C.P.C. is concerned; the law itself provides
for filing of application. So far as various applications under Arbitration Act, 1940 are
concerned, section 20 thereof provided for filing of application and section 33 thereof
also speaks about filing of application to contest arbitration agreement or award. Section
32 of the Arbitration Act, 1940 bars the filing of suit for contesting arbitration agreement
or award.

No Special Court has been created under the Sindh Privatization Commission Ordinance,
2001.

High Court, returned judicial miscellaneous application to the petitioner for


presenting/filing it before the competent court' in accordance with law.

United Bank Limited v. Messrs J. Tylor & Co. Limited 2002 CLD 917 and Sheikh Fazal
Rehman & Sons Limited v. Ghee Corporation of Pakistan 2003 CLC 1823 ref.

(b) Sindh Privatization Commission Ordinance (XXV of 2001)---

----Ss. 3, 27 & 28---Court Fees Act (VII of 1870), S.17 & First Sched. Art.1, Sr. No.1---
Auction of five different lots of lands by Privatization Commission---Suit by plaintiff
seeking transfer of such lands in his favour by Commission---Court-fee, leviability of---
Plaintiff had made five different offers for five different lots of lands---Every bid was a
distinct transaction---Court-fee would be payable on basis of valuation of subject of
suit---Maximum court-fee of Rs.15,000 would be payable on such suit.

Page No. 1 of 4
Aslam Industries Ltd., Khanpur v. Pakistan Edible Corporation 1993 SCMR 683 fol.

M.G. Dastagir for Petitioner.

Zafar Ahmed Khan for Respondent No.1.

Ch. Muhammad Rafiq Rajorvi, Addl. A.-G., Sindh for Respondent No.2.

ORDER

NADEEM AZHAR SIDDIQI, J.--- The petitioner has filed this Judicial Miscellaneous
Application under the provisions of the Sindh Privatization Commission Ordinance
No.25 of 2001 (hereinafter referred to as the Ordinance) with the prayer to direct the
respondents to transfer 75 acres of land situated at Gadap Town to the petitioner.

The office has raised the following objections:---

"(1) The petitioner has filed the petition under section 27 of the Sindh
Privatization Ordinance No.25 of 2001, by way of judicial miscellaneous instead
of filing a suit in view of the order dated 27-3-2003, passed by the Honourable
Division Bench in C.P.'No.D-983 of 2000. Affixing the court-fee of Rs.10 only
instead of payment of separate court-fees in respect of five lots of land each
measuring 15 Acres situated at Gadap, Karachi as averred in para.2 of the petition,
and copies of the bid forms as per Annexures "P.3" to "P.7" at pages 43 to 51 as
provided under section 17 of the Court Fees Act in respect of each five lots of
land and photocopy of order dated 27-3-2003 passed by the Honourable Division
Bench in C.P. No.D-983 of 2000 is enclosed herewith for favour of perusal.

(2) Let the list of legal heirs of the petitioner be filed."

According to the office objections, the petitioner has to file a regular suit and has to pay
court-fees in accordance with section 17 of the Court Fees Act. The learned counsel for
the petitioner filed reply to the objections.

Mr. M.G. Dastagir, learned counsel for the petitioner submits that the said Ordinance is
special law and an exclusive jurisdiction was conferred upon the High Court to adjudicate
and settle all matters under the Ordinance. He submits that the instant application is
Judicial Miscellaneous Application like an application under section 12(2), C.P.C. and
various applications under the provisions of Arbitration Act, 1940, and other laws and is
to be treated as an application under special law and no advolorum court-fee is payable.
He relied upon the case of United Bank Limited v. Messrs J. Tylor & Co. Limited 2002
CLD 917 and Sheikh Fazal Rehman & Sons Limited v. Ghee Corporation of Pakistan
2003 CLC 1823. He further submits that even if the application is treated as suit
maximum court-fees of Rs.15,000 is sufficient. He relied upon the case of Aslam
Industries Limited, Khanpur v. Pakistan Edible Corporation 1993 SCMR 683.

Mr. Rafiq Rajorvi, learned Additional Advocate-General supports the objections raised by
the office and submits that the dispute is to be adjudicated on the original civil
jurisdiction of the High Court and a regular suit has to be filed and since the suit was filed
on distinct cause of action. Court fees is payable in accordance with section 17 of Court
Fees Act.

Mr. Zafar Ahmad Khan learned counsel for the respondent No. 1 while adopting the
arguments of learned Additional Advocate-General submits that the relief in the nature of
specific performance has been prayed and that relief cannot be granted in the proceedings
of summary nature. He submits that since the provisions of C.P.C. was made applicable
the filing of suit by way of presenting the plaint is must and the present judicial
miscellaneous is not maintainable.

I have heard the learned counsel for parties and perused the record and the case-law cited
by the learned counsel for the parties.

Page No. 2 of 4
Section 27 of the Ordinance provides that High Court should exercise exclusive civil and
criminal jurisdiction. Section 28 of the Ordinance provides that in exercise of civil
jurisdiction the High Court shall follow the procedure as nearly as possible, as provided
in the Civil Procedure Code, 1908 and in its discretion, having regard to the facts of the
case follow the summary procedure as nearly as possible provided under Order XXXVII,
C.P.C. Since the Civil Procedure Code is made applicable the procedure for filing of
regular suit cannot be dispensed with. Order IV, rule 1, C.P.C. provides that every suit
shall be instituted by presenting the plaint to the Court or such officer, as is appointed in
its behalf. Rule 2 of Order IV provides that every plaint shall comply with the rules
contained in Orders VI and VII so far as they are applicable. The procedure for filing
regular suit is also confirmed by application of Order XXXVII, C.P.C, which also
provides for filing of suit. Regarding the filing of application under section 12(2), C.P.C.
is concerned, the law itself provides for filing of application. As far as various
applications under Arbitration Act are concerned, section 20 of the Arbitration Act
provides for filing of application and section 33 of the Arbitration Act also speaks about
filing of application to contest arbitration agreement or award. Section 32 of the
Arbitration Act bars filing of suit for contesting arbitration agreement or award. The first
case cited by Mr. M.G. Dastagir relates to the case under Banking Companies (Recovery
of Loans, Advances, Credits and Finances) Act, 1997 and in that case with reference to
special law it was held that where a special law confers exclusive jurisdiction on Special
Court or forum created for the purpose then ordinary jurisdiction conferred under the
general law would not be available. In the present case, no Special Court was created
under the said Ordinance therefore the principle laid down in that case is not available. In
the case of Ghee Corporation the Lahore High Court has converted a writ petition into
petition under section 28 of the Ordinance for the reason that the petition was filed in the
year 1995 and the Privatization Commission Ordinance came into existence in 2000. The
learned author has not considered the implications of sections 28 and 29 of the Ordinance
which provide that the High Court shall exercise exclusive civil and criminal jurisdiction.
In my humble view the facts of the reported case are distinguishable and are not
applicable to the present case.

The other objection raised by the office is regarding payment of court-fees in accordance
with section 17 of the Court Fees Act. The plaintiff has made five different offers for five
different lots of lands. Every bid is a distinct transaction. No doubt the plaintiff and the
defendants are the sane. The court-fee has to be paid on the basis of valuation of subject
matter of suit. Section 17 of Court Fees Act reads as under:-

"17. Multifarious suits.--- Where a suit embraces two or more distinct subjects,
the plaint or memorandum of appeal shall be chargeable with the aggregate
amount of the fees to which the plaints or memorandum of appeal in suits
embracing separately each of such subjects would be liable under this Act.

Nothing in the former part of this section shall be deemed to affect the power
conferred by the [Code of Civil Procedure, 1908 (Act V of 1908)] section 9."

In the reported case of Aslam Industries Ltd. Khanpur v. Pakistan Edible Corporation of
Pakistan 1993 SCMR 683, the Honourable Supreme Court has held as under:---

"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."

Keeping in view the observation of the Honourable Supreme Court the maximum court-
fee of Rs.15,000 is payable.

The objections are upheld and the judicial miscellaneous application is returned to the
petitioner for presenting/filing the same before the competent Court in accordance with
law.

S.A.K./M-152/K Application returned.

Page No. 3 of 4
P L D 2007 Karachi 224

Before Anwar Zaheer Jamali, Muhammad Mujeebullah Siddiqui and Rahmat


Hussain Jafferi, JJ

UMEED ALI and 12 others---Plaintiffs

Versus

GOVERNMENT OF SINDH and others---Respondents

Suit No.Nil of 1998, decided on 19th December, 2006.

Court Fees Act (VII of 1870)---

----S.17 & Sched. I, Art.1---Sindh Finance Ordinance (VII of 1977), S.2---Sindh Finance
Act (IV of 1990), Ss.4 & 6---Constitution of Pakistan (1973), Arts.2-A & 37(d)---
Multifarious suits---Maximum court fee payable---Plaintiffs jointly maintaining one
suit---Ends of social justice---Question posed in Reference for determination before Full
Bench of High Court was with regard to affixing of maximum Court fee in a suit having
different plaintiffs with distinct subjects---Despite amendment in Court Fees Act, 1870,
made by Ss.4 and 6 of Sindh Finance Act, 1990, thereby repealing earlier amendment in
Art. 1 of Sched. 1 of Court Fees Act, 1870, introduced by S.2 of Sindh Finance
Ordinance, 1977, the position had remained unchanged i.e. maximum court-fee
recoverable was still in the sum of Rs.15,000---In chargeability of court-fee in suits,
reference to Arts.2-A and 37 (d) of the Constitution was also pertinent, as by virtue of the
same, State was obliged to promote ends of social justice by providing inexpensive and
expeditious justice to every citizen of country---Following the guidelines given by
Supreme Court in case titled Aslam Industries (Pvt.) Limited Khanpur v. Pakistan Edible
Corporation and others, reported as 1993 SCMR 683, all questions proposed in Reference
were answered in affirmative by the Full Bench accordingly.

Aslam Industries (Pvt.) Limited, Khanpur v. Pakistan Edible Corporation and others 1993
SCMR 683 fol.

Avan A. Cowasji v. Nasreen Nizam 1984 CLC 2705; I.S. Venkatanarayana Lyer v. The
State of Madras AIR 1953 Madras 888; D. Lakshminarayana Chettiar AIR 1954 Madras
594; AIR 1954 Mad. 602; Federation of Pakistan v. The General Public PLD 1988 SC
645; Government of Sindh and others v. Sharaf Faridi and others PLD 1994 SC 105;
Government of Balochistan v. Azizullah Memon and 16 others PLD 1993 SC 341; Al-
Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabe-ul-Khari and others v.
Federation of Pakistan and others PLD 1996 SC 324; Aftab Shaban Mirani v. President
of Pakistan and others 1998 SCMR 1863; New Jubilee Insurance Company Ltd., Karachi
v. National Bank of Pakistan PLD 1999 SC 1126; Mehram Ali and others v. Federation of
Pakistan and others PLD 1998 SC 1445; Sh. Liagnat Hussain and others v. Federation of
Pakistan PLD 1999 SC 504: Sh. Riazuddin v. Aquilur Rehman Siddiqui v. and 4 others
PLJ 1993 SC 141; Sindh High Court Bar Association Karachi and another v. Islamic
Republic of Pakistan PLD 1991 Kara 178 and Arbab Ghulam Ali Khan v. Arbab
Muhammad Hussain and 4 others PLD 1986 Pesh. 72 ref.

Dr. Mahmood-ur-Rehman Faisal v. Secretary, Ministry of Law and Justice and


Parliamentary Affairs, Government of Pakistan, Islamabad and 6 others PLD 1992 FSC
195 distinguished.

Shafi Muhammadi, Abid Akram, Munir A. Malik along with Adnan Chaudhry, B.M.
Bangesh, Mazhar Ali B. Chohan, Amir Malik. K.A. Wahab for Plaintiffs.

Anwar Mansoor Khan, A.-G. Sindh, Muhammad Ali Sayeed and Iqbal Kazi as Amicus
Curiae.

ORDER

Page No. 1 of 9
ANWAR ZAHEER JAMALI, J.---This Full Bench has been constituted to answer the
questions proposed in the Reference dated 17-5-1999 made by our learned brother Ata-
ur-Rehman, J. (as he then was), which reads as under:

"These are three suits bearing Nos. Nil of 1998 filed by Muhammad Hussain & 55
others, Chakar Khan and 25 others and timed Ali and 12 others whereon the office
inter alia, raised following objection:

"(1) The plaintiffs have been allotted separate leases hence separate court fees for
each plaintiff to be filed or separate suit of each plaintiff to be filed."

2. On this office objection, the counsel for the plaintiffs and defendants have
made their respective submissions. The learned counsel for the plaintiffs has
contended that the controversy with regard to payment of Court-fee has arisen in
view of an order dated 26-1-1998 passed by Mr. Abul Inam, J., as he then was, in
Suit No.1553 of 1997; the learned Judge has observed that where more than one
plaintiffs file a suit then in terms of section 17 of the Court Fees Act, 1870, each
plaintiff has a different cause of action and as such the Court Fees on all the
causes of action accruing to each plaintiff distinctly is to be added up together and
so affixed. This order of Mr. Abul Inam, J, was confirmed in High Court Appeal
No.15 of 1998 through order dated 3-4-1998 passed by a Division Bench
comprising Mr. Wajihuddin Ahmed, CJ., as he then was, and Mr. M. Roshan
Essani, J. The learned counsel for the plaintiff states that both the orders of the
Single Judge as also the Division Bench are not correct, as they have been
delivered without taking into account the operative statute as also the authoritative
pronouncement of the Supreme Court on the point i.e. Court Fee (Sindh
Amendment) Ordinance, 1977, reported in PLD 1977 Sindh Statutes 98; and
Aslam Industries Ltd., Khanpur v. Pakistan Edible Corporation and others (1993
SCMR 683).

3. Stating succinctly, the contention of the learned counsel for the plaintiff arc as
follows:--

(i) Under section 17 of the Court Fees Act, which deals with multifarious suits,
the Court has to sec as to whether a plaint embraces two or more "distinct
subjects". The term "distinct subjects" according to the preponderant view from
the Indian jurisdiction means "distinct causes of action." Accordingly, the Court
does not have to look into the number of parties but the number of causes of
action;

(ii) under the said section 17 the court fee has to be calculated in a manner that the
court fee of every individual cause of action is to be then added up to together into
an "aggregate amount" and then affixed with the plaint;

(iii) however, the above is subject to the rider that the maximum court fee in any
event cannot exceed Rs.15,000, since such is the maximum ceiling prescribed by
section 2 of the Court Fees (Sindh Amendment) Ordinance, 1977 (cited supra).
Furthermore, the Supreme Court in the case of Aslam Industries (also cited supra)
categorically holds that no doubt the exercise of calculating the aggregate court
fee in terms of different causes of action is to be undertaken u/s. 17, however, in
no case such aggregate court fee could exceed the maximum statutory ceiling i.e.
Rs.15,000.

(iv) the decision of this Court authored by a Single Judge i.e. K.A. Ghani, J., as he
then was, in Ava A. Cowasjee v. Nizam Shah, 1984 CLC 2705, which contains
conclusions similar to the order of Mr. Abdul Inam, J., in suit No.1553 of 1997
has been disapproved or even tacitly overruled by the Hon'ble Supreme Court in
Aslam Industries.

(v) the court can examine the plaint and can determine as to whether the plaintiffs
can jointly maintain a suit under Order I rule 1 of the CPC, however, once it is
decided that under such provision of law a single suit is maintainable, the

Page No. 2 of 9
maximum court fee cannot go beyond the statutory ceiling by Rs.15,000.

4. The learned counsel for the defendants contended that the order passed by the
learned Single Judge was later on confirmed in High Court Appeal by a Division
Bench of this Court. According to them, the two Courts considered the provisions
of section 17 and thereafter adjudicated upon the similar objection. They
contended that there is no room left for not upholding the office objection. They,
however, admitted that the two Courts have not considered the provisions of
Court Fees (Sindh Amendment) Ordinance, 1977 and the case of Aslam Industries
which has not cited with approval the view of the Single Judge of this Court in
case of Ava A. Cowasjee.

5. I considered the arguments advanced by the learned counsel for the plaintiffs
and defendants and heard both the parties at length on a number of dates. Prima
facie, it is correct that none of the orders of the learned Single Judge in Suit
No.1553 of 1997 and of the Division Bench in H.C.A. No.15 of 1998 have
considered the Court Fees (Sindh Amendment) Ordinance, 1977, prescribing the
maximum ceiling, and the Judgment of the Supreme Court in Aslam Industries.
The learned counsel for the plaintiffs has vehemently made an attempt to persuade
me that the orders of the Single Judge and the Division Bench are to be ignored as
per incuriam, having been rendered in ignorance of statute and the binding
pronouncement of this Court. In this regard, reliance is placed on the case of
Abdul Razzak v. Collector of Customs (1995 CLC (Karachi) 1453) wherein it has
been observed that judgments which are per incuriam do not bind any court and
"it mattes little that such Court itself be at the lowest rung in the hierarchy of
Courts. Be that as it may, the better course in the facts and circumstances is to
refer the matter to the Hon'ble Chief Justice for constitution of a larger Bench to
resolve this issue. In doing so I am guided by the Hon'ble Supreme Court in Multi
Line Associates v. Ardeshir Cowasjee (PLD 1995 SC 423 at pp.43 AA, 435B and
435C).

6. In the light of the above discussion, the matter is referred to the Hon'ble Chief
Justice for constitution of a larger Bench to resolve this controversy, which is of
paramount public importance. The precise terms of reference are humbly
proposed as follows:

(i) Whether the term "subjects" appearing in section 17 of the Court Fees Act,
1870 is amenable to the same connotation as the terms "cause of action"?

(ii) Whether the court fee is to be calculated on the plaint or pleading in relation to
"distinct subjects", irrespective of the number of parties to the case?

(iii) Whether the aggregate Court-fee calculated under section 17 of the Court
Fees Act, 1870 is subject to the maximum statutory ceiling of Court-fee of
Rs.15,000, prescribed for the Province of Sindh through the Court Fee (Sindh
Amendment) Ordinance, 1977 reported in PLD 1977 Sindh Statutes 98 read with
the decision of the Supreme Court in Aslam Industries Ltd., Khanpur v. Pakistan
Edible Corporation and others, 1993 SCMR 683?

(iv) Whether the order of the learned, Single Judge in Suit No.1553 of 1997 dated
26-1-1998 and the order of the Division Bench in H.C.A. No.15 of 1998 dated 3-
4-1998, both of this Court, are not the correct pronouncements of law having been
rendered in ignorance of the operative statute i.e. Court Fees (Sindh Amendment)
Ordinance, 1977 and the Judgment of the Supreme Court in Aslam Industries,
having the binding force of law under Article 189 of the 1973 Constitution?

The office is therefore directed to place these matters expeditiously before the
Hon'ble Chief Justice for appropriate orders. The office is further directed also to
place along with the files copies of the orders passed in Suit No.1553/1997 and
R.C.A. No.15/1998."

2. It seems that other suits fixed along with this reference also involve similar

Page No. 3 of 9
controversy as regards payment of proper Court-fee, thus have been tagged with this
reference.

3. With reference to the relevant facts of each case and in the context of various questions
proposed in the reference, we have heard M/s. Munir A. Malik, Abid Akram, Shafi
Muhammadi, B.M, Bungash, Mazhar Ali B. Chohan, K.A. Wahab, and Amir Malik,
Advocates for plaintiffs in various suits, Mr. Anwar Mansoor Khan, Advocate General,
Sindh, and M/s, Muhammad Ali Sayeed and Iqbal Kazi, Advocates as Amicus Curiae.

4. Mr. Munir A. Malik after making brief reference to the relevant facts of the case of
Jamil Ahmed and others v. Province of Sindh and others, wherein he is representing the
plaintiffs in the suit, has contended that the pith and substance of the controversy
involved in this reference has been resolved by the Hon'ble Supreme Court of Pakistan in
the case of Aslam Industries (Pvt.) Limited, Khanpur v. Pakistan Edible Corporation and
others (1993 SCMR 683). To add force to his submission learned counsel has made
reference to Paragraphs. 16 & 17 of the judgment in the said case which read as under:

"16. Under Article 1 of the 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:

S. No. Article Proper Fee


1. Plaint, written statement pleading a Seven-and-half per centrum on the
set-off or counter-claim or memo- amount of value of the subject-matter in
randum of appeal (not otherwise dispute subject to a maximum of fifteen
provided for in this Act) of cross- thousand rupees.
objection presented to any Civil or
Revenue Court except those
mentioned in section 3.

'Note:- me 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 office partaking of the nature of
original proceedings and we have no reasons 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 specially provided for in the Court Fee 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 the 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 1 by being "otherwise provided for in this
Act" that is to say provided for by section 17. Schedule I and II deal 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 appeals "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 t of Schedule I, if it falls under some other specific
Article in any of the Schedules, Schedule II 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

Page No. 4 of 9
amount of the court-fee. Rather, it 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. Ava 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 Stauart, C.J. in Raghobir Sindh's case, "work
so extravagantly 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".

5. Making reference to the other cases viz. Ava A. Cowasjee v. Nasreen Nizam 1984 CLC
2705 and judgment dated 3-4-1998 in H.C.A. No.15 of 1988, containing somewhat
different view in the context of payment of court fee, he urged that these judgments are
per incuriam as the case of Aslam Industries Limited (supra), which is squarely
applicable and covers the controversy as regards payment of proper court-fee was not
brought to the notice of learned Single Judge and the Division Bench passing such orders.
While concluding his submissions, he submitted that it would entirely depend upon the
facts and circumstances of each case that the question of payment of proper court-fee will
be decided on the basis of nature of multifariousness of causes of action, vis-a-vis
subject-matter of dispute, and the causes of action accrued to the parties will be the real
test to decide that if the relief(s) sought is to be granted on the basis of individual
claims(s) of each plaintiff separately then the court-fee would be separately payable by
each plaintiff; but if the relief (s) claimed in the suit is such which is common to the
interest of all the plaintiffs in the suit and grant of relief to one will be applicable in rem
to the claims of' other plaintiffs then maximum payment of court-fee in the sum of
Rs.15,000 will suffice.

6. Mr. B.M. Bangush learned counsel for plaintiff in Suit No.02/1999 (Haji Muhammad
Ibrahim & others v. K.M.C. & others) made reference to the judgment in the case of Dr.
Mahmood-ur-Rehman Faisal v. Secretary, Ministry of Law & Justice and Parliamentary
Affairs, Government of Pakistan, Islamabad and 6 others (PLD 1992 FSC 195) and
contended that in view of this pronouncement by the Federal Shariat Court, no court-fee
could be charged on the plaint. However, learned counsel did not dispute that against
such judgment appeal has been preferred before the Shariat Appellate Bench of Hon'ble
Supreme Court, which is still pending and by virtue of filing of such appeal the operation
of judgment in the case of Dr. Mahmood-ur-Rehman Faisal (Supra) is automatically
suspended.

7. Other learned counsel appearing for the plaintiffs in various suits have adopted the
above-noted submissions of the learned counsel.

8. Mr. Anwar Mansoor Khan, Advocate-General Sindh, in his arguments, also made
reference to the case of Aslam Industries Limited (Supra), and other cases referred and
discussed in Paragraphs 8, 11 to 15 of the said case and contended that the question of
payment of proper court-fee in each case is to be determined on the basis of guidelines
given in this judgment. For citing such cases and the contentions raised therein,
Paragraph No.8 of the judgment referred by learned Advocate General Sindh is
reproduced as under:-

"8. On behalf' of the appellant it is submitted that without challenging in any way
the facts 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

Page No. 5 of 9
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 Reghobir Singh v.
Dharam Kaur ILR 3 All. 108, Kashi Prosad Singh v. Secretary, of State for India-
in-Council (ILR 29 C a l . 140 and C.P. Syndicate Ltd. v. Sardar Naurang Singh
AIR 1950 Nag.189

9. To further fortify his submission, he also made reference to the cases reported as T.S.
Venkatanaryana Lyer v. The State of Madras AIR 1953 Madras 888 and In re: D.
Lakshminaravana Cheetiar AIR 1954 Madras 594. In the case of T.S. Venkatanarayana
Lyer, while dealing with Civil Revision Petition against the order of subordinate Courts
directing the plaintiff to pay enhanced court-fee, learned Single Judge carefully examined
section 17 of the Court Fees Act and held as under:--

"(7). There can be no question in this case that S. 17 of the Act would govern, the
case and the only question then is as to what is the correct interpretation of S.17
of the Act with reference to the facts of the present case. S. 17 of the Act is to the
following effect:

`Where a suit embraces two or more distinct subjects, the plaint or memorandum
of appeal shall be chargeable with the aggregate fees to which the plaint is or
memoranda of appeal in suits embracing separately each of such subjects would
be liable, under this Act'."

This section relates to court-fee payable in respect of multifarious suits. But


unfortunately in the whole of the Act the word "subject" has not been defined,
whereas in Ss. 7 and 13 of the Act, the words used are "suit embraces two or more
distinct subjects". It is not, therefore, clear from the language of the section as
such as to whether the word "subject" here means and includes subject-matter or
whether it means something else. On a reading of the entire provisions of the Act
as a whole I am inclined to the view that the terminology, namely, "distinct
subjects" used in S.17 of the Act should be interpreted to mean distinct subject-
matter only, and it should also be understood to mean such subject-matters as are
distinct but which can be clubbed together in a single suit. Otherwise if the words
"distinct subject" in a very comprehensive sense, then the meaning of S.17 would
become absurd; for distinct categories of subjects could not be embraced in a
single suit. Obviously, the intention underlying this S.17 seems to be to provide
for suits which offend against the other provisions of the Civil Procedure Code,
such as misjoinder of causes of action and so forth.

10. In the other case of a D. Lakshminarayana Chettiar and another, the question as to the
proper interpretation of section 17 of the Court Fees Act vis-a-vis payment of proper
court-fee was referred to the Full Bench for its opinion. The learned Bench examined
plethora of case law on the subject from various High Courts of Indian jurisdiction to
answer the question what is the real meaning of the words "distinct subject" used in
section 17 of the Court Fee Act" and answered the same as under:

"Distinct subject" in S.17, Court-fees Act means distinct causes of action in


respect of which separate suits should be filed hut for the enabling provisions
allowing them to be clubbed up in one suit. The distinctness or identity of the
cause of action is the only criterion for the applicability of the section."

11. The above opinion of Full Bench again came up for consideration before a Division
Bench (AIR 1954 Madras 602), which passed the order dated 6-10-1953, and observed as
under:--

"it is not necessary to multiply cases, for it is now fairly well-settled that "cause of
action" means the bundle of essential facts which is necessary for the plaintiff to
prove before he can succeed in the suit. Or to put it differently, it refers "to the
media upon which the court arrived at a conclusion in his favour". To define it is

Page No. 6 of 9
comparatively easier but to apply it to the facts of each case is more difficult."

12. Concluding with his submissions learned Advocate-General submitted that the
questions framed in this reference are thus required to be answered on the basis of
guidelines given by our Apex Court in the case of Aslam Industries Limited (supra).

13. Mr. Muhammad Ali Sayeed learned senior counsel appearing as Amieus Curia
highlighted the concept of access to justice as one of the fundamental rights for each
citizen of this country, guaranteed under the Constitution. In this context, he made
reference to the following eases:

(1) Federation of Pakistan v. The General Public PLD 1988 SC 645.

(2) Government of Sindh and others v. Sharaf Faridi and others PLD 1994 SC
105.

(3) Government of Balochistan v. Azizullah Memon and 16 others PLD 1993 SC


341.

(4) Al-Jehad Trust through Raseesul Mujahideen Habib-ul-Wahahu-ul-Khari and


others v. Federation of Pakistan and others PLD 1996 SC 324.

(5) Aftab Shaban Mirani v. President of Pakistan and others 1998 SCMR 1863.

(6) New Jubilee Insurance Company Ltd., Karachi v. National Bank of Pakistan
PLD 1999 SC 1126.

(7) Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC
1445.

(8) Sh. Liaquat Hussain and others v. Federation of Pakistan PLD 1999 SC 504.

(9) Sh. Riazuddin v. Aquilur Rhemna Siddiqui v. and 4 others PLJ 1993 SF 141.

14. As regards the applicability of ratio of judgment in the case of Aslam Industries
Limited (supra), learned counsel endorsed with respect the merits of the conclusion
recorded in the said judgment of the Apex Court. In the end, Mr. Muhammad Ali Sayeed
also made reference to the well-recognized rule of interpretation of fiscal statute that
where, upon interpretation of any provision of law two equally logical conclusions are
possible, then the one favourable to the subject is to be given preference over the other.

15. Mr. Iqbal Kazi the other learned senior counsel appearing as Amicus Curia, during the
course of his arguments made specific reference to the judgment of the Division Bench of
this Court in the case of Sindh High Court Bar Association Karachi and another v. Islamic
Republic of Pakistan PLD 1991 Kar. 178, and contended that legally by virtue of sections
4 and 6 of the Sindh Finance Act IV of 1990, the Court Fee (Sindh Amendment)
Ordinance, 1977 has been repealed with effect from 1-7-1990, therefore, the earlier
benefit available to the litigant public by limiting the payment of maximum court-fee to
Rs.15,000 was no more available, however, explaining the applicability and import of
this judgment, learned counsel referred concluding paragraph 19 of the judgment to show
that by this judgment, Court has held sections 4 and 6 of the Sindh Finance Act, 1990
repugnant to the Injunctions of Islam and also violative of Articles 2-A and 37(d) of the
Constitution and therefore, directed the office of the High Court and all the Courts
subordinate to the Sindh High Court to ignore the amendments made by sections 4 and 6
of the Sindh Finance Act, 1990, as a result whereof the earlier provisions of Court Fees
(Sindh Amendment) Ordinance, 1977 are still being followed in Sindh. He also made
reference to Para. 18 of the same judgment to show the legal difficulty faced by the
Divisions Bench in declaring sections 4 and 6 of the Sindh Finance Act, 1990 ultra vires
to the Constitution. Learned counsel neither made statement at the bar that the said
judgment in the case of Sindh High Court Bar Association Karachi (supra) has been
maintained by the apex Court, therefore, the provisions of Court Fees (Sindh
Amendment) Ordinance, 1977 are still being applied by all Courts in Sindh for charging

Page No. 7 of 9
the maximum court-fee in the sum of Rs.15,000. In the end referring to the judgment in
the case of Aslam Industries Ltd. (supra), learned counsel reiterated that the parties to the
suit; subject-matter of litigation; the multifariousness of the causes of action; nature of
reliefs claimed, and in that context the guideline given in this judgment, will be the
relevant considerations to determine whether each of the plaintiff is required to pay
separate court-fee in the suit or payment of maximum court-fee once would be sufficient
on behalf of any number of plaintiffs in the suit., and such principle will be applied by the
Courts keeping in view the peculiar facts and circumstances of each case.

16. We have carefully considered the arguments advanced before us by the learned
counsel and also perused the relevant record.

17. As evident from the record, the basis for making of reference in hand dated 17-5-1999
by the learned Single Judge Ataur Rahman, J. (as he then was), are the judgments in the
case of AVA A. Kowasjee v. Nasreen Nizam Shah 1984 CLC 2705, followed by another
Hon'ble Judge of this Court Abul Inam, J. (as he then was) in his order dated 24-12-1997
in Suit No.1553/1997, which order was also maintained by the Division Bench of this
Court vide its order dated 3-4-1998 passed in High Court Appeal No.15/1998. It seems
that at the time of passing of two preceding orders in Suit No.1553 of 1997 and H.C.A.
No.15/1998, learned counsel appearing in the matter had not brought to the notice of the
Court the case of Aslam Industries (Pvt.) Ltd. Khanpur v. Pakistan Edible Corporation
and others 1993 SCMR 683, a authoritative pronouncement of the Hon'ble Supreme
Court of Pakistan, which is binding on all other Courts in Pakistan by virtue of Article
189 of the Constitution, and had already laid at rest the controversy from which the
questions proposed in this reference application emanate. In paragraph 15 of judgment in
the case the Hon'ble Supreme Court had specifically taken notice of the earlier judgment
in the case of AVA A. Kowasjee (supra) and observed under:--

"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 reliefs 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. If however
conceded that on each separate distinct subject, the maximum court-fee payable
separately would not be more than Rs. 15,000."

Further, taking into consideration several judgments from the Indian jurisdiction on the
subject, the judgment of Peshawar High Court in the case of Arbab Ghulam Ali Khan v.
Arbab Muhammad Hussain and 4 others PLD 1986 Peshawar 72, containing n contrary
view to the one in the case of AVA A. Kowasjee (supra), and also taking into
consideration the relevant provisions of the Court Fees Act, in Paragraphs 16 and 17 of
the judgment (already reproduced above) Hon'ble Supreme Court has elucidated and
amplified the relevant aspects which need careful consideration in each case for this
purpose, and provided comprehensive guidelines for determining the issue of payment of
court-fee on that basis. It has also been observed at the bottom of paragraph 17 of the
judgment that a taxing statute must be construed in the light of what is clearly expressed
and if the legislative wants to fix a maximum ceiling beyond which it does not want to
recover court-fees, true recognition must be given to that intent.

18. Indeed, in the case of Aslam Industries Ltd., reference has been made to the
provisions of Article I of Schedule I of the Court Fees Act (VII of 1870) as amended by
section 8 of Punjab Finance Act (XVI of 1973) and on that basis it has been held that the
maximum court-fee payable on the plaint was Rs.15,000 and no further. But in the
Province of Sindh, also in view of the judgment of this Court in the case of Sindh High
Court Bar Association Karachi and another v. Islamic Republic of Pakistan PLD 1991
Karachi 178, which has been maintained by the Hon'ble Supreme Court of' Pakistan,
despite amendment in the Court Fee Act, 1870, made by sections 4 and 6 of the Sindh
Finance Act, 1990, thereby repealing the earlier amendment in Article 1 of Schedule I of
the Court Fees Act, VII of 1870, introduced by section 2 of Sindh Finance Ordinance VII

Page No. 8 of 9
of 1977, the position has remained unchanged i.e. the maximum court-fee recoverable is
still in the sum of Rs.15,000. For further elucidation of this aspect relevant/operative
paragraphs 18 and 19 of the judgment are reproduced as under:-

"18. Having reached the conclusion that sections 4 and 6 of the Sindh Finance
Act, 1990, are repugnant to the Injunctions of Islam and also violative of Articles
2-A and 37(d) of the Constitution, it has to be considered as to what relief can be
granted in this petition under Article 199 of the Constitution. Till the Supreme
Court gives its final verdicts on Constitutional provisions relating to Islamization
of laws, it will remain doubtful whether a declaration can be given under Article
199 that a statutory provisions is void on the ground that it is repugnant to the
Injunctions of Islam. Yet, to enforce its findings that sections 4 and 6 of the Sindh
Finance Act, 1990, are repugnant to the Injunctions of Islam and also violative of
Articles 2-A and 37(d), the Court can certainly give appropriate directives to
regulate its working and procedures and so also of the Courts subordinate to it.

19. In view of our conclusions in this petition, we have decided to issue the following
directives:--

(a) The concerned officers of the Sindh High Court will accept plaints, written
statements, pleading, set-offs or counter-claims, memoranda of appeals or cross
objections presented or filed in the Sindh High Court with Court-fees affixed on
such documents payable under the Court Fees Act, 1870 (as applicable to the
Sindh Province) ignoring its amendment by sections 4 and 6 of the Sindh Finance
Act, 1990, as if these two sections were not enacted;

(b) Similar directive be issued to all Courts subordinate to the Sindh High Court
and exercising civil jurisdiction."

19. Thus the ratio of judgment in the case of Aslam Industries Ltd. is fully applicable and
binding on all Courts in the Province of Sindh.

20. The submission of Mr. B.M. Bhangesh Advocate, with reference to the judgment of
Federal Shariat Court in the case of Dr. Mahmoodur Rehman Faisal (supra) has also no
relevancy/practical implication at this point of time, as its operation stood automatically
suspended due to filing of appeal against such judgment before the Shairat Appellate
Bench of Hon'ble Supreme Court of Pakistan, which is an admitted position.

21. The submission of Mr. Muhammad Ali Sayeed Advocate, with reference to the
plethora of case law cited by him, highlighting the concept of Access to Justice as one of
the fundamental rights, guaranteed for every citizen of' this country, has also persuasive
force for liberal application of the view taken by the Hon'ble Apex Court in the case of
Aslam Industries (Pvt.) Ltd. Khanpur (supra).

22. In the context of chargeability of court-fee in the Suits involved in this reference, a
reference to Article 2-A and Article 37(d) of the Constitution is also pertinent, as by
virtue of these Articles of the Constitution, State, is obliged to promote the ends of social
justice by providing inexpensive and expeditious justice to every citizen of this country.

23. To sum up, following the guidelines given by the Apex Court in the case of Aslam
Industries (Pvt.) Limited Khanpur v. Pakistan Edible Corporation and others 1993 SCMR
683, all the four questions proposed in this reference application are answered in the
affirmative.

24. The reference made to this Bench is disposed of accordingly.

M.H./U-2/K Reference allowed.

Page No. 9 of 9
2007 C L C 532

[Lahore]

B ef ore Sh. Hakim Ali, J

MUHAMMAD SHAUKAT and others----Petitioners

Versus

Haji GHULAM MUHAMMAD and Others--Respondents

Civil Revision No.147 of 2004, decided on 19th December, 2006.

Court Fees Act (VII of 1870)---

----Sched-I, Art.1, Sched-II, Art.17(vi)---Civil Procedure Code (V of 1908), S.115---


Partition suit---Appeal decided in terms of award of arbitrators---Calculation and
payment of court-fee on memorandum of appeal---Plaintiff filed suit for partition of
property against his brother fixing value for purposes of court-fee and jurisdiction at
Rs.24,000 and no court-fee was paid by plaintiff being exempted from payment of court-
fee---During pendency of suit an agreement was arrived at between the parties for
appointment of arbitrators for decision of the case through intervention of the court---
Award delivered by arbitrators was made rule of the court and same was made part of
decree of the court---Said decree was assailed by plaintiff by filing appeal before
Appellate Court, maintainability of which was challenged on the ground that said appeal
was filed without affixing proper court-fee---Objection petition was dismissed by the
Appellate Court---Contention of defendant was that decree which was passed upon the
award, having fixed value of share of property of plaintiff to the tune of Rs.6,00,000 and
that amount was to be paid to him, appeal filed by plaintiff should have counted valuation
of the court-fee at Rs.6,00,000 and ad valorem court-Pee was to be paid by him on
appeal---Contention of the plaintiff was that in law court-Pee of Rs. 10 only was to be
affixed on the partition suit and that was the proper court-fee to be affixed upon the
memorandum of appeal as well because appeal was a continuation of proceedings of the
suit---Validity---When suit for partition was filed, same could not be valued for the
purposes of court-fee for more than Rs.10, which was fixed according to Art.17(vi)
Sched.II of the Court Fees Act, 1870 as at that stage share of plaintiff in the property was
not separated and valued, but subsequently when share of' plaintiff was specified and its
value was fixed, then it would retch ad valorem court-fee according to valued share of
plaintiff---Share of plaintiff in the property having been valued Rs.6,00,000, it was duty
of plaintiff to value his appeal at Rs.6,00,000 and to fix court-fee ad valorem according to
Art.1, Sched.I of Court Fees Act, 1870---Order of Appellate Court was set aside by the
High Court and plaintiff was directed to value memorandum of appeal in accordance with
value to the extent of his share of property which was Rs.6,00,000 and to pay ad valorem
court-fee in accordance with that value.

Province of Balochistan v. Sardar Muhammad Usman Khan PLD 1987 Quetta 33; Gauri
Shankar v. Anat Ram AIR 1926 Lah. 403; Mst. Bibi Lal Bibi v. Mir Baluch Khan PLD
1962 (W.P.) Quetta 28 and AIR 1924 Lah. 325 rel.

Mian Ahmad Nadeem Arshad for Petitioners.

Syed Muhammad Akhtar Shah for Respondents.

ORDER

SH. HAKIM ALI, J.---Ghulam Muhammad had filed a suit for partition with regard to
Shop No.39, situated in Ghalla Mandi Hasilpur, and Shop No.11-B (half western) of main
Bazar Hasilpur, against his brother Abdul Majeed, who expired during the pendency of
that suit and in his stead legal representatives were impleaded. The value for the purpose
of court-fee and jurisdiction was fixed by the plaintiff at Rs.24,000 in the suit, therefore,
the court-fee was not paid due to it being exempted from payment of court-fee, During

Page No. 1 of 3
the pendency of the suit, there was an agreement entered into between the parties for
appointment of Arbitrators for decision of the case through the intervention of the Court.
Hafiz Khadim Hussain, Muhammad Iqbal and Ch. Muhammad Jameel Johar, were
appointed as Arbitrators who unanimously, on 21-3-2003, decided the dispute referred
and submitted the award. Dissatisfied from the award, both the parties filed objection
petitions against that award but learned Civil Judge came" to the conclusion that the
award was correctly delivered by the Arbitrators, so by accepting that award, it was made
a rule of Court on 2-8-2003. The award was made part of the decree of the Court by the
learned Civil Judge, Hasilpur. This decree was assailed before learned Additional District
Judge, Hasilpur, by respondent No.1/plaintiff through filing of appeal. Muhammad Sharif
etc. after appearing in the appeal filed petition objecting to the maintainability of the,
appeal as it was without affixing the proper court-fee. That petition was contested but was
dismissed by learned Additional District Judge on 14-1-2004, hence this civil revision.

2. Learned counsel for the petitioner submits that appeal was filed without appending
proper court-fee, therefore, it was not an appeal in the eye of law. The decree which was
passed upon the award had fixed the value of share of property of the plaintiff to the tune
of Rs.6,00,000 and this amount was to be paid by the defendant to the plaintiff in
compliance of that award/decree, therefore, the appeal must have contained the valuation
of court-fee at Rs.6,00,000 and ad valorm court-fee was to be paid by the appellant on the
appeal before learned Additional District Judge. Learned counsel has supported his
arguments through the judgments of Province of Balochistan v. Sardar Muhammad
Usman Khan PLD 1987 Quetta 33 and Gauri Shankar v. Anat Ram AIR 1926 Lah. 403.

3. On the other hand, learned counsel for respondents submits that in law court-fee of
Rs.10 only was to be affixed on the partition suit and this was the proper court-fee to be
affixed upon the memorandum of appeal as well because the appeal was a continuation of
the proceedings of the suit. Learned counsel has also referred to a judgment reported in
Mst. Bibi Lal Bibi v. Mir Baluch Khan PLD 1962 (W.P.) Quetta 28 to fortify his
argument. According to the learned counsel court-fee of Rs.10 was proper for
memorandum of appeal and learned Additional District Judge had correctly rejected the
petition of the petitioner. He has also submitted that appeal being continuation of the suit
would not fetch any more court-fee than the fee of Rs.10 affixed upon the plaint.

4. After considering the arguments of learned counsel and from the perusal of the record,
I have not been able to agree with the arguments of learned counsel for the respondent
because there is no cavil to the proposition that partition suit when instituted the subject-
matter of it cannot be valued for the purposes of court-fee, for more than Rs.10 which is
fixed according to Article 17(vi) Schedule II of the Court Fees Act No.VII of 1870, the
reason behind at that stage, is that share of c plaintiff in the property in dispute is not
separated, specified and valued. At the time of preliminary or final adjudication when
share of the plaintiff is specified and its value is fixed then it fetches ad valorem court-fee
according to valued share of plaintiff. In the instant case, it is an admitted fact that share
of the plaintiff was valued at Rs.6,00,000 and defendants. were directed to pay
Rs.6,00,000 to the plaintiff', therefore, value of the suit had increased and enhanced to the
extent of Rs.6,00,000 and Rs.10 court-fee based on notional value was to disappear so as
to leave place for the ascertained value. In such an event, it was the duty of the appellant
to value the appeal at Rs.6,00,000 and to fix court-fee ad valorem according to Article 1
Schedule I of the Court Fees Act. In PLD 1987 Quetta 33 above mentioned, it was held
that against the decree delivered in terms of award, where appeal was filed against that
decree, the ad valorem court-fees would be paid for such appeal and amount of ad
valorem court-fees would be calculated according to Article I, Schedule I of Court Fees
Act. It was further held that memorandum of appeal without proper court-fee was not an
appeal in the eye of law. In AIR 1926 Lah. 403, it was held that appeal arising from the
decree must bear ad valorem court-fee.

5. The judgment of PLD 1962 (W.P.) Quetta 28 cited above cannot be held applicable to
the facts and circumstances of the case because in that judgment question involved was
with regard to the affixing of court-fee upon the plaint. But in the instant case, appeal was
filed against the judgment which was passed on the basis of award, in which Rs.6,00,000
were granted to the plaintiff. That decree was being challenged in the appeal, therefore
the difference is apparent. In AIR 1924 Lah. 325 (DB), it was held that ad valorem court-

Page No. 2 of 3
fee must be paid when the appeal was to attach various items allowed or disallowed in the
final decree of partition. Accordingly, the order, dated 14-1-2006 passed by the learned
Additional District Judge cannot be upheld, which is set aside and the
respondents/appellants are directed to value the memorandum of appeal in accordance
with value fixed in the award, i.e. to the extent of their share of the property and to pay ad
valorem court-fee in accordance with that value, on the date to be fixed by the learned
Additional District Judge. For what has been discussed above, the instant civil revision is
accepted with the above noted direction.

H.B.T./M-38/L Revision accepted.

Page No. 3 of 3
P L D 2006 Karachi 155

Before Faisal Arab, J

ANWARUL HUDA and another---Plaintiffs

Versus

FAHIMUL HUDA and another---Defendants

Suit No.1452 of 1999 and C.M.A. No.1257 of 2004, decided on 29th November, 2005.

(a) Sindh Civil Courts (Amendment) Ordinance (XXX of 2002)---

---S. 5---West Pakistan Civil Courts Ordinance (II of 1960), S.9---Court Fees Act (VII of
1870), S. 7---Civil Procedure Code (V of 1908), O.VII, R.10---Jurisdiction of Courts
cannot be ousted by undue overvaluation of claims made in a suit as it amounts to fraud
upon law---Court should not allow a plaintiff to evade the law relating to the matters of
jurisdiction---Where it is found that plaintiff has deliberately exaggerated his claim in
order to bring his suit in a Court which otherwise would not have jurisdiction, the plaint
should be returned for presentation before Court of appropriate jurisdiction.

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

----S. 7(iv)(c)---Specific Relief Act (I of 1877), S.42---Interpretation of S.7(iv)(c) of


Court Fees Act, 1870---Suit for declaration---Court-fees---Computation---Provision of
S.7(iv), Court Fees Act, 1870 has given discretion to the plaintiff to value his suit as he
deems appropriate---Words used in concluding part of S.7(iv)(c) are "according to the
amount at which the relief is valued in the plaint" and "the plaintiff shall state the amount
at which he values the reliefs sought"---Object of entrusting the plaintiff with such an
absolute discretion in cases covered by S.7(iv) appears to be that it was difficult for the
lawmakers to provide basis for valuing the suit covered by S.7(iv)(c) with any precision--
Once the plaintiff puts his own valuation to a suit covered under S.7(iv)(c), the
jurisdiction of the Court where suit is to be tried is determined and in such cases
defendant does not have the option to seek interference of the Court for re-determination
of the value in order to seek change in the forum before which suit is to be tried as the
Court cannot question plaintiff's valuation, however, arbitrary it may be--Where,
however, the plaintiff puts value for the purposes of declaration and also for the purpose
of other reliefs it is the cumulative value of all the reliefs which determines the
jurisdiction of the Court before which the suit is to be filed.

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

---S. 17---Civil Procedure Code (V of 1908), O.XL, R.1---Multifarious suit---Court


fees---Computation---Principles---Aggregate value of only such reliefs is to be taken into
account which are distinct and final in nature---Where one relief is not distinct from other
and appears to be only superfluous or not arising out of the suit, the same cannot be
joined together to determine value for purposes of jurisdiction---Only such reliefs,
decision on which results in final resolution of a controversy, are to be valued for the
purposes of valuation of a suit and not the reliefs which are purely of interim nature and
are sought till the disposal of the final controversy in suit---Relief of receivership, which
though arising in the suit, being purely of interim nature, cannot be made basis for the
purposes of valuing a suit.

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

----S. 7(iv)(c)-Specific Relief Act (I of 1877), S.42---Suit for declaration---Court fees---


Aggregate computation---Principles---Section 7(iv)(c) of the Court Fees Act, 1870 only
speaks about seeking relief of declaration and consequential relief, it does not speak of
the nature of declaration or of the consequential relief, which a plaintiff has to seek in a
suit---Nature of such relief entirely depends upon the grievance, which the plaintiff brings
to the Court and is discernible from the contents of the plaint---All such reliefs, which

Page No. 1 of 5
flow from the contents of the plaint are legally permissible and can be sought by a
plaintiff---No restrictions can be imposed on the nature of declarations, which a plaintiff
can seek as long as they are lawful and arise from the contents of plaint.

(e) Specific Relief Act (I of 1877)---

---S. 42---Courts Fees Act (II of 1870), S.7(iv)(c)---Suit for declaratory relief for
dissolution of partnership of the firm or for declaration with regard to the claim of forgery
of documents---Aggregate value of Court fee---Principles---Section 42, Specific Relief
Act, 1877 makes it evident that a plaintiff is entitled to ask for any relief to which he is
entitled under the law which relates to his claim either to any legal character or to a right
in a property---hi order to seek declaration or consequential relief it is not necessary that
such reliefs must find mention in S.7(iv)(c), Court Fees Act. 1870---Plaintiffs are
therefore justified in seeking declaratory reliefs with regard to dissolution of the firm or
for declaration with regard to their claim of forgery of documents.

(f) Karachi Courts Order (P.O. No.2 of 1956)---

---Preamble---Sindh High Court possesses concurrent jurisdiction along with the Civil
Court.

PLD 1981 Kar. 210 fol.

Monawwer Ghani for Plaintiffs.

Zahid Hamid for Defendant No.1.

Mrs. Sofia Saeed Shah for Defendant No.2.

Date of hearing: 17th November, 2005.

ORDER

FAISAL ARAB, J.---This is an application filed under section 151, C.P.C. read with
section 5 Civil Courts Amendment Ordinance, 2002. Through this application the
defendant No.1 has sought directions for transfer of the present suit for trial to Civil
Court on the ground that the plaintiff has overvalued the suit as its correct value is less
than three million rupees.

2. In the present suit the plaintiff has sought reliefs of declaration , accounts and
dissolution of a partnership firm being run in the name and style of Najmi's Footwear in a
shop in Bohri Bazar Saddar, Karachi. The valuation of various reliefs are given by the
plaintiff in paragraph 8 of the plaint which is reproduced hereunder:

"8. That for the purposes of Court-fees and jurisdiction the suit is valued at
Rs.1,500,000.00 for declaration, for accounts at Rs.1,000,000.00 for dissolution at
Rs.500,000.00 and for the relief of Receivership at Rs.50,000.00. The Plaintiffs
have paid maximum Court Fees of Rs.15,000.00 thereon."

3. It is contended by defendant No.1's counsel that the aggregate value of the suit in
paragraph 8 of the plaint has been shown at Rs.3,050,000 which include Rs.50,000 as
value for the relief of Receivership. He submitted that the relief of Receivership being of
interim nature, the same could not be made basis for valuation of the suit. It was therefore
contended that when the valuation of Rs.50,000 for the relief of Receivership is ignored,
the residual value of the suit become Rs.3,000,000 only, making it triable before Civil
Court under section 5 of the Civil Courts (Amendment) Ordinance No. XXX (Sindh) of
2002. He also contended that the plaintiffs have also overvalued the reliefs of declaration.

4. It is a settled principle that jurisdiction of Courts cannot be ousted by undue


overvaluation of claims made in a suit as it amounts to fraud upon the law. The Courts
should not allow a plaintiff to evade the law relating to the matters of jurisdiction. Where
it is found that plaintiff has deliberately exaggerated his claim in order to bring his suit in

Page No. 2 of 5
a Court which otherwise would not have jurisdiction, the plaint should be returned for
presentation before Court of appropriate jurisdiction.

5. In the present suit reliefs for declaration and accounts of a partnership concern has
been sought. I will therefore first examine the relevant provisions of the Court Fees Act in
order to see whether the plaintiffs have committed any legal error in the valuation of the
suit. The relevant provisions are subsections (iv)(c) and (f) of section 7 of the Court Fees
Act which read a follows:

"Section 7 of the Court Fees Act

7. Computation of fees payable in certain suits for money.-The amount of fee payable
under this Act in the suit next hereinafter mentioned shall be computed as follows:

(i) ………………….

(ii) ………………….

(iii) ………………….

(iv) In suits ……………

(a) ………………….

(b) ………………….

(c) For a declaratory decree and consequential relief.--To obtain a declaratory decree or
order, where consequential relief is prayed,

(f) for accounts: for accounts:

according to the amount at which the relief sought is valued in the plaint or memorandum
of appeal;

in all such suits the plaintiff shall state the amount at which he values the reliefs sought.

6. Reading all subsections of section 7 it becomes apparent that in contrast to other


subsections, subsection (iv) of section 7 has given discretion to the plaintiff to value his
suit as he deems appropriate. The words used in the concluding part of subsection (iv) of
section 7 which are underlined by me are "according to the amount at which the relief is
valued in the plaint" and "the plaintiff shall state the amount at which he values the reliefs
sought". The object of entrusting the plaintiff with such an absolute discretion in cases
covered by subsection (iv) of section 7 B appears to be that it was difficult for the
lawmakers to provide basis for valuing the suit covered by the said subsection with any
precision. Thus, once the plaintiff puts his own valuation to a suit covered under
subsection (iv) of section 7, the jurisdiction of the Court where suit is to be tried is
determined. In such cases the defendants do not have the option to seek interference of
the Court for re-determination of the value in order to seek change in the forum before
which suit is to be tried as the Court cannot question plaintiff's valuation, however,
arbitrary it may be.

7. It is also a settled principle that where a plaintiff puts value for the purposes of
declaration and also for the purpose of other reliefs, it is their cumulative value of all the
reliefs which determines the jurisdiction of the Court before which the suit is to be filed.
Section 17 of the Court Fees Act reads as follows:

Section 17 of Court Fees Act

17. Multifarious suits.-Where a suit embraces two or more distinct subjects, the
plaint or memorandum of appeal shall be chargeable with the aggregate amount of
the fees to which the plaints or memoranda of appeal in suits embracing
separately each of such subjects would be liable under this Act.

Page No. 3 of 5
Nothing in the former part of this section shall be deemed to affect the power
conferred by the Code of Civil Procedure, section 9.

8. Aggregate value of only such reliefs are to be taken into account which are distinct in
nature. Where one relief is not distinct from other and appears to be only superfluous or
not arising out of the suit, the same cannot be joined together to determine value for the
purposes of jurisdiction. In the present case none of the reliefs sought by the plaintiff can
be regarded as superfluous or not arising in the suit except for the relief of Receivership
which though arising in the suit, is purely of interim nature. Only such reliefs, decision on
which result in final resolution of a controversy, are to be valued for the purposes of
valuation of a suit and not the reliefs which are purely of interim nature and are sought
till the disposal of the final controversy in suit. Therefore, such relief cannot be made
basis for the purposes of valuing a suit. Thus only such reliefs, which are distinct from
the other and are of final in nature ate to be combined together for the purposes of
valuation of a suit. The value of Rs.50,000 attributed for the relief of Receivership in the
present case is therefore unwarranted and has to be ignored from the aggregate valuation
of the suit.

9. It was also contented by the defendants' Advocate that the value for the relief of
declarations with regard to dissolution of partnership and alleged forged documents is not
warranted by law as such specific reliefs do not find mention in section 7 of the Court
Fees Act. He therefore contends that value of such declarations be also reduced from the
aggregate valuation. This argument is utterly misconceived. Section 7(iv)(c) of the Court
Fees Act only speaks about seeking relief of declaration and of consequential relief. It
does not speak of the nature of declaration or of the consequential relief, which a plaintiff
has to seek in D a suit. The nature of such reliefs entirely depends upon the grievance,
which the plaintiff brings to the Court and is discernible from the contents of the plaint.
Therefore, all such releifs, which flow from the contents of the plaint are legally
permissible and can be sought by a plaintiff. No restrictions can be imposed on the nature
of declarations, which a plaintiffs can seek as long as they are lawful and arise from the
contents of the plaint. In this regard reference can be had to the provisions of section 42
of the Specific Relief Act, which read as follows:

Section 42 of the Specific Relief Act

42. Discretion of Court as to declaration of status or right Bar to such declaration.-


Any person entitled to any legal character, or to any right as to any property, may
institute a suit against any person denying, or interested to deny, his title to such
character or right, and the Court may in its discretion make therein a declaration
that he is so entitled, and, the plaintiff need not in such suit ask for any further
relief.

10. From the bare reading of section 42 of Specific Relief Act it becomes evident that a
plaintiff is entitled to ask for any relief to which he is entitled under the law which relates
to his claim either to any legal character or to a right in a property. Therefore, in order to
seek declaration or consequential relief it is not necessary that such reliefs must find
mention in section 7(iv)(c) of the Court Fees Act or for that matter in any other provision
of the Court Fees Act. The plaintiffs are therefore justified in seeking declaratory reliefs
with regard to dissolution of the firm or for declaration with regard to their claim of
forgery of documents.

11. From the above discussion it has become quite apparent that apart from the value
attributed to the relief of Receivership all other reliefs have been rightly valued. This
brings the value of the suit to exactly three million rupees. However, there is another
aspect of the case. Apart from the present suit, there are three other suits, which have
been consolidated with the present case. These are Suit No.1477 of 1999, Suit No.1696 of
1999 and Suit No.548 of 2000. The present suit was consolidated with Suit No.1477 of
1999 and Suit No.1696 of 1999 vide consent order dated 15-5-2000 passed in Suit
No.1696 of 1999 and Suit No.548 was later connected with the three suits vide order
dated 6-11-2000. In all the four suits common issues are to be framed and common
evidence is to be led in terms of consent order dated 15-5-2000 in order to avoid

Page No. 4 of 5
multiplicity of proceedings and conflicting judgments. Furthermore, Suit No.1477 of
1999 was filed with regard to partition and possession of the shop in which partnership
business i.e. Najami's Shoes was being run and the same has been valued at
Rs.6,500,000. In view of the consolidation of Suit No.1477 of 1999, the joint value of the
subject-matter of controversy travels much beyond three million rupees.

Therefore there would be no justification to dispatch this case to lower Court for trial. It
would also defeat the very purpose for which all the four suits were consolidated, with
the consent of the parties.

12. In addition to the above, another overriding factor which warrants dismissal' of the
present application is that this Court possesses concurrent jurisdiction along with the civil
courts as was held by the Full Bench judgment of this Court in the case reported in PLD
1981 Karachi 210. In the said reported judgment there is elaborate discussion on the
concurrency of jurisdiction of this Court. Therefore, this Court has the power to try the
present suit irrespective of its valuation.

13. In view of the above discussion, this Court can proceed with the trial of the present
case and therefore C.M.A. No.1257 of 2004 is dismissed with no order as to costs.

M.B.A./A-1/K Application dismissed.

Page No. 5 of 5
P L D 2006 Karachi 593

Before Nadeem Azhar Siddiqi, J

Messrs IMPERIAL BUILDERS through Managing Partner and another---Plaintiffs

Versus

LINES (PVT.) LIMITED through Chief Executive and 3 others---Defendants

Suit No.1040 of 2002, decided on 26th June, 2006.

(a) Civil Procedure Code (V of 1908)---

----O. II, Rr. 2(1) & 3(1)---Joinder of two causes of action in one suit---Such suit not
barred by O.II, R.2, C.P.C.

(b) Civil Procedure Code (V of 1908)---

----O. II, R.3(1)---Joinder of two causes of action in one suit by two plaintiffs---Essential
conditions---Plaintiffs must be jointly interested in causes of action---Right to relief
claimed by plaintiffs must be in respect of or arising out of same act or transaction---
Plaintiffs must not be independently liable to defendant---Some common link, must exist
connecting plaintiffs in causes of action.

(c) Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), O.VII, R.11(c)---Court Fees Act (VII of
1870), S.17---Suit by two plaintiffs for specific performance of two independent
agreements to sell relating to separate properties---Rejection of plaint for being
insufficiently stamped---Scope---Both agreements did not arise out of same act and
transaction---Both plaintiffs had no link with each other in transaction---In case of
combining in one suit two or more distinct subjects or causes of action, then each claim
on basis of cause of action would be valued separately and requisite court-fee would be
paid thereon---Plaint contained two independent reliefs in respect of two independent
agreements in respect of separate land, on which court-fee was payable separately---
Court-fee already paid on plaint being payable on suit for specific performance of one
agreement---Plaint written upon paper insufficiently stamped could not be straight away
rejected-Court directed plaintiff to further deposit requisite court-fee within specified
time.

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

----S. 17---Multifarious causes of action joined in one suit---Court-fee, determination


of---Each claim, on basis of cause of action, would be valued separately and requisite
court-fee would be paid thereon.

(e) Civil Procedure Code (V of 1908)---

----O. II, Rr.3(1), 6 & O.VII, R.11(c)---Court Fees Act (VII of 1870), S.17---Joinder of
two distinct and separate causes of action based on two distinct subjects---Court-fee
already paid on plaint payable on one relief based on one cause of action---Effect---Plaint
on such count could not be rejected, but separate trial could be ordered.

Alam Khan and 3 others v. Pir Ghulam Nabi Shah & Company 1992 SCMR 2375 ref.

(f) Civil Procedure Code (V of 1908)---

----O. VII, R.11(c)---Plaint written upon paper insufficiently stamped, rejection of---
Scope---Such plaint could not be straightaway rejected unless plaintiff, on being required
by Court to supply requisite stamp paper within specified time, failed to supply same.

Page No. 1 of 10
(g) Specific Relief Act (I of 1877)---

----S. 12---Contract Act (IX of 1872), S.55---Limitation Act (IX of 1908), Art.113---Civil
Procedure Code (V of 1908), O.VII, R.11(d)---Suit for specific performance of agreement
to sell---Limitation---Agreement dated 24-5-1995 showing delivery of possession of plot
to vendee along with execution of General Power of attorney in his favour with all
powers leaving nothing to be performed by vendor---Nonpayment of balance price by
vendee on 24-3-1996 fixed in agreement---Vendor's notice to vendee dated 5-12-1996
refusing to perform agreement and notice dated 30-11-1997 cancelling agreement---
Vendee not mentioned in plaint that he had ever made or tried to make payment to vendor
on or before date fixed in agreement---Stopping of balance price by vendee through his
letter dated 5-12-1995 addressed to vendor---Agreement stipulated that further action
thereunder on the part of vendor was subject to receipt of balance price---Vendee could
not be allowed to take advantage of his own negligence and breach of contract---On
vendee's refusal to pay amount on specified date, vendor had acquired right to avoid
agreement---After expiry of full period of limitation, there would be no revival of cause
of action afresh from legal notice dated 28-9-2002 served on defendant--Suit filed in year
2002 was barred by both situations mentioned in Art. 113 of Limitation Act, 1908---Plaint
was rejected in circumstances.

Mst. Kulsoom and 6 others v. Mrs. Marium and 6 others 1988 CLC 870 and Haji
Muhammad Yakub v. Shahnawaz 1998 CLC 21 rel.

(h) Limitation---

---Once full period of limitation was expired, then there would be no revival of cause of
action afresh from date of legal notice served on defendant subsequently.

Province of Punjab v. Muhammad Hussain PLD 1993 SC 147 rel.

(i) Civil Procedure Code (V of 1908)---

---O. II, Rr.3(1), 6 & O.VII, R.11---Joinder of causes of action in plaint---Rejection of


plaint---Scope---Plaint joining two causes of action could be rejected partly for relief
coming within four corners of O.VII, R.11, C.P.C.---Plaint could not be partly rejected,
which was based on one cause of action and reliefs claimed were arising from one cause
of action.

Alam Khan and 3 others v. Pir Ghulam Nabi Shah & Company 1992 SCMR 2375 ref.

(j) Civil Procedure Code (V of 1908)---

----O. II, Rr.3(1), 6 & O.VII, R.11---Joinder of causes of action--Separate trials---


Scope---Rule 6 of O.II, C.P.C., applicable to cases, where joinder of causes of action was
in accordance with law, but not to cases of mis-joinder of cause of action or causes of
action of a different character---Where one claim/relief arising out of one cause of action
was barred by law, while relief based on other cause of action was maintainable, then
Court in such situation could reject plaint to the extent of relief/case barred by law and
proceed with case/relief based on a cause of action not barred by law.

Khawaja Shams-ul-Islam for Plaintiffs.

Asim Mansoor Khan for Defendant No. 1.

Muqeem Alam for Defendant No.2.

Arshad Iqbal for Defendant No.4.

Ashiq Ali Anwar Rana for Evacuee Trust Property Board.

JUDGMENT

Page No. 2 of 10
NADEEM AZHAR SIDDIQUI, J.---The plaintiffs have filed this suit for declaration,
specific performance, injunction, mesne profit, damages and cancellation. The claim of
the plaintiff No. 1 is that they entered into an agreement of Sale dated 5-12-1995 with
defendant No.1 in respect of sale of Commercial Plots bearing Nos. SB-1 to SB-16.
Wasim Bagh, Block 13/D-2, Gulshan-e-Iqbal, Karachi measuring 10,255 square yards
against total sale consideration of Rs.69,221,250, out of which a sum of Rs.3,00,00,000
has been paid and in lieu thereof the defendant No.1 executed Irrevocable General Power
of Attorney dated 5-12-1995 and physical possession of the entire plots were handed over
to the plaintiff No.1.

The plaintiff No.2's claim is that he entered into an Agreement' of Sale dated 24-5-1995
with the defendant No.1 in respect of Plot No.SB-17, Wasim Bagh, Block 13/D-2,
Gulshan-e-Iqbal, Karachi measuring 2,336 square yards against total sale consideration of
Rs.93,44,000, out of which an amount of Rs.48,44,000 was paid by the plaintiff No.2 to
the defendant No.1 and the defendant No.1 also executed Irrevocable General Power of
Attorney dated 24-5-1995 in favour of the plaintiff No.2.

The plaintiffs in the plaint pleaded that the defendant No.1's vide letter dated 6-12-1996
threatened the plaintiffs for cancellation of sale Agreement as well as Irrevocable General
Power of Attorney, both dated 15-12-1995, which was replied by the plaintiffs vide letter
dated 12-12-1996. It was also pleaded in the plaint that the son of late Wasimuddin,
namely, Babar Wasim claiming to be Attorney of the defendant No.1 filed a suit bearing
No.1751 of 1999 on 3-12-1999 for declaration, injunction, mesne profit in this Court for
cancellation for Sale Agreement dated 5-12-1995 with further prayer of vacation the suit
premises bearing Plots No.SB-1 to SB-16. In the plaint it was also pleaded that the
plaintiffs since inception of the agreement are willing to perform their part of contract,
but the defendants failed to adhere their commitments and legal obligations for vacating
Commercial Plot No.SB-17 from the encroachers. The plaintiffs further pleaded that the
cause of action in this suit arose to the plaintiffs on 24-5-1995 and 5-12-1995 when the
agreements were executed and the defendant No.1 received the part payment towards sale
consideration and when the correspondences were exchanged between the plaintiffs and
the defendants on several dates and thirdly on 9-2-2002 when the defendant No.1
admitted in their application under order XII, Rule 6, C.P.C. filed in Suit No.1751/1999,
fourthly when the defendants failed to handover physical possession of the Commercial
Plot No.SB-17 and finally on 28-9-2002 when the defendant No.1 despite approaches by
the plaintiffs failed, avoided and neglected to perform their part of performance.

After service the defendant No.1 filed its written statement and have taken legal objection
with regard to maintainability of the suit as under:

(a) that the suit is liable to be dismissed on the grounds that the person who has
signed the present plaint, is not properly authorized, the plaint has been filed by
the unauthorized person and that there is no resolution for filing of the present
suit;

(b) that the suit does not disclose the actual cause of action, as such; the plaint is
liable to be dismissed;

(c) that the suit in the present form is not maintainable under the law and not as
such, it is liable to be dismissed;

(d) that the suit is time barred, therefore, liable to be rejected;

(e) that the suit is bad for mis-joinder of causes of actions, which mis-joinder is
fatal for survival of the suit;

(f) that the plaintiffs have not come to the Court with clean hands as they had
ulterior motives and mala fide intentions to harass the defendants;

(g) that the suit is barred under Order II, rule 2, C.P.C.;

(h) that the plaint is liable to be rejected under Order VII, Rule 11, C.P.C.

Page No. 3 of 10
It was further pleaded in the written statement that an agreement dated 5-12-1995 was
executed, but on committing default and breach of the agreements by the plaintiff No.1
the General Power of Attorney was revoked on 3-11-1997 and agreement was cancelled
and the matter is pending decision in Suit No.1751/1999 filed by the defendant No.1. The
defendant No.1 has not denied the receipt of Rs.3 crore. It is submitted in the written
statement that the balance was not paid and the cheques, which were given by the
plaintiff No.1, were bounced. The execution of the second agreement dated 5-12-1995
has not been denied. It is submitted that the two agreements are separate and distinct and
contains its own terms and conditions and that physical possession of the plot was handed
over to the plaintiff No.2 as provided in para. 9 of the Agreement.

The defendant No.2 filed written statement and submitted that dispute in respect of plot is
between plaintiffs and defendant No.1 and K.D.A./C.D.G.K. has nothing to do in the
matter.

The defendant No.3 K.B.C.A. has also filed written statement and submitted that plot
No.SB-17 is under encroachment since long and no approval of construction was
obtained.

The defendant No.4 in its written statement submitted that the defendant No.1 has no
clear title of the suit land and any agreement between plaintiffs and defendant No.1 is not
a valid agreement and cannot be enforced and be specifically performed. The defendant
No.4 claimed connivance between the plaintiffs and the defendant No.1 to deprive the
defendant No.4 from its land.

The defendant No. 1 has also filed an application under Order VII, Rule 11, C.P.C. on the
following grounds:

A. that the suit is liable to be dismissed on the grounds that the person who has
signed the present plaint, is not properly authorized, the plaint has been filed by
the unauthorized person and that there is no resolution for filing of the present
suit;

B. that the suit does not disclose the actual cause of action, as such, the plaint is
liable to be dismissed;

C. that the suit in the present form is not maintainable under the law and as such,
it is liable to be dismissed;

D. that the suit is time barred, therefore, liable to be rejected;

E. that the suit is bad for mis-joinder of causes of actions, which mis-joinder is
fatal for survival of the suit;

F. that the plaintiffs have not come to the Court with clean hands as they had
ulterior motives and mala fide intentions to harass the defendants;

G. that the suit is barred under Order II, Rule 2, C.P.C.;

H. that the agreement was not properly stamped/executed in accordance with law;

I. that the aforesaid agreement is void as the same is not signed by

Mr. Muhammad Hussain so also no Resolution was submitted by the plaintiff passed by
the Board of Directors of the defendant No.1 in this respect, hence the suit is liable to be
dismissed. Mr. Asim Mansoor Khan, learned counsel for the defendant No.1, at the very
outset, has submitted that he is only pressing grounds C, D, E and G of his application
under Order VII, Rule 11, C.P.C. The plaintiffs have not filed any counter-affidavit or
objections to this application.

With regard to Grounds C, E and G, he submits that the suit has been filed for specific

Page No. 4 of 10
performance of two distinct and separate agreements of sale and since the causes of
action of both the agreements are distinct and separate, they cannot be joined in one suit
and the suit is bad for mis-joinder of causes of action.

On the other hand, Mr. Khawaja Shams-ul-Islam, learned counsel for the plaintiffs has
submitted that the defendants (vendee) in both the agreements are common and that the
relief claimed is also common, therefore, one suit can be filed combining several causes
of action.

I have considered the submissions of the learned counsel.

Order II Rule 2 does not bar filing of a suit on joinder of two causes of action. Order II
Rule 2 deals with the splitting up of the claim and relief and provides that if the plaintiff
omits to sue for all the claims and reliefs to which he is entitled in respect of a cause of
action, he will be precluded in a second suit from suing in respect of the portions so
omitted.

From the pleadings in the plaint, it is apparent that the plaintiffs have filed this suit for
specific performance of two independent agreements in respect of separate properties. It
is also apparent that the causes of action for filing of the suit for specific performance of
the agreements are distinct causes of action, but the same have been combined.

Order II Rule 3 provides for joinder of causes of action and it is permissible to join
together several causes of action in one suit. The first part permits the joinder by one
plaintiff of several causes of action against the same defendants jointly, whereas the
second part permits the

joinder by several plaintiffs jointly of several causes of action in which they are jointly
interested against the same defendants. For invoking this rule it is necessary that the
plaintiffs are jointly interested in the causes of action and the right to relief claimed by
the two plaintiffs must be in respect of or arising out of the same act or transaction and
they are not independently liable to defendant(s) and there must be some common link
connecting the plaintiffs in the causes of action. In this case the two agreements cannot be
said to be arising out of the same act and transaction. Both the plaintiffs have no link with
each other in the transaction except that the plaintiff No.1 executed General Power of
Attorney in favour of plaintiff No.2, but the suit was filed and plaint has been signed and
verified by the plaintiff No.1. I, therefore, hold that the reliefs claimed in the suit are
based on two distinct and separate causes of action. Where the plaintiffs combine two or
several causes of action in one suit the value for the purposes of court-fee is to be
determined by valuing each subject matter separately under section 17 of the Court-Fees
Act.

Order II Rule 6 provides that the Court is empowered to order separate trials. Rule 6
gives discretion to the Court to order separate trial when it appears that such causes of
action cannot be conveniently tried or disposed of together. Mr. Khawaja Shams-ul-Islam
relied upon reported case of Alam Khan and 3 others v. Pir Ghulam Nabi Shah &
Company (1992 SCMR 2375) in support of his plea that even if two distinct causes of
action have been combined plaint cannot be rejected.

The only defect in the plaint is that the plaintiffs have filed a suit combining two distinct
and separate causes of action based on two distinct subjects, but have paid the court-fees
payable on one suit of specific performance of one agreement. The plaint on this account
cannot be rejected, but separate trial can be ordered.

Where the plaintiffs combined two or more distinct subjects or causes of action, then each
claim on the basis of cause of action is to be valued separately and requisite court-fee is
to be paid on it.

Section 17 of the Court-Fees Act provides payment of Court-Fees on multifarious suits,


the same reads as under:--

"17. Multifarious suits.---Where a suit embraces two or more distinct subjects,

Page No. 5 of 10
the plaint or memorandum of appeal shall be chargeable with the aggregate
amount of the fees to which the plaints or memorandum of appeal in suits
embracing separately each of such subjects would be liable under this Act.

Nothing in the former part of this section shall be deemed to affect the power
conferred by the [Code of Civil Procedure, 1908 (Act V of 1908)] section 9."

Provisions of section 17 apply to suits which embraces two or more distinct subjects and
when a suit is filed combining multifarious causes of action, then each claim on the basis
of causes of action is to be valued separately and requisite court-fees is to be paid on it.
The plaint contains two independent reliefs in respect of two independent agreement in
respect of separate land on which court-fees is payable separately. Since this is not done
the plaint as a whole deemed to have been written and filed upon paper insufficiently
stamped. However, keeping in view the provisions of sub-rule (c) of Rule 11 of Order VII
CPC the plaint cannot be straightaway rejected unless the plaintiffs on being required by
the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails
to do so. Since the plaintiffs have filed the suit based on two distinct subjects having two
independent reliefs on different causes of action Court-Fees is payable separately. I,
therefore, direct the plaintiffs to further deposit Court-Fees amounting to Rs.15,000
within 15 days from the date of this order.

The other grounds urged by Mr. Asim Mansoor Khan, learned counsel for defendant No.1
is that the suit is time barred, therefore, liable to be rejected. He submits that first
agreement was executed on 24-5-1995 and the date of performance of the agreement was
fixed in clause (2) of the said agreement as 24-3-1996. He further submits that in terms of
clause (9) of the Agreement, physical possession of the said property was handed over to
the plaintiff No.2 and a General Power of Attorney with all powers was also executed in
favour of plaintiff No.2. He, therefore, submits that according to Article 113 of Schedule I
of the Limitation Act, the suit for specific performance can only be instituted within three
years from the date fixed in the agreement for the performance. He submits that in the
instant case, the balance payment was to be paid on 24-3-1996 which was the date fixed
in the agreement for performance and admittedly, the plaintiffs have failed to pay this
amount.

On the other hand, Mr. Khawaja Shams-ul-Islam, learned counsel for the plaintiffs has
submitted that since the defendants failed to get the said property vacated from the
encroachers, the plaintiffs were not liable to perform their part of agreement and to pay
the balance sale consideration as provided in the agreement.

With regard to other agreement, Mr. Asim Mansoor Khan, learned counsel for defendant
No.1 has submitted that the same was executed on 5th day of December, 1995 and the
date of performance was also fixed in clause (12) of the said agreement, which provides
that the balance sale consideration of Rs.39,221,250 will be payable as under:

(a) Within a period of 12 months of this Agreement Rs.5,000,000


(b) Within a period of 18 months of the Agreement Rs.20,000,000
(c) Within a period of 25 months of this Agreement Rs.14,221,250
Rs.39,221,250

He submits that the agreement fixed the date and amount to be paid by the plaintiff No.1
to the defendant No.1 and in terms of Agreement the plaintiff No.1 issued three cheques
as under:

(i) Cheque No.089503/14095 dated 5-12-1996 for Rs.5,000,000


(ii) Cheque No.089504/14095 dated 5-6-1997 for Rs.20,000,000
(iii) Cheque No.089505/14095 dated 5-1-1998 for Rs.14,221,250

Mr. Asim Mansoor Khan further submits that admittedly the plaintiff No.1 has instructed
its bank to stop the payment and admittedly committed the breach of the agreement. He
then submitted that the defendant No.1 by its letter dated 6-12-1996 has cancelled the
said Agreement and General Power of Attorney and has also served a legal notice upon
the plaintiffs dated 30-10-1997 and has also published a Public Notice in the Daily Dawn
Page No. 6 of 10
dated 11-11-1997. He submits that in view of Article 113 of Schedule-I of the Limitation
Act the suit for specific performance can be filed within three years from the date fixed
for the performance or if no such date is fixed when the plaintiffs have noticed that the
performance is refused. He submits that in terms of Agreement, the last date fixed for
performance was 5-1-1998 and that the agreement was cancelled on 30-10-1997, whereas
the suit was filed on 14-10-2002 beyond the period prescribed by Article 113. He further
submits that according to clause 13 of the Agreement the time was the essence of the
agreement.

On the other hand, Mr. Khawaja Shams-ul-Islam, learned counsel for the plaintiffs has
submitted that both the agreements are inter-linked with each other. He submits that since
the defendant No.1 failed to remove the encroachers from Plot No.SB-17 cheques were
stopped and final payments were not made. He further submits that the time was not the
essence of agreements and no date for performance has been fixed in the agreement and
merely mentioning the date of final payment in the agreement do not make the time
essence of the agreement. He submits that the cause of action for filing of this suit
accrued to the plaintiffs on 28-9-2002, when a notice was served upon the defendant No.1
for specific performance of the agreement.

In rebuttal Mr. Asim Mansoor Khan, submits that the plaintiffs since inception were not
willing to perform their part of contract and even in the said notice the plaintiffs have
demanded return of the amount paid by them to the defendant No.1 in respect of Plots
Nos.SB-1 to SB-17.

I have heard the learned counsel for the parties and perused the record.

The execution of the Agreements and payment of consideration in part performance as


well as handing over the possession of the properties to the plaintiffs by the defendant
No.1 have not been denied or disputed. Although the plaintiff No.2 pleaded that Plot
No.SB-17 is under encroachment, but p. clause (9) of the Agreement dated 24-5-1995, it
was clearly mentioned that the vendor (Defendant No.1) has handed over physical
possession of the said property to the vendee (Plaintiff No.2) along with rights of
booking, construction and publicity etc. A General Power of Attorney was also executed
in favour of the plaintiff No.2. By executing the General Power of Attorney in respect of
all the properties being Plots No.SB-1 to SB-16 in favour of Haji Abdul Rahim, who is
one of the partners of the plaintiff No. 1 and General Power of Attorney in respect of Plot
No.SB-17 in favour of plaintiff No.2 the defendant No.1 performed its part of contractual
obligations and now it is on the plaintiffs to pay the balance sale consideration as
provided in the Sale Agreement.

From perusing the correspondences exchanged between the parties, it is clear that the
plaintiffs deliberately failed to make the payments to the defendant No.1. In its letter
dated 22-12-1996 the plaintiff No.1 has stated as under:--

"You are worried about your payment, it is stated that not only payment of
Rs.5,000,000 but all payments have been stopped."

In another letter dated 8-11-1997 the plaintiff No.1 has submitted as under:

"You have been harassing us with the threat to cancel the said agreement as well
as Power of Attorney in respect of above purchase. Why don't you cancel the
same?"

Thereafter, the defendant No.1 served cancellation notice dated 30-10-1997. If the
contentions of Mr. Khawaja Shams-ul-Islam is taken to be correct that no date for
performance has been fixed then the limitation for filing the suit starts from the date
when the plaintiffs notice that the performance is refused. The defendant No.1 in its letter
dated 6-12-1996 has stated as under:--

"Consequent upon this breach on your part the whole Sale Agreement above said
as well as our General Power of Attorney dated 5-12-1995 in your favour have
become, ipso facto, infructuous and you are no more entitled to any right under

Page No. 7 of 10
the above said Agreement and General Power of Attorney.

Also, any rights already availed of by you in terms of the said Agreement and
General Power of Attorney since execution thereof by us on 5-12-1995 are of no
legal value or authority and not binding on us."

From the above it appears that through above letter the defendant No. 1 refused to
perform its part of contractual obligation in respect of agreement dated 5-12-1995 and
finally on 30-10-1997 when the legal notice of cancellation of agreement was served
upon the plaintiff No.1, who replied the same through its letter dated 8-11-1997. Mr.
Khawaja Shams-ul-Islam, learned counsel for the plaintiffs states that for rejection of
plaint under Order VII, Rule 11, C.P.C. only contents of the plaint have to be seen and not
the defence and that plaint cannot be rejected in parts. He further submits that legal notice
dated 30-10-1997 is not part of the plaint and cannot be considered.

Mr. Asim Manzoor Khan, learned counsel for the defendant No.1 has pointed out
Annexure D/4 of the plaint, which is reply of legal notice dated 30-10-1997 and submits
that the documents annexed with the plaint and other material available on record can
also be considered. He further submits that in this case two distinct causes of action have
been combined, therefore, if claim in respect of one agreement is time-barred the plaint
can be rejected partly. He further submits that two distinct causes of action were
deliberately combined with mala fide intentions and ulterior motives.

From the perusal of Agreement dated 24-5-1995 it appears that it was required to be
performed by the plaintiff No.2 on 24-3-1996 by making payment of the balance sale
consideration. The plaintiff No.2 has not mentioned in the plaint that he has ever made or
tried to make payment to the defendant No.1 on or before the date mentioned in the
agreement. From the perusal of other agreement dated 5-12-1995 it appears that the same
was finally required to be performed by the plaintiff No.1 on 5-1-1998 by making balance
sale consideration. This Agreement also contains clause 13, which reads as under:--

"That the payment of the balance instalments to the Vendors by the Vendees
within the agreed time is the very essence of this agreement and on- receipt of the
amount of this balance the Vendors shall sign all necessary papers for Sub-Lease
of the property in favour of the Vendees or their nominees and for registration of
Deeds in this respect in the records of the Registrar concerned."

From perusing above clause, it appears that further action on the part of defendant No.1 is
subject to receipt of balance amount. From the correspondence annexed with the plaint, it
is evident that plaintiff No.1 has specifically refused to perform its part of agreement
dated 5-12-1995 by stopping the payment. it is not the case of the plaintiffs that they have
tendered the amount on the dates fixed in the agreement and the defendant No.1 has
refused the same. The learned counsel for the defendant contended that the suit is barred
by Article 113 of the Limitation Act, which reads as under:--

"113. For specific Three The date fixed for the performance, or if no
performance of a years such date is fixed, when the plaintiff has
contract notice that performance is refused."

Reading of the above Article shows that it caters two situations i.e. one when time of
performance is fixed in the agreement and the other when the time is not fixed in the
agreement. In the first case the starting point of limitation is three years from the date
fixed for the performance in the agreement and in the later case the period starts running
from the date when the plaintiff has noticed that specific performance is refused by the
defendant in the reported case of Mst. Kulsoom and 6 others v. Mrs. Marium and 6 others
1988 CLC Karachi 870 it was held as under:--

"We are also inclined to hold that it is a well-settled position in relation to Article
113 of the First Schedule to the Limitation Act that if the date for performance of
a sale agreement of an immovable property is specified therein, the period of three
years shall commence from the specified date, but where no date for performance
is mentioned in the sale agreement, the three years period will commence from

Page No. 8 of 10
the date of refusal to perform."

The date of payment of balance sale consideration was fixed in both agreements and that
is the date of performance of agreements by the plaintiffs. It is not the case of the
plaintiffs that on that dates they have tried to make payment to defendant No.1. From the
perusal of the agreement it also appears that after executing General Power of Attorneys
by defendant No.1 nothing was left to perform on its part and the only part left is to be
performed by the plaintiffs by making payment to defendant No.1 on the date fixed in the
agreement. The plaintiffs cannot be allowed to take benefit of their own negligence and
breach of contract. The contention of Mr. Khawaja Shams-ul-Islam that since the time
was not the essence of agreement the time start running from the date of refusal to,
perform if taken to be correct even then it is the plaintiffs, who have refused to perform
the agreement by not paying the balance sale consideration on the specified dates and in
terms of section 55 of Contract Act the defendant No.1 has acquired the right to avoid the
contract. In any case whether the time is the essence of agreement or not the time started
running from the date of performance mentioned in the agreements. In the reported case
of Haji Muhammad Yakub v. Shahnawaz 1998 CLC 21 a learned Single Bench of this
Court has held as under:--

"Evidently the expression `time being essence of the contract' has been used in the
Contract Act not as a term of art but for connoting situation relating to remedies
available to the non-breaching parties. The Limitation Act was enacted in 1908
i.e. long after the Contract Act, 1872 had been enforced and the legislature is
presumed to know the existing state of law. Nevertheless the legislature in its own
wisdom did not provide that limitation in the first part of Article 113 would apply
only when time was of the essence of the contract and stipulated that whenever a
contract was required to be performed on a specified date, limitation had to be
reckoned from the date. I, therefore, find no force in the submissions that the first
part would be attracted only when time was of the essence of the agreement and
not otherwise."

Mr. Khawaja Shams-ul-Islam submits that finally limitation starts from the day the
plaintiffs served Legal Notice dated 28-9-2002 upon the defendant No.1. I find no force
in this submission. Once the full period of limitation is expired there will be no revival of
cause of action afresh from the date of notice. The Hon'ble Supreme Court in the case of
Province of Punjab v. Muhammad Hussain PLD 1993 SC 147 has held as under:--

"There is no principle known to law whereunder on expiry of full available period


of limitation revival of cause of action afresh and running of the limitation period
over again could take place either from the date of knowledge or the attornment of
the tenants or on obtaining of possession."

The upshot of the above discussion is that the relief claimed by the plaintiffs in relation to
agreement dated 5-12-1995 is barred by both the situations mentioned in Article 113 of
Limitation Act as neither the suit was filed within three years from the date mentioned in
the agreement, nor within three years when the defendant No.1 cancelled the agreement.
The relief claimed in relation to Agreement dated 24-5-1995 is barred by 1st situation of
Article 113 of the Limitation Act.

I also found force in the contention of Mr. Asim Mansoor Khan that if the suit was filed
combining two causes of action the plaint can be rejected partly for the relief, which
comes within four corners of Order VII, Rule 11, C.P.C. The plaint cannot be partly
rejected if the suit is based on one cause of action and reliefs claimed are arising from
one cause of action. The other factor is Order II, rule 6, C.P.C. which gives discretion to
Court to order separate trials or make such other order as may be expedient if the same
cannot be conveniently tried together, the rule is applicable only to those cases where the
joinder is in accordance with law and not to the cases of mis-joinder of cause of action or
causes of action are essentially of a different character. In this case if the Court find that
one claim arising out of one cause of action is barred by any law and the relief claimed on
the basis of other cause of action is maintainable, the Court can order separate trial and
while ordering separate trial can reject the plaint to the extent of relief/case based on
cause of action barred by law and proceed with the case/relief found on a cause of action

Page No. 9 of 10
not barred by law.

In view of the above, I hold that the suit is barred by Article 113 of the Limitation Act,
1908 and the plaint is, therefore, rejected under Order VII, Rule 11, C.P.C. with costs.

S.A.K./I-14/K Plaint rejected.

Page No. 10 of 10
2002 C L D 1170

[Lahore]

Before Mian Hamid Farooq, J

SAUDI-PAK INDUSTRIAL AND AGRICULTURAL INVESTMENT COMPANY


(PVT.) LIMITED, ISLAMABAD---Plaintiff

versus

MOHIB TEXTILE MILLS LIMITED LAHORE and 3 others---Defendants

C.O.S. No. 45 of 1998, heard on 21st December, 2001.

(a) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----S.10(3)(4)(5)(11) & (12)---Leave to defend suit---Failure to file amended


application---Effect---Defendant having not complied with the requirements of S.10(3)(4)
(5) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, failed to file
amended application in accordance with the provisions of the Financial Institutions
(Recovery of Finances) Ordinance, 2001 and no application under S.10(12) of the
Financial Institutions (Recovery of Finances) Ordinance, 2001, for leave to defend was
presumed to be pending---Suit was decreed in favour of the plaintiff in circumstances.

(b) Interpretation of statutes---

----Penalty clause in a statute---Effect---When a provision of law is couched with the


penal consequences then such provision of law is considered as a mandatory provision of
law and where no penal consequences entail to the noncompliance of a provision of law,
in that case such provision of law is taken as directory.

(c) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss.10(6) & 10(12)---Penal consequences for non filing of application for leave to
defend---Provisions of S.10(2) of the Financial Institutions (Recovery of Finances)
Ordinance, 2001 are mandatory in nature---Non-compliance of S.10(12) of the Financial
Institutions (Recovery of Finances) Ordinance. 2001, entails penal consequences as
provided under S.10(6) of the Financial Institutions (Recovery of Finances) ordinance,
2001.

(d) Financial Institutions (Recovery of Finance, Ordinance (XLVI of 2001)---

----S.9---Civil Procedure Code (V of 1908), O.II. R.3---Joinder of causes of actions---Suit


for recovery of two Bank loans--Maintainability---Two financial facilities were granted in
favour of the borrower by the financial institution, parties were same and the interest was
joint, such causes of action could be amalgamated in one suit---No illegality was
committed by the financial institution by combining two causes of actions in one
suit---Suit was maintainable in circumstances.

The Directorate of Industries and Mineral Development Government of the Punjab


through Director Lahore and 3 others v. Messrs Masood Auto Stores through Masood
Ahmad Malik, Partner, Lahore PLD 1991 Lah.174 ref.

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

----S.17---Financial Institutions (Recovery of Finances Ordinance (XLVI of 2001),


S.9---Suits for recovery of Bank loan---Multifarious suits---Court fees, fixation
of---Scope--Suits which embraces two or more distinct causes of action and when a suit
is filed combining multifarious causes of action, then each claim on the basis of causes of
action is to be valued separately and requisite court fee is to be paid on the suit under the
provisions of S.17 of the Court Fees Act, 1870.

Page No. 1 of 7
The Directorate of Industries and Mineral Development Government of the Punjab
through Director. Lahore and 3 others v. Messrs Masood Auto Stores through Masood
Ahmad Malik, Partner, Lahore PLD 1991 Lah. 174 ref.

(f) Banking Companies (Recovery of Loans, Advances Credits and Finances) Act
(XV of 1997)---

----S.9---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001),


S.9---Suit for recovery of Bank loan---Liquidated damages---Recovery---Such damages
are not recoverable in view of principle laid down in case titled Allied Bank of Pakistan
Ltd., Faisalabad v. Messrs Aisha Garments Ltd. reported as 2001 MLD 1955---Liquidated
damages were not granted in circumstances.

Allied Bank of Pakistan Ltd., Faisalabad v. Messrs Aisha Garments and others 2001
MLD 1955 rel.

(g) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss.9 & 10---Banker's Book Evidence Act (XVIII of 1891), S.2(8)---Suit for recovery
of Bank loan---Application for leave to defend rejection of---Photo copies of documents
produced by the plaintiff were not denied by defendants in their application for leave to
defend---Plaintiff in statement of account had claimed nothing but the repurchase price
that too in accordance with the agreements for finances and the statements of accounts
and duly verified/certified under the Banker's Books Evidence Act, 1891 ---Effect---As
the execution of the documents were not denied, the same were deemed to be admitted by
the defendants---Presumption of correctness was attached to the statements of accounts
and as the application for leave to defend was dismissed and there was no evidence in
rebuttal of the documents on record, the suit was decreed in circumstances.

Hamid Shabbir Azar for Plaintiff.

Muhammad Hussain Malik for Defendants.

Date of hearing: 21st December. 2001.

JUDGMENT

Saudi-Pak Industrial and Agricultural Investment Company (Pvt.) Limited (hereinafter


called the plaintiff) on 12-9-1996 has filed the present suit for the recovery of
Rs.51,812,333 alongwith liquidated damages, mark-up, costs and other expenses before
the then Banking Tribunal, Lahore (since defunct) against defendant No 1, being the
principal-debtor, wherein defendants No,2 to 4 have been sued in the capacity of
Director/guarantors, signatories of all the documentations and also, reportedly, the real
beneficiaries of the finance. It has been stated in the plaint that the plaintiff on the request
and guarantee of defendants Nos.2 to 4 allowed two financial facilities one of Rs.30
million and the second finance facility was to the tune of Rs.15 million, the terms and
conditions of which were accepted by the said defendants and in furtherance thereof they
entered into separate finance agreements on the basis of mark-up, dated 26-12-1995 and
11-1-1996. According to the plaintiff, consequent to the sanctioning of the finance
facilities and the execution of the aforestated finance agreements defendant No.1 also
executed demand promissory notes of Rs.33.254,795 and Rs.16,627,397 apart from two
separate undertakings, executed by defendants Nos.2 to 4 all in favour of the plaintiff.
Additionally, in consideration and acknowledgement to secure the said finance facilities
defendant No. l provided a security by pledge of shares, detailed in Annexure II of the
agreement of financing, pledge agreements, dated 26-12-1995 and 11-1-1996, were also
executed by the defendants and the said pledged shares were deposited by the B.R.R.
Security Vault, who are still holding over the custody of the said shares on behalf of the
plaintiff. In the above back-drop the plaintiff has contended in the plaint that the
defendants availed the said financial facilities, but later on failed to adhere to the terms
and conditions of the sanction letter and also failed to deposit any amount towards the
adjustment of their liability in respect of the aforesaid financial facilities, thus they

Page No. 2 of 7
became defaulters with the result that a sum of Rs.51,812,333 fell due against all the
defendants in the following manner:--

(a) Facility of Rs.30 million

Repurchase Price Rs.33,254,795

Liquidated damages as penalty


for delayed payment Rs.1,372,987

Total Rs.34.627,782

(b) Facility of Rs.15 million

Repurchase Price Rs.16.627.397

Liquidated damages as penalty


for delayed payment Rs.557,154

Total Rs.17,184.551

The case of the plaintiff is that despite the fact that the aforesaid sum fell due, yet the
defendants failed to repay the said amount despite various efforts and demands made by
the plaintiff from time to time, thus the defendants committed default, which necessitated
the filing of the present suit, on 12-9-1996, under the provisions of Banking Tribunals
Ordinance, 1984 (since repealed).

2. In response to the show-cause notice issued by the then Banking Tribunal, Lahore,
under section 6(2) of the Banking, Tribunals Ordinance, 1984, since repealed, the
defendants, on 10-10-1996, filed reply to the aforesaid show-cause notice, wherein it was
contended that the Tribunal has no jurisdiction to entertain the claim; that the suit is bad
for misjoinder of causes of action that the suit is insufficiently stamped; that the alleged
agreements and documents are invalid, inadmissible and of no legal value that defendants
Nos.2 to 4 have unlawfully been impleaded as defendants; that the plaint has neither been
signed nor filed by the duly authorized person and the plaint is not supported by any
statement of accounts. On merits, it was submitted that the mark-up agreement, dated
26-12-1995, contains clear interpolations thereby changing the due date of repayment of
facility extended to defendant No.1. In view of the said averments, it was prayed in the
reply that the suit of the plaintiff be dismissed as being incompetent and outside the
jurisdiction of the learned Tribunal.

3 During the pendency of the suit before the then Banking Tribunal. Banking Companies
(Recovery of Loans, (Advances Credits and Finances) Act, 1997, was promulgated
whereby the Banking Courts were established and the Banking Tribunals Ordinance,
1984 was repealed. According to section 7(6) of Act XV of 1997, all proceedings pending
before any Banking Tribunal under the Banking Tribunals Ordinance, 1984, stood
transferred or deemed to be transferred to the Banking Court, therefore, per force of
aforesaid provision of law the present suit was transferred to this Court and the same was
numbered as C.O.S. No-45 of 1998. After the transfer of the suit to this Court, pursuant to
the issuance of notice to all the defendants by this Court through the publication in the
newspaper, i.e. Daily Nawa-i-Waqt, defendant No.1 was represented, whereas defendants
Nos.2 to 4 were proceeded ex parte by this Court vide order, dated 9-6-1999. It appears
from the record that in the meantime defendant No.1 which was public limited company,
was ordered to be wound up by the learned Company Judge and official liquidator
namely, Malik Muhammad Hussain, Advocate, was appointed. Since that time onwards,
defendant No.1 is represented through the said learned official liquidator. It is discernible
from the record that uptil now defendants Nos.2 to 4 did not of file any application
seeking setting aside of ex parte order, dated 9-6-1999, which still holds the field.
Needless to mention that with the transfer of the suit to this Court the reply to the
show-cause notice, dated 10-10-1996, filed by the defendants, was, under the law, treated
as an application for the grant of leave to defend the suit on behalf of defendant No.1
only. On 30-8-2001, Financial Institutions (Recovery of Finances) Ordinance, 2001

Page No. 3 of 7
(XLVI of 2001) was promulgated and per force of section 29 of Ordinance XLVI of 2001,
repealed Act XV of 1997. However, according to section 7(6) of the latest Ordinance all
the proceedings pending in any Banking Court, including suit for recovery, shall stand
transferred and deemed to be transferred and heard by the Banking Court established
under the latest Ordinance, thus, the present suit, which was pending before the Banking
Court, constituted under Act XV of 1997, after the promulgation of the latest Ordinance,
and per force of section 7(6) .of the said Ordinance deemed to be transferred and pending
before this Court established under section 5 of the latest Ordinance. In the above
perspective the application for the grant of leave to defend the suit, filed by the
defendants, before coming into force of Financial Institutions (Recovery of Finances)
Ordinance, 2001, was deemed to be pending, therefore, when the case came up for
hearing for the first time on 8-10-2001, this Court per force of section 10(12) of the said
Ordinance of 2001, allowed a period of 21 days to the defendants for filing the amended
petition for leave to defend the suit in accordance with this Ordinance. Defendant No.1
purportedly filed an amended application, which was numbered as P.L.A. No. 127/B of
2001, whereas the other defendants neither filed any application seeking setting aside of
ex parte order, dated 9-6-1999, nor instituted any amended application for leave to defend
the suit despite the fact that the period, statutorily fixed, was allowed to the defendants.
Although defendant No.1 filed the aforenoted P.L.A. styled as the amended application
for the grant of leave to defend the suit under the new Ordinance, yet the perusal whereof
and the comparison, of the contents of both the applications manifests that the same is
verbatim copy of previously instituted application, inasmuch as the objections regarding
the jurisdiction of the Banking Tribunal, which were taken in the erstwhile application,
were also reiterated in the latest application. Now the admitted position is that ex-parte
order, dated 9-6-1999, has attained finality against defendants Nos.2 to 4 as they have
neither filed any amended application nor are being represented since 9-6-1999 and the
only leave application (P.L.A. No. 127-B of 2001), which is pending ,adjudication is on
behalf of defendant No. 1.

4. While arguing the application for leave to defend the suit, the learned official
liquidator, while reiterating the contents of the application in hand, has contended that the
suit is bad for misjoinder of causes of action as different transactions have been
amalgamated in one suit whereas separate suits for distinct causes of action should have
been filed; the plaint is insufficiently stamped, thus, the same is liable to be rejected; the
plaint has neither been signed nor filed by duly authorized person; that the statement of
accounts is incorrect and that the plaintiff is not entitled to claim liquidated damages as
the same is not permissible under the law. Conversely the learned counsel for the plaintiff
has opposed the grant of leave to defend the suit to defendant No.1 urging that as a matter
of fact no serious and bona fide dispute has been disclosed, defendant No.1 has not
denied the execution of the documents, whereas, in fact, the availment of the financial
facilities have been admitted by the said defendant and that as defendant No.1 failed to
adhere to the mandatory provisions of section 10(2) of Ordinance No.XLVI of 2001,
thereby failing to submit the amended application for leave to defend the suit, therefore,
the application in hand is liable to be rejected summarily.

5. In the above back-drop, now the pivotal question, which has arisen for determination
by this Court is as to whether the latest application (P.L.A. No. 127-B of 2001), which is
a true copy of the earlier application, filed by the defendants and was treated as an
application for leave to defend the suit for the purposes of Act XV of 1997, is a sufficient
compliance of the provisions of section 10(12) of Ordinance XLVI of 2001, and as to
whether despite allowing a period of 21 days to file the amended leave application,
defendant No.1 has complied with the provisions of section 10(12) of Ordinance, if not as
to whether the said application is liable to be rejected summarily. Perusal of section
10(12) of Ordinance XLVI of 2001, manifests that where an application for leave to
defend has been filed before coming into force of aforenoted Ordinance, the defendants
would be allowed a period of 21 days for filing an amended application for leave to
defend in accordance with the provisions of this Ordinance. It would be advantageous to
reproduce the aforenoted provisions of law, which is as follows:-

"10(12). Where an application for leave to defend has been filed before the coming into
force of this Ordinance, the defendant shall be allowed a period of twenty-one days from
the date of coming into force of this Ordinance, or from the date 'of first hearing

Page No. 4 of 7
thereafter, whichever is later for filing an amended application for leave to defend in
accordance with the provisions of this Ordinance." (Underlining is mine).

From the perusal of the above, it is evident that the words "an amended application for
leave to defend" and "in accordance with the provisions of this Ordinance" are of great
significance. It flows from the above that when an application for leave to defend is
already pending at the time of enforcement of latest Ordinance of 2001 then the
defendants shall be allowed a period of 21 days and are required through the filing of an
amended petition, thereby sufficiently complying with the provisions of subsections (3),
(4) and (5) of section 10 of Ordinance XLVI of 2001. These provisions of law provide
that the application for leave to defend shall be in the form of a written statement,
containing summary of substantial questions of law and facts and also specifying, certain
particulars to be furnished by the defendants regarding the finances, i.e. finances availed,
amount paid by the defendants and that such an application must be accompanied by all
the documents in support of substantial questions of law and facts raised by the
defendants. If the aforenoted provisions of law are placed in juxtaposition with the
contents of an application, filed by the defendants, seeking leave to defend the suit
(P.L.A. No. 127-B of 2001), the only irresistible conclusion, which can be drawn is that
defendant No.1 did not comply with the aforesaid provisions of law and had just copied
the contents of the show-cause notice submitted before the Banking Tribunal. I am of the
considered view that defendant No. l has comprehensively failed to file an amended
application within the parameters of section 10(12) and they have not complied with the
requirements of section 10(3) (4) and (5) of Ordinance XLVI of 2001; thus, the
defendants failed to file an amended application in accordance with the provisions of this
Ordinance, therefore, the presumption would be that no appli0cation under section 10(12)
is deemed to be pending.

6. Now the next question which will arise for determination is as to whether the
provisions of section 10(12) are mandatory or directory. The basic principle for the
interpretation of statutes is that when a provision of law is couched with the penal
consequences then the said provision of law would be considered as a mandatory
provision of law and where no penal consequences entail to the non-compliance of a
provision of law in that case the said provisions of law would be taken as directory.
Applying the said yardstick, now if any of the provisions of this Ordinance provide a
penal consequence for the non-compliance of the provisions of section 10(12) of the
Ordinance, then the said provisions would be considered as mandatory provision of law
otherwise the same will be treated as directory. To solve this question one has to go to
subsection (6) of section 10 of the latest Ordinance, which is reproduced below:--

"10(6). An application for leave to defend does not comply with the requirements of
subsections (3), (4) where applicable and (5) shall be rejected, unless the defendant
discloses therein sufficient cause for his inability to comply with any such requirement."

Undoubtedly it has been provided in section 10(6) of latest Ordinance (ibid) that when an
application for the grant of leave which does not comply with the requirements of
subsections (3), (4) and (5) of section 10 the same shall be rejected unless the defendant
able to show sufficient cause for his inability to comply with any such requirement. In
this case, admittedly, defendants Nos.2 to 4 (against whom an ex parte order, dated
9-6-1999, still stands) have not filed any amended application for leave to defend, did not
comply with the requirements of subsections (3), (4) and (5) of section 10 of Ordinance,
2001, and also failed to disclose any cause what to talk of sufficient cause for their
inability to comply with any such requirements. On the other hand, defendant No. 1
although has purportedly filed an application, yet as mentioned above, it cannot be
deemed to be an amended application for leave to defend the suit, as the same is photostat
of the previously instituted application and furthermore it does not comply with the
requirements of subsections (3), (4) and (5) of section 10.

7. Having gone through section 10(12) and section 10(6) (ibid), I am of the considered
view that the former provision of law is mandatory in nature, as the non-compliance of
the said provision of law entails the penal consequences as provided under section 10(6)
of Ordinance, 2001. In the present case despite the grant of period of 21 days, which is
statutorily fixed, the defendants failed to file the amended application thereby failing to

Page No. 5 of 7
comply with the requirements of section 10(3), (4) and (5), therefore, as per the
provisions of section 10(6) of the Ordinance. 2001 the application for leave to defend is
liable to be rejected, which I hereby do, and thereafter, per force of section 10(11) of
Ordinance, 2001, this Court is obliged to pass judgment and decree in favour of the
plaintiff and against the defendants.

8. Notwithstanding the fact that although now there is no application for leave to defend
the suit, which has been rejected, as discussed above, and after the dismissal of the said
application, this Court is not obliged to consider the contents of the leave application, yet
in the present case I am proceeding to deal with and decide the contentions raised by the
learned counsel for the defendant No.1. As regards the first contention raised by the
learned counsel regarding the misjoinder of causes of action in one suit suffice it to say
that Order II. rule 3, C.P.C. is a complete answer to that which empowers a plaintiff to
combine several causes of action against the defendants when these causes involve joint
interest. In the present case two financial facilities were granted in favour of defendant
No.1 by the plaintiff the parties are the same and the interest is joint, therefore, I am of
the view that these causes of action can be amalgamated in one suit and there is no
illegality committed by the plaintiff in filing one suit thereby combining two causes of
action in one suit. I am fortified in my views by a judgment reported as The Directorate
of Industries and Mineral Development Government of the Punjab through Director,
Lahore and 3 others v. Messrs Masood Auto Stores through Masood Ahmad Malik,
Partner. Lahore PLD 1991 Lah. 174 whereby a learned Division Bench of this Court
decided the said proposition of law and held that the plaintiff having several causes of
action against the same defendant jointly is entitled to amalgamate them in one suit. In
view of this, the contention of the learned counsel has no force and is hereby repelled.

9. Pursuant to the objection of the learned counsel viz. that the plaint is insufficiently
stamped. I have examined the original record and find that the plaintiff has paid a sum of
Rs.34,000 (being the maximum court-fee payable at the relevant point of time) on the
plaint. According to section 17 of Court Fees Act, 1870, where a suit embraces two or
more distinct subjects, the plaint or memorandum of appeal shall be chargeable with the
aggregate amount of the fees to which the plaints or memorandum of appeal in suits
embracing separately each of such subjects would be liable. Section 17 of the Court Fees
Act, 1870, is reproduced below:--

"17. Multifarious suits.---Where a suit embraces two or more distinct subjects, the plaint
or memorandum of appeal shall be chargeable with the aggregate amount of the fees to
which the plaints or memorandum of appeal in suits embracing separately each of such
subjects would be liable under this Act.

Nothing in the former part of this section shall be deemed to affect the power conferred
by the Code of Civil Procedure section 9."

It has been held in the case of Directorate of Industries and Mineral Development (supra),
that the provisions of section 17 applies to suits which embraces two or more distinct
causes of action arid when a suit is filed combining multifarious causes of action, then
each claim on the basis of causes of action is to be valued separately and requisite
court-fee is to be paid on it. In this case, as the plaintiff has paid the maximum court-fee,
therefore. it cannot be argued that the plaint is Insufficiently stamped. The said contention
is devoid of any force.

10. So far as the objection regarding the filing of the suit by unauthorized person is
concerned, upon the examination of the record I find that the plaint has been signed and
verified on oath by Muhammad Rashid Zahir on behalf of the plaintiff, who has been
authorized by a Board Resolution, passed by the plaintiff in its meeting, dated 11-2-1992,
through which said Muhammad Rashid Zahir is appointed as General Attorney thereby
authorizing him to sign/execute any document and to institute, conduct and prosecute any
suit in any Court of law and also to sign execute plaints, petitions etc. I further find a
general power of attorney dated 11-2-1992, on record executed by the plaintiff in favour
of aforesaid Muhammad Rashid Zahir wherein certain powers have been conferred upon
the said attorney. Muhammad Rashid Zahir has signed the plaint acting as attorney,
therefore, the contention of the learned counsel of defendant No. l that the suit

Page No. 6 of 7
filed/signed by an unauthorized person has no force, as the suit has been filed by a duly
authorized person and the plaint has been signed by a person competent to, sign under the
general power of attorney and under the Board resolution, as mentioned above.

11. In view of the objection raised by the learned counsel I have examined the two
statements of accounts, which are at pages 175 and 177 of the record and are certified in
accordance with law. Furthermore, in the said two statements of accounts, the plaintiff
has not charged any mark-up and has demanded only the repurchase price in both the
facilities, which is inconsonance with the repurchase price as mentioned in the finance
agreements. It appears that the objection regarding incorrect statements of accounts has
been taken only for the sake of objection, whereas in fact there is no substance in it.
However. I find from the statement of accounts that the plaintiff has charged certain
amounts as liquidated damages for late payment, which for the reasons to be recorded in
the succeeding paras. I am not inclined to grant to the plaintiff, therefore, now only the
repurchase price in accordance with the mark-up agreement is to be charged from the
defendants, to which defendant No.1 should not take any exception.

12. I find from the record that the plaintiff has claimed a sum of Rs. 13,72,987 and Rs.
5,57,154 (total amounting to Rs. 19,30,141) as liquidated damages. It is now settled-law
that in such-like cases the plaintiff is not entitled to claim liquidated damages as per the
principle laid down in Allied Bank of Pakistan Ltd., Faisalabad v. Messrs Aisha Garments
anal others 2001 MLD 1955 wherein it has been held that the plaintiff is not entitled to
recover the amount of liquidated damages, thus, the said amount had to be deducted from
the suit amount and after deducting the said amount, the suit amount is reduced to
Rs.49,87,72,192.

13. In view of the above discussion and reasons, the defendants have comprehensively
failed to raise substantial questions of law and facts to be tried by this Court in respect of
which evidence needs to be recorded, apart from the fact that the application in hand
(P.L.A. No. 127/13 of 2001) had already been rejected (para.7) as the defendants failed to
file an amended application for leave to defend. as discussed in the preceding paras., thus,
the present application (P.L.A.No.127/B of 2001), filed on behalf of defendant No. 1, is
hereby dismissed on the said counts.

14. With the dismissal of the said application for leave to defend the suit, under the law,
the allegations made in the plaint shall be deemed to be admitted. The plaintiff has
produced photo copies of all the documents on the basis of which it had filed the present
suit. execution whereof has not specifically been denied by the defendants in the
application for leave to defend the suit meaning thereby that the execution of all the
documents is deemed to be admitted by the defendants. Moreover, in the statement of
accounts the plaintiff has claimed nothing, but the repurchase price that too in accordance
with the two agreements for finances, furthermore the said statements are duly verified/
certified under the Banker's Books Evidence Act, 1891 to which the presumption of
correctness is attached. Additionally, there is no rebuttal of the aforementioned
documents on record.

15. For the foregoing reasons and findings, after deducting a sum of Rs. 19,30,141,
charged as liquidated damages, from the suit amount of Rs. 51,812.333 a decree for the
recovery of Rs. 498,72.192 with costs is passed in favour of the plaintiff and against all
the defendants jointly and severally. The plaintiff shall also been entitled for the costs of
funds to be determined under section 3(2) of Ordinance No.XLVI of 2001.

Q.M.H./M.A.K./S-391/L Suit decreed

Page No. 7 of 7
2002 C L C 1549

[Lahore]

Before Abdul Shakoor Paracha, J

Mst. PARVEEN AKHTAR---Petitioner

Versus

AZHAR ALI and 2 others---Respondents

Writ Petition No. 1823 of 1991, heard on 5th October, 2001.

(a) Specific Relief Act (I of 1877)---

----Ss. 39 & 42---Court Fees Act (VII of 1870), S. 7(iv)(c), Sched. II, Art.
17(iii)---Declaration and cancellation of document ---Court-fee--Where suit is to obtain
simple declaratory relief, court-fee payable in such suit is under Art. 17(iii) of the Sched.
II to the Court Fees Act, 1870---Not necessary by implication for the plaintiff in suit for
declaration to ask for consequential relief as contemplated under S.39 of the Specific
Relief Act, 1877---Where the plaintiff has not asked for such consequential relief it
cannot be held that he should have made a prayer for such a relief but if a suit is framed
as one for declaration that certain document is void and is to be treated as one under S.39
of the Specific Relief Act, 1877, and partly under S.42 of the Specific Relief Act, 1877, in
such a case the plaintiff is liable to pay ad valorem court-fee under S.7(iv)(c) of the Court
Fees Act, 1870.

(b) Specific Relief Act (I of 1877)---

----Ss. 39 & 42---Court-Fees Act (VII, of 1870), S.7(iv)(c), Sched.11, Art. 17(ii)---
Constitution of Pakistan (1973), Art. 199---Constitutional petition---Fixation of
court-fees---Suit for declaration and cancellation of agreement to sell was filed by the
plaintiff alleging the same to be void ab initio on the ground that it was not executed by
her but was an act of fraud---Defendant filed application under O. VII, R.11, C.P.C. for
the rejection of plaint as the plaintiff failed to fix ad valorem court-fee--- Application was
dismissed by the Trial Court but the Appellate Court allowed the same and directed the
plaintiff to affix the court-fee under S.7(iv)(c) of the Court Fees Act,
1870---Validity---Where the plaintiff had asked for declaration under S.42 and for
cancellation of the document under S.39 of the Specific Relief Act, 1877, she was liable
to pay ad valorem court-fee under S.7(iv)(c) of the Court Fees Act, 1870--Appellate
Court had, rightly exercised its jurisdiction vested in it under the law and directed the
plaintiff to affix the requisite court-fees.

Daibakilal Basak v. Iqbal Ahmed Qureshi and another PLD 1965 Dacca 439
distinguished.

Abdul Harrild alias MD. Abdul Hamid v. Dr. Sadeque Ali Ahmad and others PLD 1969
Dacca 357; Mst. Bhagan through L.Rs. v. Mubar.ik Begum and others NLR 1984 Civil
59; Ghulam Hussain Shah v. Hidayatullah Khan PLD 1981 Azad J&K 55; Mst. Nasim
Akhtar v. Muhammad Sabeel and others PLD 1991 Azad J&K 66 and Muhammad Afzal
Khan v. Muhammad Hayat Khan and another 2000 MLD 1611 ref.

M. A. Aziz for Petitioner.

Ms. Roshan Ara Begum, Asstt. A.-G. for Respondents.

Date of hearing: 5th October, 2001.

JUDGMENT

Page No. 1 of 4
Through this writ petition the petitioner has assailed the order, dated 28-1-1991 passed by
the Additional District Judge, Toba Tek Singh, praying that the same has been passed
without lawful authority and of no legal effect.

2. Mst. Parveen Akhtar, petitioner herein, filed a suit for declaration that agreement to sell
dated 12-10-1989 as well as receipt of the same date has been procured by the
respondents through fraud, misrepresentation and on the pretext that a power of attorney
is required from the petitioner to prosecute a pending suit in the Court of Civil Judge,
Kamalia titled Wahid Ullah v. Raja Nasir and others. The suit was contested by
respondent No. 1 by filing a written statement, and from the divergent pleadings of the
parties issues were framed. The respondent filed an application under Order VII, rule 11,
C.P.C. for amendment of para.7 of the plaint to show that the value of the suit for
purposes of jurisdiction and court-fee as Rs.3.lacs according to the value of the
agreement to sell. The learned Civil Judge dismissed the application of the respondent
vide order, dated 3-12-1990. In revision petition, the learned Additional District Judge;
Toba Tek Singh (respondent No.3) accepted the same and allowed the application of the
respondent under Order VII, rule 11, C.P.C. vide order, dated 28-1-1991 and determined
the value of the suit for the purposes of jurisdiction and Court as Rs.3 lacs. This order of
the learned Additional District Judge, dated 28-1-1991 has been assailed in this writ
petition.

3. The learned counsel for the petitioner contends that the .issues have been framed in the
suit from the divergent pleadings of the parties and without recording the evidence the
learned Additional District Judge was not competent to pass the impugned order for
determination of the value of the suit for purposes of court-fee. Further contends that the
suit filed by the petitioner was for declaration that the agreement has been obtained
through fraud and misrepresentation, therefore, the suit was correctly valued at Rs.200.

4. Conversely, the learned Assistant Advocate-General argued that the suit is not for
declaration simplicitor but in consequence of that the document, i.e. agreement to sell,
dated 12-10-1989 and receipt have been prayed to be cancelled. In this view of the
matter, she is of the opinion that the order of learned Additional District Judge is correct.

5. To my mind, a perusal of the plaint would show that the petitioner has filed suit under
section 42 of the Special Relief Act (I of 1877) for declaration that the agreement to sell
is fraudulent and also for cancellation of the same under section 39 of the said Act. In this
view of the matter, the interpretation of section 7(iv)(c) and Article 17(iii) Schedule II of
the Court Fees Act is involved. The suit for declaration that a certain document was void,
ab initio on the ground that it was not executed by the plaintiff but by somebody else and
the document has no effect on the right, title and interest of the plaintiff, is a suit to obtain
simple declaratory relief and as such the court-fee payable in the suit is under Article
17(iii) of the IInd Schedule to the Court Fees Act and not under section 7(iv)(c) of the
Act. It is not necessary by implication for the plaintiff in a suit for declaration to ask for
consequential relief as contemplated under section 39 of the Specific Relief Act and if the
plaintiff has not asked for such a consequential relief he cannot be held that he should
have made a prayer for such a relief. But if a suit is framed as one for declaration that
certain document is void and is to be treated as one under section' 39 of the Specific
Relief Act, 1877 and partly under that section and partly under section 42 of the Specific
Relief Act, the plaintiff would be liable to pay ad valoram court-fee under section 7(iv)(c)
of the Court Fees Act.

6. Now I on the touch stone of the above expression of the two different provisions of the
Court Fee Act, i.e. Article 1.7(ii) of the IInd Schedule and section 7(iv)(c) of the Court
Fees Act (VII of 1870), it is to be clinched that the plaintiff has asked for declaration
under section 42 and for cancellation of the document under section 39 of the Specific
Relief Act (I of 1877), and therefore, was liable to pay ad valorem court-fee under section
7(iv)(c) of the Act.

7. The prayer clause of the suit filed by the petitioners on 9-7-1990 reads as follows:--

URDU TYPING 1552

Page No. 2 of 4
In case reported as Daibakilal Basak v. Iqbal Ahmed Qureshi and another PLD 1965
Dacca 439 it was held: ----

“(a) A suit for a declaration that a certain document was void ab-initio on the
ground that it was not executed by the plaintiff but by somebody else and that the
document has not affected the right, title and interest of the plaintiff is a suit to
obtain a simple declaratory relief, and, as such, the, court-fee payable in the suit is
under Article 17(iii) of the Second Schedule to the Court Fees Act and not under
section 7(iv)(c) of that Act.”

The interpretation of the above two provisions i.e. section 7(iv) (c) of the Court Fees Act
along-with provision of sections 42 and 39 of the Specific Relief Act (I of 1877) came for
interpretation before a Division Bench of Dacca High Court in case reported as Abdul
Hamid alias MD Abdul Hamid v. Dr. Sadeque Ali Ahmad and others PLD 1969 Dacca
357 and it was held: --

“(d) Court Fees Act.(VII of 1870), S.7(iv)(c)---Suit for avoiding to which plaintiff
was party on grounds of fraud, misrepresentation and undue influence---A suit for
declaration with consequential relief---Ad valorem court-fee, held; payable in
circumstances.

A suit for avoiding documents to which the plaintiff was a party on grounds of fraud;
misrepresentation and undue influence is a suit for declaration with consequential relief
and in such view of the matter it was held that the trial Court was perfectly justified in
directing the petitioner to put in ad valorem court-fee."

In the above-referred two judgments of the Dacca High Court, the distinction has been
drawn in a suit for declaration simplicitor under section 42 of the Specific Relief Act and
suit for declaration along-with cancellation of a document under sections 42 and 39 of the
Specific Relief Act. The first judgment of Daibakilal Basak v. Iqbal Ahmed Qureshi and
another PLD 1965 Dacca 439 is distinguishable and is not applicable to the facts and
circumstances of the case and judgment in case Abdul Hamid alias MD. Abdul Hamid v.
Dr. Sadeque Ali Ahmad and others PLD 1969 Dacca.357 which is D.B. judgment of the
Dacca High Court, is to be followed, and it is held that the petitioner was liable to pay ad
valorem court-fee on the plaint of the suit. The above-referred judgment of Division
Bench of the Dacca High Court has been followed in case reported as Mst. Bhagan
through L.Rs. v. Mubarik Begum and there NLR 1984 Civil 59 and it was held that ad
valorem court-fee on suit for declaration and cancellation of sale-deed, which is not void
but void-able at option of the party whose consent was procured by fraud, was payable on
such a suit.

The plaintiff has fixed Rs.200 for the purposes of court-fee and jurisdiction in the plaint.
In this view of the matter, it is argued that the impugned order is not warranted under the
law. This contention/ argument has no force. It is not necessary for the court-fee and
jurisdictional value to be same except in cases covered by section 8 of the Suit Valuation
Act (VII of 1887). See case of Ghulam Hussain Shah v. Hidayatullah Khan PLD 1981
Azad J&K 55. In case reported as Mgt. Nasim Akhtar v. Muhammad Sabeel and others
PLD 1991 Azad J&K 66 while interpreting different provisions of the Court Fees Act.
(VII of 1870) the Court has ruled: --

“Where plaintiff could not ask or main relief viz. possession without asking for a
declaration, such suit would be one for declaration with consequential relief for
possession---Suit in such a case would be covered by provision of section 7(iv)(c)
and not by section 7(v)(d), Court Fees Act, 1870---Where, however, it was proved
that without seeking declaration, plaintiff was entitled to seek relief of possession
then suit would be covered by provision of section 7(v)(d), Court Fees Act,
1870---Where from the nature of the suit consequential relief could be allowed
only when plaintiff through declaration from competent Court had succeeded in
removing any other obstacle then in such-like cases declaration would be the legal
necessity for obtaining the real relief from the Court.”

Page No. 3 of 4
In a recent judgment reported as Muhammad Afzal Khan v. Muhammad Hayat Khan and
another 2000 MLD 1611 (D.B.) the Court has finally settled the matter at rest by
observing that, “where further relief would flow from declaration suit filed by plaintiff
fell under section 7(iv)(c) of Court Fees Act, 1870 read with Schedule 11, Article 17(iii)
of said Act.

For what has been discussed above, the order of the learned Additional District Judge,
Toba Tek Singh, dated 28-1-1991 is legally IC correct. He exercised his jurisdiction
vested in him under the law. This writ petition has no force and the same is dismissed.

Q.M.H./M.A.K./P-65/L Petition dismissed.

Page No. 4 of 4
2002 C L D 712

[Lahore]

Before Mian Hamid Farooq, J

INDUSTRIAL DEVELOPMENT BANK OF PAKISTAN---Plaintiff

versus

Messrs NAQI BEVERAGES (PVT.) LTD. and 7 others---Defendants

C.O.S. No. 131 of 1999; heard on 8th January, 2002.

(a) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV
of 1997---

---S.9---Civil Procedure Code (V of 1908), OJI, R.3---Causes of action, joinder of two


financial facilities were granted in favour of joinder by the Bank---Parties were same and
the interest was joint---Bank filed one suit wherein the causes of action were
joined---Validity---When the causes involve joint interest, plaintiff was empowered under
OII, R.3, C.P.C. to combine several causes of action against the defendants in one
suit---Causes of action in the present case, could be amalgamated in one suit and there
was no illegality committed by the plaintiff in filing one suit thereby combining two
causes of action---Suit was rightly instituted in circumstances.

The Directorate of Industries and Mineral Development, Government of the Punjab


through its Director, Lahore and 3 others v. Messrs Masood Auto Stores through Masood
Ahmad Malik, Partner, Lahore PLD 1991 Lah. 174 ref.

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

----S.17---Multifarious suits--Joining of causes of action--Insufficiency of


court-fee---Contention of the defendant was that court fee was insufficiently
stamped---Validity---Where the plaintiff had paid the maximum court fee, suit was not
insufficiently stamped but was properly valued in circumstances.

(c) Banking Companies (Recovery of Loans. Advances, Credits and Finances) Act (XV
of 1997)---

----S.10---Application for leave to defend---Plea not raised in the application


---Effect---Where the defendants had not taken a plea in their application for the grant of
leave to appear and defend the suit, they were precluded from pleading and raising such
plea at the time of arguments.

City Bank v. Tariq Mohsin Siddiqui and others PLD 1999 Kar. 196 ref.

(d) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV
of 1997)---

----S.17(2)---Qanun-e-Shahadat (10 of 1984), Art.17---Documents not attested by two


witnesses---Validity---All the documents relied upon by the plaintiff-Bank in support of
its claim were signed and executed before coming into force of Banking Companies
(Recovery of Loans, Advances, Credits and Finances) Act, 1997, therefore, simply on
account of the fact that some of the documents were not attested by two witnesses, would
not invalidate those document.

Messrs United Bank Ltd. v. Messrs Redco Textiles Ltd. and 7 others 2000 CLC 968 ref.

(e) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV
of 1997)---

Page No. 1 of 7
----Ss.9 & 22(2), proviso---Suit for recovery of Bank loan---Fresh cause of
action---Scope---Fresh cause of action arose in favour of the plaintiff on the date of
promulgation of the Banking Companies (Recovery of Loans, Advances, Credits and
Finances) Act, 1997, which was promulgated on 31-5-1997, therefore, the suit filed on
31-5-1997, was not barred by time.

(f) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of
1997)---

----S.10---Application for leave to defend---No substantial questions of law and fact


involved---Effect---Where the defendants had failed to raise substantial question of law
and facts to be tried by Banking Court in respect of which evidence needed to be
recorded application for leave to defend was rightly dismissed.

(g) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV
of 1997)---

----Ss. 9 & 10---Suit for recovery of Bank loan---Application for leave to defend,
dismissal of---Effect---With the dismissal of application for leave to defend the suit, the
allegations made in the plaint would be deemed to be admitted---Plaintiff had produced
photocopies of all the documents execution whereof was vaguely and feebly denied by
the defendants in their application for leave to defend the suit---Plaintiff had produced
certified/ verified copies of the statement of accounts pertaining to the account of the
defendant to which presumption of correctness was attached---Validity---Where there
was no rebuttal of the documents on record and of the statement of accounts, the suit was
decreed.

Allied Bank of Pakistan Ltd., Faisalabad v. Messrs Aisha Garments and others 2001
MLD 1955 ref.

Ch. Shehram Sarwar for Plaintiff.

Khalid Mahmood Ansari for Defendants.

Date of hearing: 8th January, 2002.

JUDGMENT

Industrial Development Bank of Pakistan, established under the Industrial Development


Bank of Pakistan Ordinance, 1961 (XXXI of 1961) (hereinafter called the plaintiff),
through M.A. Javaid, Senior Vice-President of the plaintiff-Bank, statedly, fully
conversant with the facts of the case and competent to depose the same, has filed the
present suit for the recovery of Rs.52,226,326.06 with compensatory charges and
liquidated damages etc., against defendant No. 1, a private limited company, being sued
in the capacity of a customer, wherein defendants Nos.2 to 7 have been arrayed as
defendants in their capacity of Directors/ guarantors and mortgagors, while defendant
No.8, reportedly, the owner of the property, statedly, mortgaged his property in favour of
the plaintiff as collateral security. It has been stated in the plaint that pursuant to the
request of defendant No. 1, the plaintiff sanctioned a financial facility, known as Local
Currency Financial Assistant under SBP LMM Scheme", amounting to Rs.19 Million,
vide letter, dated 23-11-1993 in favour of defendant No. 1 for the purchase of locally
manufactured machineries for setting up a factory at Rahim Yar Khan, which financial
assistance, at the request of the defendants, was subsequently enhanced to Rs.20.335
Million, vide letter dated 29-1-1994, which facility, was utilized by the defendants in its
entirety. Another financial facility, i.e. "Additional Local Currency Financial Assistance
under BOR Scheme", for a sum of Rs.2.950 Million was, additionally, sanctioned by the
plaintiff vide letter, dated 25-4-1995, for import of diesel generator, however, out of the
total sanctioned facility under this head, only an amount of Rs.1.475 Million was
disbursed, while the remaining sanctioned amount of Rs.1.495 Million was, later on,
withdrawn by the plaintiff vide letter, dated 6-6-1997. It has been averred in the plaint
that, the defendants secured the said financial facilities by executing/ handing over
charges/ securities documents in favour of the plaintiff elaborately described in para. 7 of

Page No. 2 of 7
the plaint. It is the case of the plaintiff that the said financial facilities were utilized by
defendant No.1 as mentioned above, and the re-payment of the financial facilities, under
LMM Scheme, was started w.e.f. 30-9-1995, whereas the re-payment of financial facility,
under B.O.R. Scheme, was started w.e.f. 31-3-1997, but the defendants could not pay
three instalments due against them during September, 1995, September, 1996 and
December, 1997, whereafter the company requested the plaintiff for rescheduling the
over dues and for changing the Directors of the Company, which request, although was
acceded to by the plaintiff, yet despite that the outstanding amount remained unpaid. The
charge on the assets of the Company was duly registered with the Registrar, Joint Stock
Companies, who issued requisite certificate of the registration of charge, which has been
placed on record. In the above backdrop the plaintiff has contended in the plaint that the
defendants failed to adhere to the terms and conditions of sanctioned letters, to make due
payment in time despite repeated promises and, thus, they became defaulters, with the
result that a sum of Rs.52,226,326.06 fell due against the defendants in the following
manner:--

Local Currency Financial Assistance under SBP LMM Scheme

1. Account No.05796-A4-O Rs.48,078,784.79

2. Account No.05796-BI-O Rs.700,503.44

Additional Local Currency


Financial Assistance under B.O.R. Scheme

3. Account No.05796-CB-O Rs.3.447,039.80

Total Amount Rs.52,226,326.06

According to the plaintiff, on account of persistent defaults on the part of the defendants
and failure to liquidate the outstanding liabilities, despite various demands made by the
plaintiff and its functionaries from time to time, necessitated the filing of the suit in hand,
on 23-12-1999, under the provisions of the Banking Companies (Recovery of Loans;
Advances, Credits and Finances) Act, 1-397 (hereinafter referred to as Act (XV of 1997).

2. In response to the summons issued by this Court, through all the modes of service
provided under the law, all the defendants on 12-2-2000, filed an application for leave to
defend the suit (PLA No.23-B of 2000). It was contended in the aforesaid application that
the suit has not been filed by duly authorized person and in this regard the plaintiff has
failed to produce any document on record; that dual rates of instalments had been
provided. in the agreement; that at the time of introduction of Circular No. 19, issued by
the State Bank of Pakistan, although defendant No. 1 applied to the plaintiff-Bank for the
revival package, yet the same was illegally refused; that the amounts being claimed by
the plaintiff are illegally claimed, grossly inflated and erroneously calculated; that the
statement of accounts is inadmissible in evidence; that the blank printed forms were got
signed from the defendants with intention to subsequently entrap them and that no cause
of action has accrued to the plaintiff. In view of the above pleas, it was prayed therein
that the application be accepted and the applicants be granted leave to' appear and defend
the suit and allowed to file written statement This application was replied by the plaintiff
thereby controverting the contents of the application with the prayer that the aforenoted
application be dismissed and the suit be decreed with special costs.

3. On 30-8-2001, the Financial Institutions (Recovery of Finances) Ordinance, 2001, was


promulgated and per force of section 29 of Ordinance 2001, repealed Act XV of 1997.
However, according to section 7(6) of the latest Ordinance of 2001, all proceedings
pending in any Banking Court, including suit for recovery, shall stand transferred or
deemed to be transferred and heard by the Banking Court established under the latest
Ordinance of 2001. The present suit alongwith aforenoted application, which were
pending before the Banking Court constituted under Act XV of 1997, after the
promulgation of latest Ordinance and per force of section 7(6) of the latest Ordinance,
were deemed to be pending for disposal before this Court, established under section 5 of

Page No. 3 of 7
Ordinance XLVI of 2001. As an application for the grant of leave to defend the suit (PLA
No.23-B of 2000), filed by the defendants, was pending in this Court before coming into
force of Ordinance XLVI of 2001, promulgated on August 30, 2001, therefore, when the
case came up for hearing, before this Court, for first time, this Court on 27-9-2001, per
force of section 10(12) of latest Ordinance of 2001, allowed the defendants a period of 21
days for filing the amended petition for leave to' defend the suit. Pursuant thereto the
defendants filed an amended application for leave to appear and defend the suit, however,
it appears from the record that the plaintiff, despite affording an opportunity to file the
reply, chose not to file the same.

4. In support of the application for the grant of leave to defend, the learned counsel for
the defendants has raised the following contentions:--

(1) That the plaintiff has combined distinct causes of action in one suit, which cannot
be clamped together, as the cause of action is different, documents/ evidence in all
the cases is different and the court-fee is to be paid for each claim, therefore, the
present suit cannot proceed;

(2) that the suit has been filed by the plaintiff on the basis of fabricated and forged
documents and they have not come to this Court with clean hands, as such not
entitled to any relief;

(3) that M.A. Javaid, Senior Vice-President, has no lawful authority to file the present
suit and no document of authorization has been placed on record;

(4) that all the documents, which have been made basis for the filing of the suit are
not attested by two witnesses, therefore, the said documents have got no legal
value and the same cannot be considered at the time of deciding of the suit; and

(5) that most of the documents said to have been executed on 6-2-1994 and
12-7-1995 while the suit was filed on 23-12-1999, therefore, the same is barred by
time;

Conversely, the learned counsel for the plaintiff, while controverting the contentions
raised by the learned counsel for the - defendants has submitted that the suit is
maintainable that the documents are neither forged or fabricated and that the suit has been
filed through a duly authorized person.

5. As regards the first contention raised by the learned counsel regarding the misjoinder
of causes of action in one suit, suffice it to say that Order II, rule 3, C.P.C. is complete
answer to that, contention which empowers a plaintiff to combine several causes of action
against the defendants in one suit when these causes involve joint interest. In the present
case two financial facilities were, granted in favour of defendant No. 1 by the plaintiff,
the parties are the same the interest is joint, therefore, I am of the view that these causes
of action can be amalgamated in one suit and there is no illegality committed by the
plaintiff in filing one suit thereby combining two causes of action. I am fortified in my
views by a judgment reported as The Directorate of Industries and Mineral Development,
Government of the Punjab, through its Director, Lahore and 3 others v. Messrs Masood
Auto Stores through Masood Ahmad Malik, Partner, Lahore (PLD 1991 Lahore 174)
whereby a learned Division Bench of this Court decided the said proposition of law and
held that the plaintiff having several causes of action against the same defendant jointly is
entitled to amalgamate them in one suit. In view of this, the contention of the learned
counsel has no force and is hereby repelled.

6. Pursuant to the objection of the learned counsel viz. that the plaint is insufficiently
stamped, I have examined the original record and find that the plaintiff has paid a sum of
Rs.15,000 (being the maximum court-fee payable at the relevant point of time) on the
plaint. According to section 17 of Court Fees Act, 1870, where a suit embraces two or
more distinct subjects, the plaint or memorandum of appeal shall be chargeable with the
aggregate amount of the fees to which the plaints or memorandum of appeal in suits
embracing separately each of such subjects would be liable. Section 17 of the Court Fees
Act, 1870, is reproduced below:--

Page No. 4 of 7
"17. Multifarious suits.---Where a suit embraces two or more distinct subjects, the plaint
or memorandum of appeal shall be chargeable with the aggregate amount of the fees to
which the plaints or memoranda of appeal in suits embracing separately each of such
subjects would be liable under this Act.

Nothing in the former part of this section shall be deemed to affect the power conferred
by the Code of Civil Procedure, section 9."

It has been held in the case of Directorate of Industries and Mineral Development (supra),
that the provisions of section 17 applies to suits which embraces two or more distinct
causes of action and when a suit is filed combining multifarious causes of action, then
each claim on the basis of causes of action is to be valued separately and requisite
court-fee is to be paid on it. In this case, as the plaintiff has paid the maximum court-fee,
therefore, it cannot be argued that the plaint is insufficiently stamped. The said contention
is devoid of any force.

7. So far as the next contention of the learned counsel is concerned, he has reinforced his
arguments, by referring to the memorandum of deposit of title deed (page 187) and
agreement of hypothecation (page 443), by saying that in these two documents, the dates
of execution of the documents and purchase of stamp-paper are different, therefore, these
documents are fabricated. I have examined the memorandum of deposit of title deed,
which has been notarized by the Notary Public on 1-8-1994, whereas the date of the
purchase of the stamp-paper is 19-6-1994. This document is unilaterally signed by
defendant No.1 confirming therein that said defendant has already deposited all the
documents specified in the Schedule with the plaintiff. Obviously, the plaintiff is not
party to this document. It is evident from the back portion of this document that the
stamp-paper was purchased by defendant No. 1 itself, the same was signed and executed
by defendant No. 1 and the plaintiff figures nowhere. The next document is the
agreement of hypothecation said to be executed on 27-4-1995, yet the date of purchase
has been shown as 10-7-1995. However, it is not legible from the back of this document
that who purchased the stamp-paper, but one thing is apparent that the same has been
signed on behalf of defendant No.1. This document has also been signed on behalf of
I.D.B.P. and has also been attested by two witnesses. Apart from this minor discrepancy,
the learned counsel for the defendants could not be able to point out any other legal
infirmity in this document going to the root of the matter. Furthermore, the defendants
have not taken this plea in their application for the grant of leave to appear.and defend the
suit. Under the law, they are precluded from pleading and raising the plea at the time of
the arguments, which has neither been pleaded nor raised in the application for the grant
of leave. Reliance is placed on City Bank v. Tariq Mohsin Siddiqui and others (PLD 1999
Karachi 196). In view of this, the argument of the learned counsel is without any legal
foundation and is hereby repelled, moreso, when other voluminous documents to which
no objection is raised by defendants, are on record.

8. As regards the objection of filing the suit by unauthorized person, upon the
examination of the record I find that the plaint has been signed and verified in accordance
with law by M.A. Javaid, Senior Vice-President of the plaintiff-Bank. Now the question
arises as to whether said M.A. Javaid has been authorized by the plaintiff to sign, verify
and institute the present suit or not. Under section 42 of the Industrial Development Bank
of Pakistan Ordinance, 1961, the Board is empowered to delegate all or any of the rights,
powers and duties vested, under this Ordinance, in the Board to the Managing Director or
any other officer of the Bank. I find from the record a Gazette notification dated
13-9-1974, whereby in exercise of powers under section 42 of I.D.B.P. Ordinance, 1961,
the Board has delegated certain powers to its officers, whereunder in clause 10(1) those
officers have been authorized in the name and on behalf of the Bank to do and transact
alone and singly without joining other attorney or officer of the Bank, to commence,
prosecute or continue and defend all actions suits or legal proceedings, whether civil,
criminal or revenue. Admittedly, under clause (10) of the said notification certain other
ancillary powers have also been conferred upon the persons, who can institute suits on
behalf of the plaintiff. In view of the above, it cannot be said that the instant suit has not
been filed by a duly authorized person, thus, the argument of the learned counsel for the
defendants is devoid of any force and in hereby repelled.

Page No. 5 of 7
9. So far as the next contention of the learned counsel is concerned, I have examined the
document and find that of course some of the documents are not attested by two
witnesses yet majority of the documents bear the signatures of two witnesses thereby
testifying the execution of documents, Even otherwise the documents were executed
during the period ranging from 6-2-1994 to 12-7-1995 and, thus, all the documents were
admittedly, executed prior to 31-5-1997, the date of the enforcement of Act XV of 1997.
Section 17(2) of the said Act, provides that all Banking agreements executed by or on
behalf of the Bank and a borrower or customer shall be duly attested 1n the manner laid
down in Article 17 of Qanun-e-Shahadat Order, 1984. Subsection (3) of section 17
provides that nothing contained in subsections (1) and (2) shall invalidate any document
executed prior to the coming into force of this Act". As all the documents relied upon by
the plaintiff Bank in support of its claim were signed and executed before coming into
force of Act XV of 1997, therefore, simply on account of the fact that some of the
documents are not attested by two witnesses, will not invalidate those documents. The
said proposition has been discussed in a judgment reported as Messrs United Bank Ltd. v.
Messrs Redco Textiles Ltd. -and 7 others (2000 CLC 968) wherein while dealing with
this aspect of the case and adverting to section 17(3) of Act XV of 1997, this Court hac;
held as under:--

"In view of subsection (3) of the aforesaid section, the documents even if obtained blank
and not attested in the manner laid down in Article 17 of the Qanun-eShahadat Order,
1984 are not invalid, if those documents were executed prior to coming into force of
Banking Companies (Recovery of Loans, Advances, Cfedits and Finances) Act, 1997 ...."

In view of the discussion on the subject, this contention of the learned counsel has also no
force.

10. Regarding the next contention of the learned counsel for the defendants viz., the suit
is barred by time, suffice it to say that upon the examination of the leave application, it is
discernible that the defendants have not taken this plea in the said application, therefore,
under the law they are precluded from raising the said plea at the time of argument. Be
that as it may, all the documents were executed during the period ranging from 6-2-1994
to 12-7-1995, whereas the present suit was filed on 23-12-1999. Proviso to subsection (2)
of section 22 of the Act XV of 1997, provides that "in revision to past transaction a fresh
cause of action will be deemed, to arise, for the purposes of limitation only, on the date
when this Act comes into force". Act XV of 1997, was promulgated on 31-5-1997, as
such per force of the aforesaid provision of law, a fresh cause of action arose in favour of
the plaintiff on the date of promulgation of the said Act, i.e. 31-5-1997, therefore, the I
suit filed on 23-12-1999, for a cause of action accrued on 31-5-1997, cannot be said to be
barred by time. The contention of the learned counsel has no force.

11. In view of the above discussion and reasons, the defendants have comprehensively
failed to raise substantial question of law and facts to be tried by this Court in respect of
which evidence needs to be recorded. Present application (P.L.A. No.23-B of 2000), filed
on behalf of the defendants being devoid of any merits, is hereby dismissed.

12. With the dismissal of the said application for leave to defend the suit, under the law,
the allegations made in the plaint shall be deemed to be admitted. The plaintiff has
produced photocopies of all the documents on the basis of which it had filed the present
suit, execution whereof has vaguely and feebly been denied by the defendants in their
application for leave to defend the suit. Moreover, the plaintiff has produced certified/
verified copies of the statement of accounts pertaining to the account of defendant No.1
to which presumption of correctness is attached. Apart from this recovery certificate,
showing the outstanding amount of Rs.52,226,326.06, has also been placed on record, to
which no objection was raised by the defendants. Additionally, there is no rebuttal of the
aforementioned documents on record, and the statement of accounts.

13. Although the amount of liquidated damages has not been included in the- statement of
account, yet upon the examination of the plaint, especially prayer clause of it, it is evident
that the plaintiff has claimed 20% as liquidated damages. Suffice it to say that in
such-like cases the plaintiff is not entitled to claim liquidated damages as per the law laid

Page No. 6 of 7
down in Allied Bank of Pakistan Ltd., Faisalabad v. Messrs Aisha Garments and others
(2001 MLD 1955) wherein it has been held that the plaintiff is not entitled to recover the
amount of liquidated damages, thus, the claim of the plaintiff qua the liquidated damages
is hereby rejected.

14. For the foregoing reasons and findings, a decree for the recovery of Rs.52,226,326.06
with costs is passed in favour of the plaintiff and against all the defendants jointly and
severally. Additionally, the plaintiff shall also be entitled for the costs of funds to be
determined under section 3(2) of Ordinance No.XLVI of 2001.

Q.M.H./M.A.K./I-107/L Suit decreed.

Page No. 7 of 7
2000 M L D 1611

[Supreme Court (A J & K)]

Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ

MUHAMMAD AFZAL KHAN---Appellant

Versus

MUHAMMAD HAYAT KHAN and another---Respondents.

Civil Appeal No. 182 of 1998, decided on 6th July, 1999.

(On appeal. from the judgment of the High Court, dated 1-6-1998 in Civil Revision
No.46 of 1395).

(a) Civil Procedure Code (V of 1908)---

----O.VII, Rr.1 & 11(b)(c)---Plaint---Court-fee payable on plaint--Determination of---In


order to determine proper court fee payable on plaint in a particular suit. correct principle
was that plaint as a whole should be looked at and it was substance of plaint and not its
ostensible form which really mattered for determination of court-fee.

(b) Civil Procedure Code (V of 1908)----

----O.VII, Rr.l & 11(b)(c)---Specific Relief Act (I of 1877), S.42---Court Fees Act (VII of
1870), S.7(iv)(c) & Sched. II, Art. 17(iii)---Suit for declaration---Court-fee
payable---Determination of---Plaintiff in his suit had sought a declaration to the effect
that he was owner in possession of suit land and also that gift deed and the sale-deed in
favour of respondents were illegal, ineffective and inoperative against his rights---Said
relief flew from declaration itself---Suit filed by plaintiff fell under S.7(iv)(c) of Court
Fees Act, 1870 read with Sched. II, Art. 17(iii) of said Act.

Muhammad Suleman and another v. Javed Iqbal and others PLD 1985 SC (AJ&K) 1;
Mst. Nasim. Akhtar v. Muhammad Sabeel and another PLD 1991 Azad J&K 66 and
Ghulam Hussain Shah v. Hidayat Ullah Khan PLD 1981 SC' (AJ&K) 55 ref.

(c) Specific Relief Act (I of 1877)---

----S.42---Court Fees Act (VII of 1870), S.7(iv)(c) & Sched. II, Art. 17(iii)-- Suit for
declaration---Court-fee payable---Declaration sought for under S.42 of Specific Relief
Act, 1877, must relate to title or to any legal character or to any right as to any
property---Said suit would fall under S.7(iv)(c) of Court Fees Act, 1870, read with Sched.
II, Art.17(IIl) of said Act---Where specific relief claimed in a declaratory suit was either
surplusage or consequential relief same would flow from original relief of declaration
claimed in plaint and suit would thus fall under Sched. II, Art.17(iii) of Court Fees Act,
1870, but if consequential relief was not outcome of original declaratory relief then suit
would fall out of ambit of abovesaid provisions of law---Plaintiff in his suit had asked for
a declaration to the effect that he was owner in possession of suit land and had prayed for
a further relief that gift deed and sale-deed were illegal and ineffective on his right, said
further relief would flow from declaration---Said suit would fall under S.7(iv)(c) of Court
Fees Act, 1870 read with Sched. II, Art. 17(111) of the said Act.

Miss Nasim Akhtar v. Muhammad Sabeel and another PLD 1991 Azad J & K 66 ref.

Ch. Muhammad Ibrahim Zia, Advocate for Appellant.

Syed Mushtaq Hussain. Gillani, Advocate for Respondents.

Date of hearing: 13th May, 1999.

Page No. 1 of 4
JUDGMENT

MUHAMMAD YUNUS SURAKHVI, J.---This appeal by way of leave of the Court, is


directed against the order, passed by the High Court on 1-6-1998, whereby the suit filed
by the appellant, herein, in the Court of Additional District Judge, Muzaffarabad was
transferred to the Court of Sub-Judge, Hattian.

2. The brief facts of the case are that according to the appellant he was owner in
possession of suit land measuring 9 Kanals and 4 Marlas, alongwith a house constructed
over the same. A gift-deed of the said property is purported to have been executed in
favour of respondent No.1, Muhammad Hayat Khan, by the appellant on 15-8-1992. On
the basis of aforesaid gift-deed respondent No.1, Muhammad Hayat Khan, executed a
sale-deed in favour of Mst. Sanwar Jan, respondent No.2, for a consideration of
Rs.80,000. The plaintiff appellant, herein, challenged the said gift-deed on the basis of
non-delivery of possession and fraud initially in the Court of District Judge, Muzaffarbad,
who made it over to Additional District Judge, Muzaffarabad and sought the cancellation
of the gift-deed and the sale-deed and also sought perpetual injunction that respondents
should refrain from interfering in his possession. The respondents field a cross suit in the
Court of Sub-Judge, Hattian. The learned Additional District Judge framed eight issues in
the light of pleadings of the parties and after hearing the arguments on preliminary issues
transferred the suit to the Court of Sub-Judge, Hattian, wherein the cross suit was sub
judice holding that in view of jurisdictional value and as the suit was a declaratory one, it
was triable by the Court of Sub-Judge and not by the Additional District Judge. The
appellant, herein, filed a revision petition in the High Court contending therein that the
suit pending in the Court of Sub-Judge, Hattian should have been transferred to the Court
of Additional District Judge and not the suit filed by the appellant to the Court of
Sub-Judge. The High Court after hearing the parties observed that the suit filed by the
appellant herein, was not a suit for declaration with consequential relief rather it was a
suit for simple declaration and thus in view of its jurisdictional value it was to be heard
by the Sub-Judge, Hattian and not by the Additional District Judge. It is the aforesaid
order of the High Court, dated 1-6-1998, which is the subject of controversy, in the
present appeal.

3. In support of appeal it was vehemently contended by Ch. Muhammad Ibrahim Zia, the
learned counsel for the appellant, that the High Court committed an error in holding that
the suit filed by the appellant was a suit for simple declaration. The learned counsel
submitted that the suit was for a declaration with consequential relief and it was
discretionary with the plaintiff to fix its jurisdictional value. The learned counsel pressed
into service the submission that as the sale-deed executed by respondent No. l in favour
of respondent No.2 was for a consideration of Rs.80,000, the Additional District Judge
had the jurisdiction to try the suit and not the Sub-Judge. The learned counsel in support
of his contentions cited reported cases titled Muhammad Suleman and another v. Javed
Iqbal and others (PLD 1985 SC (AJ&K) 1), Mst. Nasim Akhtar v. Muhammad Sabeel
and another (PLD 1991 Azad J & K 66) and Ghulam Hussain Shah v. Hidayat Ullah
Khan (PLD 1981 S C (A J & K) 55)

4. In reply it was contended by Syed Mushtaq Hussain Gillani, the learned counsel for the
respondents, that the suit filed by the appellant was for a simple declaration. The mere
fact that out of the suit of declaration a consequential relief naturally flows, does not
bring the suit outside the ambit of the declaration. By elaborating his point of view the
learned counsel submitted that if the consequential relief automatically flows from the
declaration, then such a relief cannot be termed as consequential relief and the suit would
be deemed to be one for declaration only and not for a declaration with consequential
relief. The learned counsel contended that the cases relied upon by the learned counsel for
the appellant titled Muhammad Suleman and another v. Javed Iqbal and others (PLD
1985 SC (AJ&K) 1) and Mst. Nasim Akhtar v. Muhammad Sabeel and another (PLD
1991 Azad J&K 66) also support the contention of the respondents.

5. After hearing the respective contentions of the learned counsel for the parties and
perusing the record, it may be stated that in order to determine the proper court-fee

Page No. 2 of 4
payable on the plaint in a particular suit, the correct principle is that plaint as a whole
should be looked at and it is the substance of the plaint and not its ostensible form which
really matters. In the present case the plaintiff/appellant has sought a declaration to the
effect that he is owner in possession of the suit land and a further relief that the gift-deed
and the sale-deed on its basis are illegal, ineffective and inoperative as against his rights.
The aforesaid reliefs flow from the declaration itself. Therefore, the suit falls under
section 7(iv)(c) of the Court Fees Act read with Schedule II, Article 17(iii) of the Court
Fees Act. In a case reported as Muhammad Suleman and another v. Javed Iqbal and
others (PLD 1985 SC (AJ&K) 1) it was observed by Raja Muhammad Khurshid Khan,
C.J. (as he then was), at page 27 of the report as follows:--

"Suits falling under section 7(iv)(c) of the Court Fees Act not being included in
section 8 of the Suits Valuation Act, are governed by the general rules enacted by
the section to the effect that in case of suits not specifically mentioned in the
section, the value for the purposes of court-fees determines the value for the
purposes of jurisdiction. The Court Fees Act was passed in 1870 while the Suits
Valuation Act was enacted 17 years later. To me the object of section 8 of the
Suits Valuation Act is to fix the value of the suits for the purposes of jurisdiction
and not for the purposes of court fees. In fact the section assumes that the value
for the purposes of court-fees has been determined or is determinable; and this
determines the value for the purposes of jurisdiction. The section has received this
construction in a large number of cases including the Privy Council decision
Sunderabai v. The Collector of Belgium (ILR 43 Bom. 376)..."

It was further observed at page 33 of the report as follows:--

"The principle is that the Court has- to look at the substance of the plaint in each
case to determine whether the suit is really one for a declaration with a
consequential relief or is merely a camouflage attempt in words to disguise a
specific relief claimed in the garb of a suit for declaration occupied with a
consequential relief. With this proposition I may say with all respect that I entirely
agree and hold that the suit was triable by the Sub-Judge."

6. The suits for declaration are regulated by section 42 of the Specific Relief Act. Under
the aforesaid section the declaration sought for must, relate to the title or to any legal
character or to any right as to any property.' The said suit shall fall under section 7(iv)(c)
of the Court Fees Act read with Schedule II, Article 17(iii) of the Court Fees Act. Where
the specific relief claimed in a declaratory suit is either surplusage or the consequential
relief flows from the original relief of declaration, claimed in the plaint, the suit will fall
under Schedule 11, Article 17(iii) of the Court Fees Act, as mentioned above, but if the
consequential relief is not the outcome of the original declaratory relief then the suit shall
fall out of the ambit of the provisions referred to above. The High Court, while agreeing
with the aforesaid view-point, has given an illustration in the following way:--

"The example shall clarify the position that if suit is filed for declaration with
regard to any land wherein a declaration is sought for being owner in possession
and a further relief in the shape of permanent injunction restraining the defendant
from interfering in plaintiff's possession, is sought, the suit shall come under the
aforesaid provisions of Schedule II, Article 17(iii) of the Court Fees Act.
Therefore, to ascertain the nature of the suit, it is necessary to see the averments
made in the plaint taken as a whole. In the case where it is not necessary to get a
declaration of any sort and the sole thing which is necessary for the plaintiff is to
ask for possession, the suit will be one for possession and shall be dealt with
under section 7(v)(d) of Court Fees Act and not for declaration and consequential
relief for possession."

7. In the instant case as the plaintiff-appellant has asked for a declaration to the effect that
he is owner in possession of the suit land and prayed for a further relief that the gift-deed
and sale-deed are illegal and uneffective on his rights, the aforesaid further relief, in our
view, flows from the declaration. Therefore, the suit will, in our view, fall under section
7(iv)(c) of the Court Fees Act read with Schedule II, Article 18(iii) of the Court Fees Act.

Page No. 3 of 4
In a case reported as Mst. Nasim Akhtar v. Muhammad Sabeel and another (PLD 1991
Azad J&K 66) the following observations were recorded at page 69 of the report:--

In the present case, the plaintiff firstly has to prove that he had paid Rs.6 lacs to
his father deceased Ghulam Rasool to purchase the suit land alongwith house for
the plaintiff. He has also to prove that decree allowed in favour of Mst. Nasim
Akhtar on October 9, 1986 with regard to the suit land on the admission of
Ghulam Rasool deceased, was void, ineffective and inoperative against his rights.
Without removing these obstacles, the decree for possession cannot be allowed in
his favour. As held in the earlier part of this order the entire plaint has to be
scrutinized in order to ascertain the real nature of the suit. In the instant case, the
relief of possession is implicit in the relief of declaration. Therefore, under section
7(4)(c) where two reliefs; one for declaration and the other as consequential relief
for possession, have been sought for, it would bring the case within the ambit of
section 7(4)(c) of the aforesaid Act."

8. The other authorities referred to by the learned counsel for the parties need not be
discussed in detail because of the points involved having been already decided by this
Court as well as by the High Court of Azad Jammu and Kashmir.

9. As the counter-suit was also pending in the Court of Sub-Judge, Hattian, therefore, the
present case was rightly transferred to the trial Court which had the jurisdiction to try the
same and to decide them by consolidating both the suits.

10. The nutshell of the above discussion is that finding no force in this appeal, the same
stands dismissed without any order as to costs.

H.B.T./26/SC(AJ&K) Appeal dismissed.

Page No. 4 of 4
1994 C L C 1664

[Lahore]

Before Mian Nazir Akhtar, J

Ch. MEHMOOD AHMED ---Petitioner

versus

Mst. SARWAR SULTANA and others---Respondents.

C.R. No. 1331 of 1986, decided on 23rd August, 1993.

Court Fees Act (VII of 1870).-

----S. 7(iv)(b) & Art. 17(vi)---Suit for partition of property jointly owned by
parties---Court fee---Mode of payment---Suit for partition of joint property can be filed
on payment of Rs.15 as court-fee under Art. 17(vi), Court Fees Acts 1870, which covers a
suit where it is not possible to estimate money value the subject-matter of dispute and
which is not otherwise provided for under Court Fees Act---Ordinarily, in partition suit, it
was not possible to estimate money value of the subject-matter correctly and it was left to
be decided finally after recording evidence of both parties---Court would thereafter,
require plaintiff to pay deficit court-fee on basis of final determination of the value of
subject-matter in question---Provision of S: 7(iv)(b) of the Act was not applicable in such
cases---Where, however, any person was ousted from the property and his claim to a
share therein was denied by other co-owners then the court-fee was payable under S.
7(iv)(b) for enforcing a right to share in joint family property---There being no denial of
plaintiffs, entitlement to a share in a property in question, mere fact that in evidence some
estimate of the value of property had been given was not enough to apply provision of
S.7(iv)(b), Court Fees Act for payment of ad valorem court-fee at present stage.

Kaluram acid another v. Mehtab Bai and another AIR 1959 Madh. Pra. 181; Jogesh
Chandra Das v. Amulya Kumar Majumdar and others AIR 1957 Tripura 7; Santosh s/o
Gopala and another v. Rama s/o Ragho and others AIR 1949 Nag. 305; Nawab Syed
Muhammad Hashim° Ali Khan and another v. Iffat Ara.Hamidi Begum and others AIR
1942 Cal. 180; Maung Ohn Tin v. Prmpsrm. Chettyar Firm and others AIR 1929 Rang.
311; Muhammad Sakhi and another v. Abdul Rahim and another 1990 ALD 219;
Muhammad Sohail and others v. Ghulam Rasul and another NLR 1991 SD 375;
Muhammad Sohaul and others v. Ghulam Rasul and another 1989 IIJ 91 Comp 41; Mst.
Razan.Bibi and others v. Haji Muhammad Younus and 6 others 1990 ALD 338(2); P.R.
Srinivasa Iyei and others v. K.S. Krishnaswamy Iyer and others AIR 1931 Mad. 49; and
Secretary of State v. A.R. Lakhanna AIR 1933 Mad.430 ref. .

Amjad Hussain Syed for Petitioner.

Syed Shakir Ali Rizvi for Respondents.

Dates of hearing: 17th March and 18th November, 1992.

JUDGMENT

This revision petition arises out of a suit for partition filed by the respondents on
3-7-1983 in the Court of the Civil Judge, Lahore which is still pending. The
petitioner/defendant filed an application for a direction to the plaintiffs/respondents to
pay ad valorem court-fee which was dismissed by the trial Court vide the order dated
1-2-1986. The said order has been assailed in the present revision petition.

2. The petitioner's learned counsel submits that respondents Nos. 1 to 6 were out of
possession (as admitted in para 6 of the plaint) and were bound to pay ad valorem
court-fee on the 1/3rd share claimed by them in the disputed property. Moreover * the
plaintiffs had stated in the plaint that the petitioner/defendant was occupying the first and

Page No. 1 of 3
second floor of the house, therefore, ad valorem court-fee had to be paid for the relief of
possession as well. In support of his contention he places reliance on the following
judgments:-

Kaluram and another v. Mehtab Bad and another (AIR 1959 Madhya Pradesh 181),

Jogesh Chandra Das v. Amulya Kumar Majumdar and others (AIR 1957 Tripura 7),

Santosh s/o Gopala and another v. Rama s/o Ragho and others (AIR 1949 Nagpur 305),

Nawab Syed Muhammad Hashim Ali Khan and another v. Iffat Aia Hamidi Begum and
others (AIR 1942 Calcutta 180) and

Maung Ohn Tin v. PRMPSRM. Chettyar Firm and others (AIR 1929 Rangoon 311).

3. On the other hand, the learned counsel for the respondents urged that the exact value of
the property was not ascertainable at present and the suit could be filed on payment of
Rs.15 as court-fee and balance paid at the time of final decree. He adds that the
respondents can give their own valuation of the property for purposes of court-fee and
jurisdiction. They have paid proper court-fee at present and shall make good the
deficiency of the court-fee at the appropriate stage. He places reliance on the following
judgments:-

Muhammad Sakhi and another v. Abdul Rahim and another (1990 ALD 219),

Muhammad Sohail and others v. Ghulam Rasul and another (NLR 1991 SD 375),

Muhammad Sohail and others v. Ghulam Rasul and another (1989 ILJ 91 Comp 41
(Lahore (India)) and

]Mst. Razan Bibi and others v. Haji Muhammad Younus and 6 others (1990 ALD 338(2)
(Karachi).

4. The suit filed by the respondents is essentially one of partitions of the property jointly
owned by the parties. Such a suit can be filed on payment of Rs.15 as court-fee under
Article 17 (vi) of the Court Fee Act which provides fixed court-fee of Rs.15 only for
certain cases. Article 17 (vi) covers a suit where it is not possible to estimate at a money
value the subject matter in dispute and which is not otherwise provided for under the
Court Fee Act. In a partition suit ordinarily it is not possible to estimate the money value
of the subject-matter correctly and is left to be decided finally after recording evidence of
both the parties. Thereafter, the Court requires the plaintiff to pay the deficit court-fee on
the basis of the final determination of the value of the subject matter in dispute. The
provision of section 7 (iv)(b) are not applicable in such cases as held in Santosh and
another v. Rama and others (AIR (36) 1949 Nagpur 305), P.R. Srinivasa Iyer and others v.
K.S. Krishnaswamy Iyer and others (AIR 1931 Madras 49) and Secretary of State v. A.R.
Lakhanna (AIR 1933 Madras 430). It is only in cases where a person is ousted from the
property and. his claim to a share therein is denied by the other co-owners that the
court-fee is payable under section 7(iv)(b) for enforcing a right to share in the joint
family property. In the present case, there is no denial of the respondents, entitlement to a
share in the property in dispute. The mere fact that in the evidence sortie estimate of the
value of the property has been given is not enough to apply the provisions of section 7(iv)
(b) for payment of ad valorem court-fee at this stage. P.W.1. Mst. Sarwar Sultana had
stated that she was unable to give the value of the property and then stated that according
to her estimate it would be worth Rs.5/6 lacs. P.W.2 Mrs. Azra Riaz stated that the value
of the house in dispute exceeds Rs.4 lacs. P.W.3 Shahidah Rizmi stated that she did not
know the price of the house and could not say whether it was more-or less than Rs.4 lacs.
Thus the question regarding the estimate of the value of the property still remains in a
liquid form and has to be determined after recording evidence of the defendant. The 8
plaintiffs/respondents have rightly affixed the court-fee of Rs.15 at this stage and cannot
be required to pay ad valorem court-fee under the provision of section 7(iv)(b) of the
Court Fees Act. This view finds support from the judgments in the cases of Mst. Razan
Bibi, and Muhammad Sohail and others relied upon by the respondent's learned counsel.

Page No. 2 of 3
The judgments relied upon by the petitioners' learned counsel proceed on their own
distinguishable facts and are not applicable in the present case.' As mentioned above the
plaintiffs are not excluded claimants from the joint family property. Their claim as heirs
of the common ancestor Khushi deceased as admitted by the petitioner/defendant.
Therefore, the judgment in the case of Kaluram and another heavily relied upon by the
petitioner's learned counsel which relates to suit for partition by an excluded co-parcener
is not relevant. The case of Jogaish Chandar Das relates to the question of jurisdictional
value of the suit. It was held that the plaintiff who seeks partition of his share out of a
larger property should not be compelled to value his suit for the purposes of jurisdiction
on the value of the entire property and that valuation for the purposes of jurisdiction is to
be determined according to the value of the plaintiffs' share. Similarly the other
judgments relied upon by the petitioner's learned counsel relate to cases of ouster
requiring determination of entitlement in the property first and therefore, are not relevant.

5. For the foregoing discussion, I find no merit in this petition which is dismissed. The
parties are left to bear their own costs.

AA/M-1452/L Revision dismissed.

Page No. 3 of 3
1993 S C M R 683

[Supreme Court of Pakistan]

Present: Nasim Hasan Shah and Rustam S. Sidhwa, JJ

ASLAM INDUSTRIES LTD., KHANPUR---Appellant

versus

PAKISTAN EDIBLE CORPORATION OF PAKISTAN.


and others---Respondents

Civil Appeal No. 163 of 1982, decided on 11th March, 1991.

(From the judgment of the Lahore High Court, Bahawalpur Bench, dated 18-9-1982
passed in C.R. 119 of 1982/BWP).

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

----S.17 & Sched. 1, Art.1, proviso---Constitution of Pakistan (1973) Art.185(3)---Leave


to appeal was granted to consider whether the provision S.17, Court Fees Act, 1870 was
subject to the provisions of proviso to Art.l Sched. I of the said Act.

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

----S.17---Suit of a multifarious nature falling under S.17 of the Act ---Court-i payable on
such suit would be the aggregate of the fee separately chargeable on the separate causes
of action.

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

----Sched. 1, Art.1 [as amended. by Punjab Finance Act (XVI of 1973), S.8J
S.17---Words "not otherwise provided for in this Act" appearing. in Sched Art.l refer to
the provisions made for plaints and memoranda of appeal certain suits referred to in
Sched. II of. Court Fees Act, 1870---Suit o multifarious nature not being one specifically
provided for in, the Court F Act, 1870 would be governed by Art.l of Sched. I of-the Act.

(d) Court Fees Act (VII of 1870)•--

----Sched. I, Art. l, Sched 11 & S.17---Application of Scheds.1, II & S.17 of


Act---Court-fees payable on a plaint in respect of a multifarious suit covered by S.17,
where the court-fee is not otherwise provided for by the Act, would chargeable under
Art.l of Sched. I of the Act irrespective of the consider at whether S.17 is applicable to
the case.

Schedules I and 11, of Court Fees Act, 1870 deal with leviability court-fees whereas the
other provisions of the Act deal with chargbeability, computation, etc. The language of
Article 1 of Schedule I clearly states 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 I, if it falls under some
other specific Article in any of the Schedules. Schedule II 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 rule whereby aggregate
amount of fee leviable on the plaint or memorandum of appeal in suit embracing separate
subjects will have to be paid, but does not itself fix the amount of the court-fee. Rather, it
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 1 If this Article is applicable, it is to be

Page No. 1 of 6
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.

Raghobir Singh v. Dharam Kuar ILR 3 All. 108; Kashi Prosad Singh v. Secretary of State
for India-in-Council ILR 29 Cal. 140; C. P. Syndicate Ltd. v. Sardar Naurangsingh AIR
1950 Nag. 189; Arbab Ghulam Ali Khan v. Arbab Muhammad Hussain PLD 1986 Pesh.
72 and Avan A. Cowasji v. Nasreen Nizam 1984 CLC 2705 ref. '

(e) Interpretation of statutes---

----Taxing statute---Such a statute must be construed in the light of what is clearly


expressed---If the Legislature wants to fix a maximum ceiling beyond which it does not
want to recover court-fee true recognition must be given to that intent.

Sh. Inayat Ali, Advocate Supreme Court and Sh. Masood Akhtar, Advocate-on-Record
for Appellant.

Nemo for Respondents.

Date of hearing: 12th February, 1991.

JUDGMENT

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:---

Page No. 2 of 6
(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

Page No. 3 of 6
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

Page No. 4 of 6
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

Page No. 5 of 6
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.

Page No. 6 of 6
1991 C L C 640

[Lahore]

Before Gul Zarin Kiani, J

MANZOOR HUSSAIN and others --- Appellants

versus

BHOLE KHAN and others --- Respondents

Regular Second Appeal No.26 of 1973, heard on 18th December, 1990.

(a) Muhammadan Law---

---- Guardians and Wards Act (VIII of 1890), S.27 --- Competence of legal guardian to
deal with immovable property of his ward --- Father being legal guardian of property of
his minor children, he is empowered to alienate immovable property belonging to them
on specified conditions --- Power to alienate was neither absolute nor without fetters ---
Islam subjects such power to stringent conditions--Legal guardian's competence to sell
immovable property of his ward detailed.

Legal guardian can sell the immovable property of his ward; (1) where he can obtain
double its value; (2) where the minor had no other property, and, the sale was necessary
for his maintenance; (3) where there were debts of the deceased, and no other means of
paying them; (4) where there were legacies to be paid, and no other means of paying
them, (5) where the expenses exceed the income of the property; (6) where the property
was falling into decay; and (7) when the property had been usurped, and the guardian had
reason to fear that there was no chance of fair restitution. Apart from the above
conditions, a legal guardian has no power to alienate immovable property of his ward. [p.
(A5] A

Waghela Rajsanji v. Shekh Masludin and others I L R XI Bom. 551; Kali Dutt Jha and
others v. Abdul Ali and another I L R 16 Cal. 627; Abdul Haq v. Muhammad Yehia Khan
and others A I R 1924 Pat. 81; Pandit Krishna Chandra Sharma v. Seth Rishabha Kumar
A I R 1939 Nag. 265; Surcsh Chandra Pradhan v. Ganesh Chandra De and others A I R
1951 Orissa 351; Ramchandra v. Manikchand and another A I R 1908 Madh. Pra. 150; Sri
Kakulam Subrahmanyam and another v. Kurra Subba Rao A I R 1948 PC 95; Abdul
Hakim v. Jan Muhammad and others A I R 1951 All. 247; Amir Ahmad and others v.
Meer Nizam Ali A I R 1952 Hyd. 120; Ganga Singh and another v. Santosh Kumar and
another A I R 1963 All. 194; Mahomedan Law by Babu Ram Verma; Principles and
Precedents of Mohammadan Law, p 64; Asaf A.A.Fyzee, in Outlines of Muhammadan
Law (Fourth Edition); Principles of Mahomedan Law by D.F. Mulla and Mahomedan
Law by Faiz Badruddin Tyabji ref.

(b) Muhammadan Law ---

---- Pre-emption --- Minor --- Right of pre-emption on behalf of minor --- Preemption
being a mode for fresh acquisition of immovable property, could not be equated with its
sale for necessity and benefit to minor--Guardians and Wards Act (VIII of 1890), S.27.

Principles of Mahomcdan Law by D.F. Mulla and Faiz Badruddin Tyabji on Mohomedan
Law, paras. 270 to 272 rel.

(c) Muhammadan Law---

---- Guardians and Wards Act (VIII of 1890), S.27 --- Immovable property owned by
minor --- Alienation by legal guardian --- Governing rule in case of alienation of
immovable property owned by minor, by his legal guardian would be the rule of absolute
necessity and benefit.

Page No. 1 of 14
(d) Muhammadan Law---

---- Guardians and Wards Act (VIII of 1800), S.27 --- Minor's capacity to contract--
-Limitations---Minor has no capacity to contract because of defect in understanding; but
if his acts had the licence and authority of his guardian, then such defect would be
removed and minor would be accounted as an adult--Where contract on behalf of minor
was approved or entered into by guardian, minor would be equally bound by that
contract.

Amir Ahmad and others v. Meer Nizam Ali A I R 1952 Hyd.120; Mohori Bibi v.
Dhurmodas Ghose 30 In. App 114 (PQ; Mir Sarwarjan v. Fakhruddin Mahomed', 39 Ind.
App. 1 (PQ; Hanuman Pcrshad's case 6 Moo Ind. App. 393 PC; Watson & Co. v. Shamial
Mitter 15 Cal 8: 14 Ind. App. 178 PC; Imambandi v. Sheikh Haji Mustasaddi A I R 1918
PC 11; Kali Dutt Jha v. Abdul Ali 16 Ind. App. 96(PC); Macnaghten's Principles of
Mohammadan Law, Chap. 9, Principle 14; Amir Ali's Mohammadan Law, Vol.11, 2nd
Edn. pp.479-480; Subramanyam v. Subba Rao P L D 1948 PC 52 Krishnachandra v.
Sait-R ushaba Kumar A I R 1939 Nag. 205; Hamilton's Hidaya; Fatawai-e-Alamgiri, Vol.
I, Edn.,p.1834 and Allfatawi-e-Kubra, Vol III , p.38 reL

(e) Civil Procedure Code (V of 1908)---

---- S. 100---Second appeal--Finding of fact recorded by Courts below was not open to
review in second appeal.

(f) Transfer of Property Act (IV of 1882)---

---- S. 53-A --- Guardians and Wards Act (VIII of 1890), S.27 --- Specific Relief Act (I of
1877), S.12---Agrcemcnt to sell concluded, by legal guardian on behalf of minors ---
Effect --- Agreement of sale concluded by legal guardian on behalf of minors was binding
on minors --- No bar for specific enforcement of such executory agreement existed under
law --- Where in case of necessity and benefit, guardian could sell minor's property
outright, there was no impediment to conclude agreement for its sale as a preparatory step
towards its finalisation--Such agreement was thus capable of being specifically enforced
through Court of law.

Imambandi v. Haji Mutassaddi A I R 1918 PC 11; Mir Sarwarjan's case 39 Ind. App. 1
PC; Subramanyam v. Subba Rao P L D 1948 PC 52; Sarwarjan v. Fakhruddin
Mohammad 39 Cal. 232 PC; Khalid Rasid and others v. Mst. Ajaib Khanum and others
1988 C L C 1755 and Siddique Khan and 2 others v. Abdul Shakur Khan and another P L
D 1984 SC 289 ref.

(g) Specific Relief Act (I or 1877)------

---- S. 12 --- Punjab Pre-emption Act (I of 1913), S.13 --- Court Fees Act (VII of 1870),
S.1.7 --- Plaint in suit embracing two distinct subjects --- Liability to pay court-fee ---
Plaintiffs were obliged to separately assess and pay court-fee on their plaint in suit which
embraced two distinct subjects --- Plaintiffs having assessed one subject in plaint paid
court-fee on relief for possession through pre-emption but paid no court-fee in respect of
their claim for specific performance of agreement to sell in their favour --- Plaint was
thus, deficiently stamped and plaiqtiff9 were bound to make good such deficiency in
court-fee.

Siddique Khan and 2 others .v. Abdul Shakur Khan and another P L D 1984 SC 289 rel.

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

---- S. 12(ii) --- Object and scope of Court Fees Act, 1870 --- Party paying deficient
court-fee --- Duty of Court --- Court Fees Act, 1870 was enacted merely to collect
revenues for the benefit of the State, object whereof was -not to arm a contesting party
with a weapon of defence to obstruct trial of an action --- Where court-fee paid on plaint
or memorandum of appeal was deficient, Court had ample powers to call upon defaulting
party to make good deficient court-fee --- Appellate Court had duty to see that proper

Page No. 2 of 14
court-fee was paid not only in regard to proceedings before it but also with regard to
proceedings in the lower Court.

(i) Specific Relief Act (I of 1877)---

---- S. 12 --- Civil Procedure Code (V of 1908), O.VII, R.11 & S.100 --- Second appeal
--- Plaintiff having included two distinct reliefs in his plaint, failed to pay court-fee in
regard to relief of specific performance of agreement of sale--Plaintiff was directed to
make good deficiency in court-fee within specified period failing which his suit would be
deemed to have been dismissed for non-payment of proper court-fee.

Nizam-ud-Din for Appellants.


Asif Saeed Khan Khosa for Respondents.

Dates of hearing: 12th and 18th December, 1990.

JUDGMENT

This second appeal by the defendants 1 and 2 in the civil suit before the trial Court raises
an interesting legal question about competence of a legal guardian to deal with the
immovable property of his ward and a less important question about the effect of
non-payment of court-fee on the alternative relief for specific performance of an
agreement to sell, and, the power of the Court to direct payment of deficit court-fee.

First, the facts which gave rise to this litigation. 39 kanals, 2 marlas of land at Mauza
Bhian-Wala, Khurd in Tehsil Feroze-Wala, was owned by Noor Muhammad, Wali
Muhamad sons, Mst. Khurshid Begum daughter, and Mst. Inayat Begum widow of
Ghulam Muhammad. By deed of sale executed on 28-2-1967, and, registered on
14-3-1967, above land was sold by them to Manzoor Hussain, and, Akhtar Hussain minor
sons of Ch. Muhammad Hussain for a consideration of Rs.7500. Rs.500 were paid
earnest. An equal amount was retained for payment to the mortgagees, and the rest of the
amount was paid at the time of registration of the sale-deed. Sale-deed is Ext.D1. As the
vendees were minors, the sale was completed in their favour by their father who paid the
consideration for it.

Bhole Khan, and, his brother Rasool Bakhsh as collaterals intended to claim pre-emption
in respect of the above sale and wanted to assert preference through Court. Upon gaining
awareness of intent to enforce pre-emptive rights by them, father of the vendees agreed to
re-convey the land to them upon payment of Rs.8,250 and upon receiving Rs.2000 as
advance payment, agreed to complete the sale within one month of the payment. of the
rest of the amount. An agreement to re-convey the land was reduced to writing on
8-3-1968. It is Ext.P2. It was signed by the father of the vendees, attested by two
witnesses, and, thumbmarked by Bhole Khan. As agreement to re-convey the land did not
materialise, Bhole Khan and Rasool Bakhsh as plaintiffs sued for possession of the land
by pre-emption, and, in the alternative for specific performance of agreement dated
8-3-1968, upon payment of the balance price. Suit was instituted on 11-5-1968. To the
suit, apart from vendees, erstwhile owners of the land were-also impleaded as defendants.
Vendees were defendants Nos.1 and 2, whereas the original owners were defendants
Nos.3 to 6 in the suit. As defendants Nos.1 and 2 suffered from minority, plaintiffs
proposed their father to act as their guardian ad litem in the suit riled by them.

Suit was resisted by defendants Nos.1 and 2 only. Written statement was filed on their
behalf by Muhammad Akrarn as their sarprast. It was averred that as petition for
appointment of guardian ad litem, and list of relations of the minor-defendants were not
filed, the plaint needed amendment; that the plaint was deficiently assessed for purposes
of court-fee and jurisdiction, and, less amount of court-fee was paid. On merits, it was
averred that the father had no right to bind the minors for the sale of their land. Prior to
settlement of issues, on the application of the plaintiffs, Muhammad Akram, a step
brother of the minors, was appointed as their guardian ad litem on 5-11-1968.

Trial proceeded on the issues settled by the trial Court on 11-2-1969.

Page No. 3 of 14
(1) Whether the suit of the plaintiffs to enforce their right of pre-emption against the
vendee-defendants is within time?

(2) What is the effect of agreement executed by Muhammad Hussain in favour of the
plaintiffs for the specific performance of the contract?

(3) Whether the plaintiffs have superior right of pre-emption?

(4) Whether the ostensible price of the suit land viz Rs.7,500 was fixed in good faith or
actually paid?

(5) If issue No.4 is not proved, what is the market value of the suit land?

(6) Relief.

At the instance of the plaintiffs, on 24-6-1969, an additional issue numbered 6-A was
added. It reads:-

"In the alternate, whether the plaintiffs are entitled to a decree for possession of the land
on the ground of the specific performance of the agreement? If so, its effect?"

Upon analysis of the evidence adduced, the trial Court dismissed the suit for pre-emption,
and, decreed specific performance of agreement to sell upon payment of Rs.8,250 vide its
judgment passed on 28-4-1972 by directing execution of the sale-deed and its registration
in accordance with agreement marked Ext.P2. The trial Court found that suit for
pre-emption was barred by limitation but gave relief of specific performance. Issues
Nos.3, 4 and 5 were left undecided by the trial Court. Against decree of the trial Court,
plaintiffs and defendants 1 and 2, filed separate appeals in the Court of learned District
Judge, Sheikhupura who by a common judgment dismissed them on 15-12-1972. Against
his judgment, defendants 1 and 2 came up in appeal through their guardian ad litem.
Appeal was admitted to hearing on 22-1-1973. As for plaintiffs in the suit, they seem to
be satisfied with the judgment, and, have not challenged it.

On behalf of the appellants, their learned counsel Sh. Nizam-ud-Din raised two
contentions. His first contention was that in absence of proper court-fee paid upon the
plaint for the relief of specific performance, the Court could not have decreed that relief
because there was no valid plaint before it. His second contention was that a legal
guardian could not have bound his minor sons for agreeing to sell their land and as the
agreement suffered from want of mutuality, it could not be specifically enforced by a
Court of equity. In this behalf, learned counsel referred to the cases in Waghela Rajsanji
v. Shekh Masluddin and others I L R 11 Bombay 551, Kali Dutt Jha and others v. Abdul
Ali and another I L R 16 Calcutta 627, Abdul Haq v. Muhammad Yehia Khan and others
A I R 1924 Pat. 81, Pandit Krishna Chandra Sharma v. Seth Rishabha Kumar AIR 1939
Nag. 265, Suresh Chandra Pradhan v. Ganesh Chandra De and others A I R 1951 Orissa
351, and, Ranichandra v. Manikchand and another A I R 1968 Madhya Pradesh 150.

Rasool Bakhsh respondent died on 28-1-985. His legal representatives were substituted
on record. Bhole Khan died on 15-8-1985. His heirs were also substituted for him on
record. They are represented by Mr. Asif Saeed Khan Khosa, Advocate who argued on
their behalf that father as natural guardian of the minors could deal with their immovable
property, if that act was for their benefit and necessity, and, as both were found to exist in
the case, the agreement to sell executed by the father was specifically enforceable. In
support of this statement, learned counsel heavily relied upon Sri Kakularn
Subrahmanyarn and Another v. Kurra Subba Rao A I R (35) 1948 Privy Council 95,
Abdul Hakim v. Jan Muhammad and others A I R (38) 1951 Allahabad 247, Amir Ahmad
and others v. Meer Nizarn Ali A I R 1952 Hyderabad 120, Ganga Singh and another v.
Santosh Kumar and another A I R 1963 Allahabad 194 and monographs from the books
on Mahomedan Law.

I shall first advert to the question about the powers of a legal guardian under Mahomedan
Law to alienate immovable property of his ward. Distinguished from a de facto guardian,
father is legal guardian of the property of his minor children and Mahomedan Law gives

Page No. 4 of 14
him power to alienate immovable property belonging to them in specified conditions.
Power to alienate is neither absolute nor without fetters. Mahomedan Law subjects this
power to stringent conditions. Books on Muslim Law lay down that a legal guardian can
sell the immovable property of his ward; (1) where he can obtain double its value; (2)
where the minor has no other property, and, the sale is necessary for his maintenance; (3)
where there are debts of the deceased, and no other means of paying them; (4) where
there are legacies to be paid, and no other means of paying them; (5) where the expenses
exceed the income of the property; (6) where the property is falling into decay; and (7)
when the property has been usurped, and the guardian has reason to fear that there is no
chance of fair restitution. Apart from the above conditions, a legal guardian has no power
to alienate immovable property of his ward. In para 90 of A Hand-Book of Mahomedan
Law by Babu Ram Verma, the author observes:------------

"A legal guardian shall be entitled to exercise the following powers:--------

(a) He may sell or mortgage immovable property of the minor in the following cases (but
not in others):-

(i) where he can obtain double the value of the property;

(ii) where it is necessary to do so for the maintenance of the minor, the minor having no
other property;

(iii) where debts are due from the deceased person from whom the minor inherits the
property and there are no means of paying them;

(iv) where there are legacies to be paid and there are no other means of paying them off;

(v) where the expenses exceed the income of the property;

(vi) where the property is falling into decay;

(vii) where the property has been usurped and the guardian has reason to fear that there is
no chance of fair restitution.

(b) he may sell or pledge the movable property of the minor where there is imperative
necessity, such as for food, clothing or nursing."

Macnaghten in Principles & Precedents of Mohammadan Law (at page 64) says:----

"14. A guardian is not at liberty to sell the immovable property of his ward, except under
seven circumstances, viz. 1st, where he can obtain double its value; 2ndly, where the
minor has no other property, and the sale of it is absolutely necessary to his maintenance;
3rdly, where the late incumbent died in debt which cannot be liquidated but by the sale of
such property; 4thly, where there are some general provisions in the will which cannot be
carried into effect without such sale; 5thly, where the produce of the property is not
sufficient to defray the expenses of keeping it; 6thly, where the property may be in danger
of being destroyed; 7thly, where it has been usurped, and the guardian has reason to fear
that there is no chance of fair restitution.

15. Every contract entered into by a near guardian on behalf and for the benefit of the
minor, and every contract entered into by a minor with the advice and consent of his near
guardian, as far as regards his personal property, is valid and binding upon him provided
there be no circumvention or fraud on the face of it."

Asaf AA. Fyzee, in Outlines of Muhammadan Law (Fourth Edition) dealing with the
powers of the legal guardian to sell immovable property of the minor says:----

"In Sunnite law, the father is the guardian of the minor's property; failing him, in order of
priority, the following are entitled:

Page No. 5 of 14
(i) the father's executor (ii) the father's father; (iii) the paternal-grandfather's executor.
These are the legal guardians of the property of the minor. It must be emphasised that the
substantive law of Islam does not recognize any other relatives, such as the mother, the
uncle or brother, as legal guardians, but they may be appointed by the Court."

As far the power of the legal guardian to alienate the immovable property of his ward, it
is stated that:---

"The legal guardian cannot sell the immovable property of the minor except where he can
obtain double its value; or where it is necessary for the maintenance of the minor; or
where there are debts and legacies to be paid, and there are no other means; or where the
property is falling into decay."

The question with regard to powers of guardian appointed by the Court is somewhat
different. There the guardian derives his authority from the order of the Court appointing
him.

Syed Ameer Ali after enumerating restrictions put on the sale of immovable property of
the minor by his guardian said:-----

(c) He may also sell it when there are some general provisions in the wasiyet (will) of the
testator, which cannot be carried into effect without the sale of the property.

(d) When the property is required to be sold for the purpose of paying off the debts of the
testator, which cannot be liquidated in any other way.

(e) When the income accruing from the estate is not sufficient to defray the expenditure
incurred in its management and the payment of the kharaj (land-revenue).

(f) When it is in imminent danger of being destroyed or lost by decay.

(g) When the minor has no other property, and .the sale of it is absolutely necessary for
his maintenance.

(h) When it is in the hands of a usurper, and the guardian has reason to fear there is no
chance of restitution.

In other words, even a guardian de jure, like the father or his executor, cannot sell the
immovable property of the minor without absolute necessity or unless it is to the manifest
or evident advantage of the minor (emphasis supplied by me)."

Para 362 of Principles of Mahomedan law by D.F. Mulla laid down a similar principle. In
paragraphs 270 to 272 of Mahomedan Law by Faiz Badruddin Tyabji, the question was
dealt with in similar terms. Paragraph 2"70 reads:-----

A guardian of the property of a ward is bound to deal with it as carefully as a man of


ordinary prudence would deal with it, if it were his own and, subject to the provisions of
Chapter III of the Guardians and Wards Act, he may do all acts which are reasonable and
proper for the realization, protection or benefit of the property."

Para 271 states:---

"The guardian of the property of a minor may either exercise or refuse to exercise
the-right of pre-emption on behalf of the ward."

There is no dispute that pre-emption is a mode for fresh acquisition of immovable


property and could not be equated with its sale for necessity of and benefit to the minor.
Paragraph 272 is more near the point. It states:-

(1) A guardian cannot validly contract in the name of a ward, so as to impose on him a
personal liability.

Page No. 6 of 14
(2) It is not within the competence of manager of a minor's estate, or of a guardian of a
minor to bind the minor, or the minor's estate, by a contract for the purchase of
immovable property.

(3) A guardian's powers with respect to the immovable property of his ward, are restricted
so that he cannot alienate it unless there is absolute necessity for the alienation, or it is
greatly for the benefit of the war (emphasis has been supplied by me)."

More important question would be whether the listed conditions permitting the sale of
immovable property of the ward by his legal guardian are exhaustive of all the situations
or are illustrative of a principle of law governing rule of necessity and benefit to the
ward. For example, the first instance which gave sanction for the sale of immovable
property of the minor for double' its value is clearly illustrative of a monetary benefit.
Similarly, other conditions which gave power for sale of the immovable property of the
minor by his legal guardian are a pointer in the direction of necessity and benefit.
Therefore, the underlying governing rule in case of alienation of immovable property
owned by the minor by his legal guardian would be the rule of absolute necessity and
benefit. An example which readily came to my mind and which supports the above
conclusion was the ailment of the minor and his treatment requiring an expenditure which
could be met out of the sale of his immovable property only. Placed in such a dilemma,
should the ward be allowed to deteriorate and languish to death at the cost of conserving
his property or could the legal guardian ' lay his hands on his property for saving his life.
Neither money nor property are an end in themselves. Their purpose is to promote human
weal and that is and should be their proper role in human society. In case of absolute
necessity of or clear benefit to the minor, a legal guardian can alienate immovable
property belonging to him. In my opinion, the enumerated instances are illustrative of a
basic rule of absolute necessity of and benefit to the minor. It appealed to reason also and
I would, therefore, humbly accept it as a correct rule of Islamic Law to govern the power
of a legal guardian to alienate immovable property owned by his ward. Thus far, I dealt
with the point without the aid from the case-law in pre-partition and post-partition era.
There are a large number of decided cases which dealt with the question relating to power
of a guardian to alienate the immovable property of the ward both under Muslim and
Hindu law. Those cases relate to the power of a guardian to purchase immovable property
for the minor as also its sale and also the question about specific performance of
agreement to purchase or sell the immovable property in the name of the minor. All these
cases have been admirably noticed in a Full Bench judgment from Hyderabad High Court
in Amir Ahmad and others v. Meer Nizam Ali A I R 1952 Hyderabad 120. 'Leading
judgment in the Full Bench case was given by M.S.Ali Khan, J. In para 3 of the
judgment, the learned Judge observes:----

"There remains, however, 'a separate and distinct' question whether and how far a minor
can make a contract through his guardian. Cases have taken the distinction between the
various grades of the guardians. The only guardians, who can within certain limits, make
disposition of minor's immovable property are recognized to be the father, his executor,
grandfather, his executor or guardian appointed by the Court. Every other guardian like
the mother, the uncle, elder brother, etc. are termed de facto guardians and are deemed to
be usually without authority to dispose of or bind the minor for the purchase of
immovable property. Question remains how far the dispositions by a father and the other
de jure guardians are binding on the minor. As explained in 'Imambandi v. Haji
Mutasaddi', A I R 1918 P C 11, de jure guardian has power to dispose of minor's
immovable property, though this power is subject to stringent conditions, all governed by
the basic and fundamental principle that the acts of the guardian should be to the
advantage and benefit of the minor and his estate. For fulfilling the actual wants of the
minor and for his bringing up and maintenance as well as for the preservation of his
property these guardians are empowered to dispose of certain immovable property of the
minor. Otherwise, even dispositions by them are not considered valid. Taking the reverse
side of the case, namely, acquisition of a property for the minor if the contract for the
same is for the benefit of the minor and it is actually completed so as to transfer the
ownership of the property to the minor, the transaction has been held to be valid."

Down below in para 9, the learned Judge stated:---

Page No. 7 of 14
"Lastly, 'I may refer to the case of 'Shri Kakulam Subramaniam v. Kurra Subba Rao', P L
D 1948 PC 52. There the mother of a minor son has contracted as guardian to sell a land
for paying off the debt of the father of the son and had given possession of it to the
pr6misee. The suit for specific performance by the promisee was dismissed but on appeal
to their Lordships of the Privy Council it was held that:

"Their Lordships entertained no doubt that it was within the powers of the mother as
guardian to enter the contract of sale on behalf of the respondent for the purpose of
discharging his father's debts, and that, if the sale had been completed by the execution
and registration of the sale-deed, the respondent would have been bound under Hindu
Law."

They observed further that:

"The position of the minor under such a contract is discussed in the following passage
with which their Lordships agree, in Pollock and Mulla's Indian Contract and Specific
Relief Act, 7th Edn., p.70:

"A minor's agreement being now decided to be void (by 'Mohori Bibi v. Dhurmodas
Ghose', 30 Ind App 114 (PC), it is clear that there is no agreement to be specifically
enforced; and it is unnecessary to refer to former decisions and distinctions, following
English authorities which were applicable only on the view now overruled by the Privy
Council. 'It is, however, different with regard to contracts entered on behalf of a minor by
his guardian or by a manager of his estate'. In such a case it has been held by the High
Courts of India, in cases which arose subsequent to the governing decision of the Privy
Council, 'that the contract can be specifically enforced by or against the minor, if the
contract is one which it is within the competence of the guardian to enter into on his
behalf so as to bind him by it and, further, if it is for the benefit of the minor'. But if either
of these two conditions is wanting, the contract cannot be specifically enforced at all."

This, in my opinion, is an important and recent pronouncement of the Privy Council and
if the portions underlined (here in single inverted commas) were carefully considered, it
would be evident that their Lordships of the Privy Council held with regard to contracts
entered on behalf of minors by their guardian that they can be specifically enforced by or
against the minor if the guardian Js competent to make a contract binding on the minor
and the contract is for the benefit of the minor.

(6) It will be seen that the case of 'Mir Sarwarjan v. Fakhruddin Mahomed', 39 Ind App I
(PC), is based on two grounds, namely, that no contract by a guardian of a minor can be
specifically enforced, as in the first place, it lacks mutuality, and, in the second place, a
guardian or manager cannot bind a minor by personal covenants. The above review of the
cases will show that a contract for the sale or purchase of immovable property is regarded
as a personal covenant for the reason that having regard to S.54 of the T.P. Act a mere
contract does not pass any into rest in or create any charge on land; that until it is
executed and registered the title to the land does not pass from a vendor to the vendee,
and the contract remains a personal covenant. In spite of this, it has been held in the cases
cited above that if the contract for sale is entered into by a certificated guardian under the
Guardians and Wards Act or the Court of Wards Act it will be specifically enforced.
Similarly, a reference to, the summary of Mr. Justice Seshagiri Iyer's judgment given
towards the end of para 5 above will show that a personal covenant of a guardian to
create a charge over the property in his management binds the minor; that if the guardian
acts for the benefit of the minor and borrows, the creditor can sue the minor upon the
decree obtained against the guardian on the principle of subrogation; that personal
covenants of the guardian for necessaries bind the minor or his estate and that a personal
covenant acknowledging a debt binds the minor by keeping alive a pre-existing debt; all
these cases in which personal covenants of guardians bind the minors are so
well-established that they are termed as accepted propositions by Mr. justice Seshagiri
Iyer.

Moreover, their Lordships of the Privy Council in the well-known case of 'Hanuman
Pershad', (6 Moo Ind App 393 PC) have themselves spoken of a guardian borrowing on
behalf of a minor and charging his estate in the same sentence; this means that they

Page No. 8 of 14
consider that for necessaries a contract or covenant of loan of a guardian binds the minor;
similarly in 'Watson and Co. v. Shamlal Mitter' (15 Cal 8: 14 Ind App 178 PC) an
agreement by the guardian to pay enhanced rent, which again is a personal covenant has
been held to be binding on the minor by their Lordships of the Privy Council. Again in
'Imambandi v. Sheik Haji Mustasaddi' (A I R 1918 PC 11 at p. 16 Col 1), their Lordships
of the Privy Council have held clearly that a Mohammadan guardian can bind a minor's
estate by a personal covenant' entered into for the latter's benefit. Similarly, in 'Kali Dutt
Jha v. Abdul Ali', 16 Ind App 96 (PC) their Lordships of the Privy Council have upheld a
sale by the father for the purpose of putting an end to the pending litigation. All these
various instances will show that even a personal covenant whether it be of borrowing
money or selling immovable property by a guardian binds the minor, if it is for the
obvious benefit of the minor or for legal necessity. In fact, works of Moslem Law will
show that a guardian can sell the immovable property of his ward in the following among
other cases:

(i) Where he can obtain double its value;

(ii) Where the minor has no other property and the sale of it is absolutely necessary for
the maintenance;

(iii) Where the late incumbent died in debt which cannot be liquidated but by the sale of
such property;

(iv) Where there are some general provisions in the will which cannot be carried into
effect without such sale;

(v) Where the produce of the property is not sufficient to defray the expenses of keeping
it;

(vi) Where the property may be in danger of being destroyed; and

(vii) Where it has been usurped and the guardian has reason to fear that there is no chance
of fair restitution. (Vide Macnaghten's Principles of Mohammadan Law, Ch.9, Principle
14; Amir Ali's Mohammadan Law, vol. II, 2nd Edn., pp. 479-480).

After all this, it is difficult to maintain that in no case personal covenants of guardians do
not bind the minors. It appears to me that all such personal covenants of guardians will
bind the minors as are for their obvious benefit or are impelled by necessity. I am fully
aware of the fact that in 'Mir Sarwarjan' their Lordships of the Privy Council spoke of the
incompetence of the guardian to bind the minor by a contract of purchase of immovable
property and the cases just cited are cases other than cases of such personal covenants;
they are cases of covenants of sale of immovable property or of creating a charge on
immovable property or of contracts of purchase of movables for necessaries. But if, in
spite of this, I mentioned these cases, it was because their Lordships of the Privy Council
themselves in 'Subramanyam v. Subba Rao', P L D 1948 PC 52 laid down the proposition
broadly and in more general terms without reference to a personal covenant for purchase
of immovable property they observed or rather approved of the observations that a
contract can be specifically enforced by or against the minor if it is one which is within
the competence of the guardian to enter into on his behalf so as to bind him by it and
further if it is for the benefit of the minor; and not only in Mr. Justice Niyogi's judgment
in Wrishnachandra v. Sait Rushaba Kumar', AIR 1939 Nag 265 but in most of the cases
cited in para 5 above no distinction is made between 9 contract for sale and, a contract for
purchase entered into on behalf of minor, as a reference to these cases will show. The
cases cited in this paragraph will thus show that personal covenants of a guardian for the
various purposes explained there including the sale of immovable property undoubtedly
bind the minor."

At bottom (column 2 of page 127), the learned Judge proceeded to say:----

"As observed by Mr. Seshagiri lyer, J., the remarks of Woodroffe, J. in 'Mir Sarwarjan's
case', when it was heard by the Calcutta High Court, that their Lordships of the Privy
Council did not intend in 'Waghela Rajsanji's case', to lay down that contracts by a

Page No. 9 of 14
manager or guardian of a Hindu family do not bind the minor but that it was only
intended to lay down that onerous covenants cannot be enforced by the guardian upon the
person or property of the minor were not taken exception to either in argument before
their Lordships or in the judgment. Hence, can we draw the inference that a guardian is
competent to do all acts which are of advantage and benefit to the minor? In my opinion,
such an inference can and should be drawn; for the only standard by which the
competency of the acts of the guardian can be judged is the standard of the interest of the
minor. However, even assuming that such an inference cannot be drawn and guardian is
competent to do only such acts as are sanctioned also by the personal law of the minor,
the question then comes to an examination of the competency of the guardian under
Muslim Law. I will, therefore, consider what contracts are considered by Moslem Law to
be within the competence of a guardian of a Muslim minor to enter into on behalf of the
minor so as to bind him by them. In principle 6 in Macnaghten's Principles and
Precedents of Mohammadan Law it is laid down about the de jure guardian that:

"They answer to the term of Curator in the Civil Law having power over the property of
the minor for purposes beneficial to him."

and in principle 15 it is said that:---

"Every contract entered into by near (De Jure) guardian on behalf of and for the benefit
of the minor with the advice and consent of his near guardian as far as regards his
personal property is valid and binding upon him provided there be no circumvention of
fraud on the face of it."

Similarly in the same book in Chapter 7 on Precedents of Guardian and Minority in case
(3) it is stated that:

"The principle of the law is, that it is allowable for a guardian, executor, or any one who
has the case (care) of the person and property of the minor to enter into a contract on his
behalf where the profit must be clear and certain. For instance, they may always accept a
gift on his behalf. In the case of a contract where there is a possibility of loss, it has been
held that a near guardian (by which is meant a father or grandfather or guardians
duly-appointed by them) is at liberty to enter into such contract on behalf of the minor.
Where, however, nothing but loss can accrue to the minor such as in the case of making a
donation or granting a loan, it is not legal for any guardian, near or remote, or for any
executor or other person under whose care he is, to act on his behalf."

And turning now to the English rendering of Hidaya of Hamilton bk. 35 p. 534 1 will
quote a passage which will throw much light upon the competence of the guardian of the
minor as also upon the capacity of a minor to contract:

"The acts of an infant are unlawful because of the defect in his understanding; but the
licence or authority of his guardian is mark of his capacity whence it is that in virtue
thereof an infant is accounted the same as an adult."

A careful consideration of this passage will show that a Moslem minor has no capacity to
contract because of defect in understanding; but that if his acts have the licence and
authority of his guardian, then the defect is removed and the minor is accounted the same
as an adult. Evidently this means that if a contract on behalf of a minor is approved or
entered into by the guardian the minor is equally bound by that contract. In the same
work and on the same page in Hamilton's Hidaya it is also laid down that the acts spoken
of in the above passage include:

“all transactions of any kind such as sale, 'purchase' and so forth."

The inclusion of 'purchase' in the acts mentioned in the passage is significant and speaks
for itself. Similarly, in Fatwai-e-Alamgiri Vol.1, Edn. 1834 page 82 it is stated that:

"That is "the acts of an infant are not valid except when they are done under the licence
or authority of his guardian; that Tahtavi has explained this to state that the father,
grandfather, their executors, Qazi or hi executor can lawfully allow an infant to trade;

Page No. 10 of 14
when an infant who understands sale and purchase, that is, understands that a sale divests
the ownership and a purchase vests it and understands also the difference between a small
and a substantial loss sells or purchases, his guardian if he considers the sale or the
purchase advisable, can assent to it; and when an infant receives such an assent or
authority for a transaction and makes it, the transaction is enforced whether it occasions
loss or not. The Sirajiah is to the same effect. In transactions which are purely
advantageous, an infant is accounted the same as an adult; and that is why an infant can
himself accept a gift and need not wait for the authority of the guardian."

Again in Allfatawi-e-Kubra, Vol. III p. 38 by Than Hajar Al Miski in a case where:

"A minor was in one town and his property in another town it was held by the Moslem
servants that the Qazi of the place where the property was, can purchase lands for the
benefit of the minor."

Again on page 48 it is laid down that:

"if owing to disturbed conditions no Government has authority over a town, the people of
the town should elect a Qazi and the Gazi should appoint a guardian for orphans, that is,
for fatherless minors and he can enter into a contract on behalf of a minor for the
exchange of one garden for another garden if the transaction is for the benefit of the
minor."

It will be seen that in these passages minor's transaction of sale as well as of purchase of
movables as well as immovables are allowed when they are entered into with the assent
and authority of the near or De Jure guardians. This means sufficiently clearly that a
Muslim guardian can bind by personal covenants a Muslim minor even when the
covenant is for the purchase of immovable property. Of course, as laid down elsewhere in
Hidaya and Fatawai-e-Alamgiri and quoted by Justice Amir Ali in Imambandi v. Haji
Mutasaddi', A I R 1918 PC 11 at p. 16, Col.1, contracts by a De Jure guardian are
governed by strict conditions of minor's necessity and benefit. So much, with all respect,
as to the first ground of decision in the 'Mir Sarwarjan's case', namely, that a guardian is
not competent to bind the minor by a personal covenant for the purchase of immovable
property."

Down below in para 11 of the judgment, the learned Judge proceeds to observe:

"The 'Subramanyam's case', A I R 1448 PC 95 as well as almost all the cases in which
specific performance has been decreed, are cases of sale of minor's property by the
guardian; the question is, whether in view of the fact that 'Mir Sarwarjan's case', 39 Ind
App I PC was a case of purchase of immovable property by the guardian, there should be
any difference between the two categories of cases, I am of opinion that there should not
be any difference; for, as pointed out by the learned Judge, Mr. Viswanatha Sastri, in the
arguments before the Board in 'Subramanyam's case', reference had been made to the
Indian decisions where specific performance had been refused of guardian's contract on
the ground of want of mutuality in suits by or against the minor; yet, their Lordships
upheld the contention that a guardian's contract was specifically enforceable if the
contract was beneficial to the minor. Mr. Justice Viswanatha Sastri, though he utterly
dislikes 'Mir Sarwarjan's Case', yet has remarked that as the 'Subramanyam's case', as
well as the case before him, were cases of sale of immovable property of minor by a
guardian and, as 'Mir Sarwarjan's case', was a case of purchase of immovable property,
the doctrine 'of the latter case 'need not' be extended to the former class of cases. I
understand that this remark of his Lordship was due to the fact that as the case before him
was not that of purchase of immovable property it would be mere 'Obiter Dicta', if he
extended the principle to a case of purchase as well, otherwise, when he has taken the
distinction between contracts by a minor and contracts by a guardian and when he has
expressed his strong disapproval of the doctrine of mutuality as understood in many an
Indian decision, it cannot be said that he was not prepared to extend the principle to the
case of purchase of immovable property by a guardian. However this may be, the point
that I want to make is that in the 'Subramanyam's case', their Lordships of the Privy
Council have approved the passage of Pollock and Mulla quoted in para. 5 (9) of this

Page No. 11 of 14
judgment, in which the law has been laid down in broad terms without any limitation to
contracts of sale."

In para 12, the learned Judge said:----

"The position then comes to this. A Muslim 'De, Jure' guardian, according to my reading
of the Muslim Law, is empowered not only to dispose of minor's property in case of
necessity and to advance the interest of the minor, but is competent also to acquire
property on his behalf if it is to the obvious advantage of the minor (vide the references to
original texts in paragraph 6 above). Hence, in my opinion, there seems to be no bar in
Muslim Law to uphold contracts for purchase of immovable property made by the
guardian on behalf of a minor if they are to the obvious advantage of the minor. As a
Muslim guardian is thus competent to contract on behalf of the minor, it is evident that, if
in any given case both the conditions of competence of the guardian and the benefit of the
minor stated in the passage from Pollock and Mulla quoted by their Lordships of the
Privy Council with approval are fulfilled, then there is no bar to decreeing specific
performance of a contract for the purchase of an immovable property by a Muslim
guardian. It appears to me also that the first and foremost principle of guardianship is that
the interest of the minor is paramount and should be attended to and it is hard to hold that
if a contract for the purchase of immovable property is for the benefit of the minor, the
minor cannot take advantage of the contract entered into on his behalf by his guardian. I
have shown above also that in America the objection of mutuality does not apply to the
contracts entered into by the guardians but is confined only to the contracts entered into
by the minor himself. All these considerations impel me to hold that in a contract for sale
or purchase of immovable property entered into by a 'De Jure' guardian of a minor should
be specifically enforced if they fulfil the two tests of the competency of the guardian and
the benefit of the minor. It should be noted also that, as held in America, in a suit for
specific performance by or against a minor on a contract of a guardian of a minor, the
minor's interest is safeguarded, for the Court can always refuse specific performance if
the contract is not fair to him. But I must also state that whatever the state of law might
appear to be from a study of original Arabic bo9ks fm Fiqh, still there is the very clear
pronouncement of their Lordships of the Privy Council in 'Mir Sarwarjan's case', 39 Ind
App 1 PC, that it is not within the competence of a guardian of a Muslim minor to bind
him by a personal covenant of the purchase of immovable property. As to this I am of
opinion that we will have to read the case along with the 'Subramanyam's case', P L D
1948 PC 52, also decided by their Lordships of the Privy Council; and as in that case
their Lordships have stated the law on this question in broad terms and have upheld the
contract in respect of immovable property entered into by a guardian on its fulfilling the
two tests of competency of the guardian and the benefit of the minor, we should also
follow these tests only."

Having observed thus the reference "Whether a minor who has agreed to purchase
property through his guardian can bring a suit for the specific performance of the
contract?" was answered 'Yes' if the guardian is a de jure guardian and competent to bind
the minor by his contract and the contract is for the obvious benefit of the minor. Siddiqi,
J., was in full agreement with judgment of M.S. Ali Khan, J., but Deshapande, J., gave
qualified concurrence by observing:----

"I fully agree with the opinion of my learned brother Dr. Siadatali Khan, J., that in view
of the judgment of their Lordships of the Privy Council in 'Subramanyan v. Subba Rao', P
L D 1948 PC 52 and to all other cases referred to by him in his judgment, the suit for the
specific performance can be instituted in case the contract is for the sale of the property
of the minor by a guardian, if it is within the competence of the manager of a minor's
estate or within the competence of the guardian of minor to bind the minor or a minor's
estate by the contract. But so far as the purchase of the immovable property is concerned
the same rule cannot apply as it cannot be held that it is within the competence of the
manager of the minor's estate or within the competence of guardian of a minor to bind a
minor or minor's estate by a contract. Therefore, in my opinion, so far as the question of
purchase is concerned, which is the specific question referred to us, the law as laid down
by their Lordships of the Privy Council in 'Sarwarjan v. Fakhruddin Mohammad', 39 Cal
232 PC stands and there cannot be a suit for specific performance of the contract when
the contract is for the purchase of immovable property by a guardian of a minor."

Page No. 12 of 14
I have extensively quoted from the judgment of the Full Bench merely to show as to what
should be the correct rule or principle to govern the power of a legal guardian under
Muslim Law in case of the alienation of the immovable property of his ward. In my
opinion, the case lays down a correct statement of law and it is my view also. However,
as the c4se before me related to a contract for sale of immovable property, I shall confine
the rule in regard to only the sale of the minor's property by his legal guardian and as for
the power of guardian to purchase the immovable property for the minor. I shall not
express any final opinion by leaving it for further examination on another appropriate
occasion. As far the decision from our own Court in Khalid Rashid and others v. Mst.
Ajaib Khanurn and others 1988 C L C 1755, it is not of much assistance on the
exhaustiveness of the conditions permitting the sale of minor's property by his legal
guardian. With respects, without much discussion, circumstances listed in paragraph 362
of Mahomedan Law by D.F. Mulla were taken as exhaustive of the powers of a legal
guardian to alienate the immovable property of his minor son. In my opinion, it is not a
binding authority on the powers of a legal guardian to alienate the minor's property in
those conditions only. The true and correct rule as would be seen from the preceding
discussion is the rule of absolute necessity of and the benefit to the minor apart from the
rule of competence of the guardian.

After having stated the rule, I shall revert to the facts to rind out whether the act of the
guardian in concluding an agreement for transfer of the land at enhanced sale price
qualified the tests of competence, necessity and benefit. Sale in favour of the minors was
pre-emptible. Pedigree-table Ext.P3 indicated that plaintiffs were brothers of Ghulam
Mohammad. Except for the land sold by Inayat Begum, their right of pre-emption was
superior qua the vendees. Plaintiffs said that they intended to pre-empt the sale and also
gave evidence in support of it. To save the vendees from unnecessary expense and
hazards of Court litigation, their father who was also their natural guardian agreed to
re-convey the land at the enhanced sale price and received Rs.2000 as earnest. Sale-decd
in favour of the vendees was registered on 14-3-1967. From the date of registration of the
sale-deed, pre-emption suit could have been instituted till 13-3-1968. However, a few
days earlier, the father entered into an agreement to transfer the land to the plaintiffs and
agreed to finalise the sale within a month. After going through the record, I am
sufficiently convinced that Courts below rightly observed on the genuine execution of
agreement Ext.P2. This being a finding of fact is not open to review in second appeal.
Even otherwise, Ch. Mohammad Hussain who in the opinion of the appellants' learned
Advocate was a prominent person, did not step in the witness-box to deny his act and felt
satisfied in leaving the defence of the suit to his other son Mohammad Akram who was a
stepbrother of defendants 1 and 2. DW-2 vainly feigned ignorance about signatures of his
father on Ext.P2. His statement was untrue and unconvincing. Record disclosed no defect
in person of Ch. Mohammad Hussain. He purchased the land in dispute for his sons in
1967, for sale price of Rs.7,500. Those days, it was not a small amount. He himself paid
the sale price. Clearly, his intention was to benefit his sons. However, when he
apprehended pre-emption from the plaintiffs, he concluded an agreement with them to
transfer the land to them at the enhanced price leaving some margin of profit in that deal
also. His act was not detrimental to his minor sons. Rather, in the circumstances, it was
beneficial to them. He intended to save the property but finding that course difficult
agreed to re-transfer it at better price. Agreement concluded by him was thus clearly
binding on the minors. There was no bar for specific enforcement of this executory
agreement. If in case of necessity and benefit the guardian could sell the property
outright, there was no impediment to conclude an agreement for its sale as a preparatory
step towards its finalisation. Therefore, the agreement was capable of being specifically
enforced through a Court of law.

Finally, comes the question about non-payment of court-fee on the relief for specific
performance. Plaint in the suit contained two reliefs. First relief was with regard to
pre-emption of the sale and the second which was expressed in the alternative was for
specific performance of an agreement to sell concluded on 83-1968. For purposes of
court-fee, plaint was assessed at fifteen times of the net-profits accruing from the land in
dispute in the year preceding the institution of the suit. Annual net-profits were assessed
at Rs.300 and eventually court-fee of Rs.242.25 was paid upon the plaint. Initially, the
defendants had objected to the valuation of the suit and contended that it was incorrectly

Page No. 13 of 14
assessed and less amount of court-fee was paid on the plaint. It is seen from an order of
the trial Court passed on 25-3-1970 that deficit court-fee calculated on fifteen times of the
net-profits was paid in pursuance of a direction from the Court. It is common ground that
relief for specific performance was neither separately assessed for purposes of court-fee
on it nor any court-fee was paid on that part of the relief in the trial Court. As said above,
the trial Court had decreed alternative relief for specific performance but declined relief
in regard to pre-emption. Both parties filed separate appeals in the Court below. Plaintiffs
were aggrieved of that part of the decree which refused their claim of pre-emption and
the defendants about the decree for specific performance granted to the plaintiffs. On the
memorandum of appeal, defendants had affixed court-fee stamps of Rs.243 and the
plaintiffs on their appeal Rs.242.25. In terms of section 17 of the Court Fees Act, 1870,
the plaintiffs were obliged to separately assess, and, pay court-fee on their plaint in the
suit which embraced two distinct subjects. They had assessed one subject in the plaint
and paid court-fee on the relief for possession through pre-emption but had paid no
court-fee in respect of their claim for specific performance of an agreement to sell in their
favour. To this extent, their plaint was deficiently stamped and the plaintiffs were bound
to make good the deficiency in court-fee. Rule laid down in Siddique Khan and 2 others
v. Abdul Shakur Khan and another P L D 1984 S.C 289 impels for a reasonable
opportunity allowable to the respondents for paying the discovered deficit court-fee
before invocation of a punitive action. Even otherwise, court-fee is primarily a question
between the suitor (plaintiff) and the State. The Court Fees Act was enacted merely to
collect revenues for the benefit of the State and it is not intended to arm a contesting
party with the weapon of defence to obstruct the trial of an action. As far the appeal riled
by the defendants in the lower Court against decree for specific performance passed
against them, the memorandum of appeal was also deficiently stamped. Subject-matter in
dispute in appeal filed by them was the decree for specific performance in respect of an
agreement of sale for a sum of Rs.8,250. The appellants (defendants) were obliged to pay
ad valorem Court-fee according to the amount of consideration viz. the price payable for
the land agreed to be sold. Thus seen, proper court-fee was not paid upon the
memorandum of appeal. They had paid court-fee of Rs.243 whereas the correct amount
of court-fee payable by them on the memorandum of appeal was Rs.516.37. Therefore,
the court-fee paid was less by Rs.273.37. This amount of court-fee they are bound to pay.
The appellate Court has ample power under section 12 (ii) of the Court Fees Act, 1870 to
call upon a party to make good the deficient court-fee chargeable in the lower Court for it
is its duty to see that proper court-fees are paid not only in regard to proceedings before it
but also with regard to the proceedings in the lower Court.

In view of the aforesaid, appeal fails and is, accordingly, dismissed with no order as to its
costs in this Court. Respondents (legal representatives of Bhole Khan and Rasool
Bakhsh) are called upon to pay ad valorem court-fee on the sum of Rs.8,250 in the trial
Court by or before 18-2-1991 failing which their plaint in regard to specific performance
shall be deemed to have been rejected under Order VII, rule 11 Civil P.C. As for
appellants, they shall make good the deficit court-fee on Rs.8,250 (less the amount of
court-fee already paid on the memorandum of appeal) in the lower appellate Court by or
before the above date failing which their appeal shall also be deemed to have been
dismissed for nonpayment of proper court-fee.

At the end, I must express appreciation for the valuable assistance rendered by the
learned counsel for the parties in the case.

AA./M-2590/L Appeal dismissed

Page No. 14 of 14
1991 C L C 640

[Lahore]

Before Gul Zarin Kiani, J

MANZOOR HUSSAIN and others --- Appellants

versus

BHOLE KHAN and others --- Respondents

Regular Second Appeal No.26 of 1973, heard on 18th December, 1990.

(a) Muhammadan Law---

---- Guardians and Wards Act (VIII of 1890), S.27 --- Competence of legal guardian to
deal with immovable property of his ward --- Father being legal guardian of property of
his minor children, he is empowered to alienate immovable property belonging to them
on specified conditions --- Power to alienate was neither absolute nor without fetters ---
Islam subjects such power to stringent conditions--Legal guardian's competence to sell
immovable property of his ward detailed.

Legal guardian can sell the immovable property of his ward; (1) where he can obtain
double its value; (2) where the minor had no other property, and, the sale was necessary
for his maintenance; (3) where there were debts of the deceased, and no other means of
paying them; (4) where there were legacies to be paid, and no other means of paying
them, (5) where the expenses exceed the income of the property; (6) where the property
was falling into decay; and (7) when the property had been usurped, and the guardian had
reason to fear that there was no chance of fair restitution. Apart from the above
conditions, a legal guardian has no power to alienate immovable property of his ward. [p.
(A5] A

Waghela Rajsanji v. Shekh Masludin and others I L R XI Bom. 551; Kali Dutt Jha and
others v. Abdul Ali and another I L R 16 Cal. 627; Abdul Haq v. Muhammad Yehia Khan
and others A I R 1924 Pat. 81; Pandit Krishna Chandra Sharma v. Seth Rishabha Kumar
A I R 1939 Nag. 265; Surcsh Chandra Pradhan v. Ganesh Chandra De and others A I R
1951 Orissa 351; Ramchandra v. Manikchand and another A I R 1908 Madh. Pra. 150; Sri
Kakulam Subrahmanyam and another v. Kurra Subba Rao A I R 1948 PC 95; Abdul
Hakim v. Jan Muhammad and others A I R 1951 All. 247; Amir Ahmad and others v.
Meer Nizam Ali A I R 1952 Hyd. 120; Ganga Singh and another v. Santosh Kumar and
another A I R 1963 All. 194; Mahomedan Law by Babu Ram Verma; Principles and
Precedents of Mohammadan Law, p 64; Asaf A.A.Fyzee, in Outlines of Muhammadan
Law (Fourth Edition); Principles of Mahomedan Law by D.F. Mulla and Mahomedan
Law by Faiz Badruddin Tyabji ref.

(b) Muhammadan Law ---

---- Pre-emption --- Minor --- Right of pre-emption on behalf of minor --- Preemption
being a mode for fresh acquisition of immovable property, could not be equated with its
sale for necessity and benefit to minor--Guardians and Wards Act (VIII of 1890), S.27.

Principles of Mahomcdan Law by D.F. Mulla and Faiz Badruddin Tyabji on Mohomedan
Law, paras. 270 to 272 rel.

(c) Muhammadan Law---

---- Guardians and Wards Act (VIII of 1890), S.27 --- Immovable property owned by
minor --- Alienation by legal guardian --- Governing rule in case of alienation of
immovable property owned by minor, by his legal guardian would be the rule of absolute
necessity and benefit.

Page No. 1 of 14
(d) Muhammadan Law---

---- Guardians and Wards Act (VIII of 1800), S.27 --- Minor's capacity to contract--
-Limitations---Minor has no capacity to contract because of defect in understanding; but
if his acts had the licence and authority of his guardian, then such defect would be
removed and minor would be accounted as an adult--Where contract on behalf of minor
was approved or entered into by guardian, minor would be equally bound by that
contract.

Amir Ahmad and others v. Meer Nizam Ali A I R 1952 Hyd.120; Mohori Bibi v.
Dhurmodas Ghose 30 In. App 114 (PQ; Mir Sarwarjan v. Fakhruddin Mahomed', 39 Ind.
App. 1 (PQ; Hanuman Pcrshad's case 6 Moo Ind. App. 393 PC; Watson & Co. v. Shamial
Mitter 15 Cal 8: 14 Ind. App. 178 PC; Imambandi v. Sheikh Haji Mustasaddi A I R 1918
PC 11; Kali Dutt Jha v. Abdul Ali 16 Ind. App. 96(PC); Macnaghten's Principles of
Mohammadan Law, Chap. 9, Principle 14; Amir Ali's Mohammadan Law, Vol.11, 2nd
Edn. pp.479-480; Subramanyam v. Subba Rao P L D 1948 PC 52 Krishnachandra v.
Sait-R ushaba Kumar A I R 1939 Nag. 205; Hamilton's Hidaya; Fatawai-e-Alamgiri, Vol.
I, Edn.,p.1834 and Allfatawi-e-Kubra, Vol III , p.38 reL

(e) Civil Procedure Code (V of 1908)---

---- S. 100---Second appeal--Finding of fact recorded by Courts below was not open to
review in second appeal.

(f) Transfer of Property Act (IV of 1882)---

---- S. 53-A --- Guardians and Wards Act (VIII of 1890), S.27 --- Specific Relief Act (I of
1877), S.12---Agrcemcnt to sell concluded, by legal guardian on behalf of minors ---
Effect --- Agreement of sale concluded by legal guardian on behalf of minors was binding
on minors --- No bar for specific enforcement of such executory agreement existed under
law --- Where in case of necessity and benefit, guardian could sell minor's property
outright, there was no impediment to conclude agreement for its sale as a preparatory step
towards its finalisation--Such agreement was thus capable of being specifically enforced
through Court of law.

Imambandi v. Haji Mutassaddi A I R 1918 PC 11; Mir Sarwarjan's case 39 Ind. App. 1
PC; Subramanyam v. Subba Rao P L D 1948 PC 52; Sarwarjan v. Fakhruddin
Mohammad 39 Cal. 232 PC; Khalid Rasid and others v. Mst. Ajaib Khanum and others
1988 C L C 1755 and Siddique Khan and 2 others v. Abdul Shakur Khan and another P L
D 1984 SC 289 ref.

(g) Specific Relief Act (I or 1877)------

---- S. 12 --- Punjab Pre-emption Act (I of 1913), S.13 --- Court Fees Act (VII of 1870),
S.1.7 --- Plaint in suit embracing two distinct subjects --- Liability to pay court-fee ---
Plaintiffs were obliged to separately assess and pay court-fee on their plaint in suit which
embraced two distinct subjects --- Plaintiffs having assessed one subject in plaint paid
court-fee on relief for possession through pre-emption but paid no court-fee in respect of
their claim for specific performance of agreement to sell in their favour --- Plaint was
thus, deficiently stamped and plaiqtiff9 were bound to make good such deficiency in
court-fee.

Siddique Khan and 2 others .v. Abdul Shakur Khan and another P L D 1984 SC 289 rel.

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

---- S. 12(ii) --- Object and scope of Court Fees Act, 1870 --- Party paying deficient
court-fee --- Duty of Court --- Court Fees Act, 1870 was enacted merely to collect
revenues for the benefit of the State, object whereof was -not to arm a contesting party
with a weapon of defence to obstruct trial of an action --- Where court-fee paid on plaint
or memorandum of appeal was deficient, Court had ample powers to call upon defaulting
party to make good deficient court-fee --- Appellate Court had duty to see that proper

Page No. 2 of 14
court-fee was paid not only in regard to proceedings before it but also with regard to
proceedings in the lower Court.

(i) Specific Relief Act (I of 1877)---

---- S. 12 --- Civil Procedure Code (V of 1908), O.VII, R.11 & S.100 --- Second appeal
--- Plaintiff having included two distinct reliefs in his plaint, failed to pay court-fee in
regard to relief of specific performance of agreement of sale--Plaintiff was directed to
make good deficiency in court-fee within specified period failing which his suit would be
deemed to have been dismissed for non-payment of proper court-fee.

Nizam-ud-Din for Appellants.


Asif Saeed Khan Khosa for Respondents.

Dates of hearing: 12th and 18th December, 1990.

JUDGMENT

This second appeal by the defendants 1 and 2 in the civil suit before the trial Court raises
an interesting legal question about competence of a legal guardian to deal with the
immovable property of his ward and a less important question about the effect of
non-payment of court-fee on the alternative relief for specific performance of an
agreement to sell, and, the power of the Court to direct payment of deficit court-fee.

First, the facts which gave rise to this litigation. 39 kanals, 2 marlas of land at Mauza
Bhian-Wala, Khurd in Tehsil Feroze-Wala, was owned by Noor Muhammad, Wali
Muhamad sons, Mst. Khurshid Begum daughter, and Mst. Inayat Begum widow of
Ghulam Muhammad. By deed of sale executed on 28-2-1967, and, registered on
14-3-1967, above land was sold by them to Manzoor Hussain, and, Akhtar Hussain minor
sons of Ch. Muhammad Hussain for a consideration of Rs.7500. Rs.500 were paid
earnest. An equal amount was retained for payment to the mortgagees, and the rest of the
amount was paid at the time of registration of the sale-deed. Sale-deed is Ext.D1. As the
vendees were minors, the sale was completed in their favour by their father who paid the
consideration for it.

Bhole Khan, and, his brother Rasool Bakhsh as collaterals intended to claim pre-emption
in respect of the above sale and wanted to assert preference through Court. Upon gaining
awareness of intent to enforce pre-emptive rights by them, father of the vendees agreed to
re-convey the land to them upon payment of Rs.8,250 and upon receiving Rs.2000 as
advance payment, agreed to complete the sale within one month of the payment. of the
rest of the amount. An agreement to re-convey the land was reduced to writing on
8-3-1968. It is Ext.P2. It was signed by the father of the vendees, attested by two
witnesses, and, thumbmarked by Bhole Khan. As agreement to re-convey the land did not
materialise, Bhole Khan and Rasool Bakhsh as plaintiffs sued for possession of the land
by pre-emption, and, in the alternative for specific performance of agreement dated
8-3-1968, upon payment of the balance price. Suit was instituted on 11-5-1968. To the
suit, apart from vendees, erstwhile owners of the land were-also impleaded as defendants.
Vendees were defendants Nos.1 and 2, whereas the original owners were defendants
Nos.3 to 6 in the suit. As defendants Nos.1 and 2 suffered from minority, plaintiffs
proposed their father to act as their guardian ad litem in the suit riled by them.

Suit was resisted by defendants Nos.1 and 2 only. Written statement was filed on their
behalf by Muhammad Akrarn as their sarprast. It was averred that as petition for
appointment of guardian ad litem, and list of relations of the minor-defendants were not
filed, the plaint needed amendment; that the plaint was deficiently assessed for purposes
of court-fee and jurisdiction, and, less amount of court-fee was paid. On merits, it was
averred that the father had no right to bind the minors for the sale of their land. Prior to
settlement of issues, on the application of the plaintiffs, Muhammad Akram, a step
brother of the minors, was appointed as their guardian ad litem on 5-11-1968.

Trial proceeded on the issues settled by the trial Court on 11-2-1969.

Page No. 3 of 14
(1) Whether the suit of the plaintiffs to enforce their right of pre-emption against the
vendee-defendants is within time?

(2) What is the effect of agreement executed by Muhammad Hussain in favour of the
plaintiffs for the specific performance of the contract?

(3) Whether the plaintiffs have superior right of pre-emption?

(4) Whether the ostensible price of the suit land viz Rs.7,500 was fixed in good faith or
actually paid?

(5) If issue No.4 is not proved, what is the market value of the suit land?

(6) Relief.

At the instance of the plaintiffs, on 24-6-1969, an additional issue numbered 6-A was
added. It reads:-

"In the alternate, whether the plaintiffs are entitled to a decree for possession of the land
on the ground of the specific performance of the agreement? If so, its effect?"

Upon analysis of the evidence adduced, the trial Court dismissed the suit for pre-emption,
and, decreed specific performance of agreement to sell upon payment of Rs.8,250 vide its
judgment passed on 28-4-1972 by directing execution of the sale-deed and its registration
in accordance with agreement marked Ext.P2. The trial Court found that suit for
pre-emption was barred by limitation but gave relief of specific performance. Issues
Nos.3, 4 and 5 were left undecided by the trial Court. Against decree of the trial Court,
plaintiffs and defendants 1 and 2, filed separate appeals in the Court of learned District
Judge, Sheikhupura who by a common judgment dismissed them on 15-12-1972. Against
his judgment, defendants 1 and 2 came up in appeal through their guardian ad litem.
Appeal was admitted to hearing on 22-1-1973. As for plaintiffs in the suit, they seem to
be satisfied with the judgment, and, have not challenged it.

On behalf of the appellants, their learned counsel Sh. Nizam-ud-Din raised two
contentions. His first contention was that in absence of proper court-fee paid upon the
plaint for the relief of specific performance, the Court could not have decreed that relief
because there was no valid plaint before it. His second contention was that a legal
guardian could not have bound his minor sons for agreeing to sell their land and as the
agreement suffered from want of mutuality, it could not be specifically enforced by a
Court of equity. In this behalf, learned counsel referred to the cases in Waghela Rajsanji
v. Shekh Masluddin and others I L R 11 Bombay 551, Kali Dutt Jha and others v. Abdul
Ali and another I L R 16 Calcutta 627, Abdul Haq v. Muhammad Yehia Khan and others
A I R 1924 Pat. 81, Pandit Krishna Chandra Sharma v. Seth Rishabha Kumar AIR 1939
Nag. 265, Suresh Chandra Pradhan v. Ganesh Chandra De and others A I R 1951 Orissa
351, and, Ranichandra v. Manikchand and another A I R 1968 Madhya Pradesh 150.

Rasool Bakhsh respondent died on 28-1-985. His legal representatives were substituted
on record. Bhole Khan died on 15-8-1985. His heirs were also substituted for him on
record. They are represented by Mr. Asif Saeed Khan Khosa, Advocate who argued on
their behalf that father as natural guardian of the minors could deal with their immovable
property, if that act was for their benefit and necessity, and, as both were found to exist in
the case, the agreement to sell executed by the father was specifically enforceable. In
support of this statement, learned counsel heavily relied upon Sri Kakularn
Subrahmanyarn and Another v. Kurra Subba Rao A I R (35) 1948 Privy Council 95,
Abdul Hakim v. Jan Muhammad and others A I R (38) 1951 Allahabad 247, Amir Ahmad
and others v. Meer Nizarn Ali A I R 1952 Hyderabad 120, Ganga Singh and another v.
Santosh Kumar and another A I R 1963 Allahabad 194 and monographs from the books
on Mahomedan Law.

I shall first advert to the question about the powers of a legal guardian under Mahomedan
Law to alienate immovable property of his ward. Distinguished from a de facto guardian,
father is legal guardian of the property of his minor children and Mahomedan Law gives

Page No. 4 of 14
him power to alienate immovable property belonging to them in specified conditions.
Power to alienate is neither absolute nor without fetters. Mahomedan Law subjects this
power to stringent conditions. Books on Muslim Law lay down that a legal guardian can
sell the immovable property of his ward; (1) where he can obtain double its value; (2)
where the minor has no other property, and, the sale is necessary for his maintenance; (3)
where there are debts of the deceased, and no other means of paying them; (4) where
there are legacies to be paid, and no other means of paying them; (5) where the expenses
exceed the income of the property; (6) where the property is falling into decay; and (7)
when the property has been usurped, and the guardian has reason to fear that there is no
chance of fair restitution. Apart from the above conditions, a legal guardian has no power
to alienate immovable property of his ward. In para 90 of A Hand-Book of Mahomedan
Law by Babu Ram Verma, the author observes:------------

"A legal guardian shall be entitled to exercise the following powers:--------

(a) He may sell or mortgage immovable property of the minor in the following cases (but
not in others):-

(i) where he can obtain double the value of the property;

(ii) where it is necessary to do so for the maintenance of the minor, the minor having no
other property;

(iii) where debts are due from the deceased person from whom the minor inherits the
property and there are no means of paying them;

(iv) where there are legacies to be paid and there are no other means of paying them off;

(v) where the expenses exceed the income of the property;

(vi) where the property is falling into decay;

(vii) where the property has been usurped and the guardian has reason to fear that there is
no chance of fair restitution.

(b) he may sell or pledge the movable property of the minor where there is imperative
necessity, such as for food, clothing or nursing."

Macnaghten in Principles & Precedents of Mohammadan Law (at page 64) says:----

"14. A guardian is not at liberty to sell the immovable property of his ward, except under
seven circumstances, viz. 1st, where he can obtain double its value; 2ndly, where the
minor has no other property, and the sale of it is absolutely necessary to his maintenance;
3rdly, where the late incumbent died in debt which cannot be liquidated but by the sale of
such property; 4thly, where there are some general provisions in the will which cannot be
carried into effect without such sale; 5thly, where the produce of the property is not
sufficient to defray the expenses of keeping it; 6thly, where the property may be in danger
of being destroyed; 7thly, where it has been usurped, and the guardian has reason to fear
that there is no chance of fair restitution.

15. Every contract entered into by a near guardian on behalf and for the benefit of the
minor, and every contract entered into by a minor with the advice and consent of his near
guardian, as far as regards his personal property, is valid and binding upon him provided
there be no circumvention or fraud on the face of it."

Asaf AA. Fyzee, in Outlines of Muhammadan Law (Fourth Edition) dealing with the
powers of the legal guardian to sell immovable property of the minor says:----

"In Sunnite law, the father is the guardian of the minor's property; failing him, in order of
priority, the following are entitled:

Page No. 5 of 14
(i) the father's executor (ii) the father's father; (iii) the paternal-grandfather's executor.
These are the legal guardians of the property of the minor. It must be emphasised that the
substantive law of Islam does not recognize any other relatives, such as the mother, the
uncle or brother, as legal guardians, but they may be appointed by the Court."

As far the power of the legal guardian to alienate the immovable property of his ward, it
is stated that:---

"The legal guardian cannot sell the immovable property of the minor except where he can
obtain double its value; or where it is necessary for the maintenance of the minor; or
where there are debts and legacies to be paid, and there are no other means; or where the
property is falling into decay."

The question with regard to powers of guardian appointed by the Court is somewhat
different. There the guardian derives his authority from the order of the Court appointing
him.

Syed Ameer Ali after enumerating restrictions put on the sale of immovable property of
the minor by his guardian said:-----

(c) He may also sell it when there are some general provisions in the wasiyet (will) of the
testator, which cannot be carried into effect without the sale of the property.

(d) When the property is required to be sold for the purpose of paying off the debts of the
testator, which cannot be liquidated in any other way.

(e) When the income accruing from the estate is not sufficient to defray the expenditure
incurred in its management and the payment of the kharaj (land-revenue).

(f) When it is in imminent danger of being destroyed or lost by decay.

(g) When the minor has no other property, and .the sale of it is absolutely necessary for
his maintenance.

(h) When it is in the hands of a usurper, and the guardian has reason to fear there is no
chance of restitution.

In other words, even a guardian de jure, like the father or his executor, cannot sell the
immovable property of the minor without absolute necessity or unless it is to the manifest
or evident advantage of the minor (emphasis supplied by me)."

Para 362 of Principles of Mahomedan law by D.F. Mulla laid down a similar principle. In
paragraphs 270 to 272 of Mahomedan Law by Faiz Badruddin Tyabji, the question was
dealt with in similar terms. Paragraph 2"70 reads:-----

A guardian of the property of a ward is bound to deal with it as carefully as a man of


ordinary prudence would deal with it, if it were his own and, subject to the provisions of
Chapter III of the Guardians and Wards Act, he may do all acts which are reasonable and
proper for the realization, protection or benefit of the property."

Para 271 states:---

"The guardian of the property of a minor may either exercise or refuse to exercise
the-right of pre-emption on behalf of the ward."

There is no dispute that pre-emption is a mode for fresh acquisition of immovable


property and could not be equated with its sale for necessity of and benefit to the minor.
Paragraph 272 is more near the point. It states:-

(1) A guardian cannot validly contract in the name of a ward, so as to impose on him a
personal liability.

Page No. 6 of 14
(2) It is not within the competence of manager of a minor's estate, or of a guardian of a
minor to bind the minor, or the minor's estate, by a contract for the purchase of
immovable property.

(3) A guardian's powers with respect to the immovable property of his ward, are restricted
so that he cannot alienate it unless there is absolute necessity for the alienation, or it is
greatly for the benefit of the war (emphasis has been supplied by me)."

More important question would be whether the listed conditions permitting the sale of
immovable property of the ward by his legal guardian are exhaustive of all the situations
or are illustrative of a principle of law governing rule of necessity and benefit to the
ward. For example, the first instance which gave sanction for the sale of immovable
property of the minor for double' its value is clearly illustrative of a monetary benefit.
Similarly, other conditions which gave power for sale of the immovable property of the
minor by his legal guardian are a pointer in the direction of necessity and benefit.
Therefore, the underlying governing rule in case of alienation of immovable property
owned by the minor by his legal guardian would be the rule of absolute necessity and
benefit. An example which readily came to my mind and which supports the above
conclusion was the ailment of the minor and his treatment requiring an expenditure which
could be met out of the sale of his immovable property only. Placed in such a dilemma,
should the ward be allowed to deteriorate and languish to death at the cost of conserving
his property or could the legal guardian ' lay his hands on his property for saving his life.
Neither money nor property are an end in themselves. Their purpose is to promote human
weal and that is and should be their proper role in human society. In case of absolute
necessity of or clear benefit to the minor, a legal guardian can alienate immovable
property belonging to him. In my opinion, the enumerated instances are illustrative of a
basic rule of absolute necessity of and benefit to the minor. It appealed to reason also and
I would, therefore, humbly accept it as a correct rule of Islamic Law to govern the power
of a legal guardian to alienate immovable property owned by his ward. Thus far, I dealt
with the point without the aid from the case-law in pre-partition and post-partition era.
There are a large number of decided cases which dealt with the question relating to power
of a guardian to alienate the immovable property of the ward both under Muslim and
Hindu law. Those cases relate to the power of a guardian to purchase immovable property
for the minor as also its sale and also the question about specific performance of
agreement to purchase or sell the immovable property in the name of the minor. All these
cases have been admirably noticed in a Full Bench judgment from Hyderabad High Court
in Amir Ahmad and others v. Meer Nizam Ali A I R 1952 Hyderabad 120. 'Leading
judgment in the Full Bench case was given by M.S.Ali Khan, J. In para 3 of the
judgment, the learned Judge observes:----

"There remains, however, 'a separate and distinct' question whether and how far a minor
can make a contract through his guardian. Cases have taken the distinction between the
various grades of the guardians. The only guardians, who can within certain limits, make
disposition of minor's immovable property are recognized to be the father, his executor,
grandfather, his executor or guardian appointed by the Court. Every other guardian like
the mother, the uncle, elder brother, etc. are termed de facto guardians and are deemed to
be usually without authority to dispose of or bind the minor for the purchase of
immovable property. Question remains how far the dispositions by a father and the other
de jure guardians are binding on the minor. As explained in 'Imambandi v. Haji
Mutasaddi', A I R 1918 P C 11, de jure guardian has power to dispose of minor's
immovable property, though this power is subject to stringent conditions, all governed by
the basic and fundamental principle that the acts of the guardian should be to the
advantage and benefit of the minor and his estate. For fulfilling the actual wants of the
minor and for his bringing up and maintenance as well as for the preservation of his
property these guardians are empowered to dispose of certain immovable property of the
minor. Otherwise, even dispositions by them are not considered valid. Taking the reverse
side of the case, namely, acquisition of a property for the minor if the contract for the
same is for the benefit of the minor and it is actually completed so as to transfer the
ownership of the property to the minor, the transaction has been held to be valid."

Down below in para 9, the learned Judge stated:---

Page No. 7 of 14
"Lastly, 'I may refer to the case of 'Shri Kakulam Subramaniam v. Kurra Subba Rao', P L
D 1948 PC 52. There the mother of a minor son has contracted as guardian to sell a land
for paying off the debt of the father of the son and had given possession of it to the
pr6misee. The suit for specific performance by the promisee was dismissed but on appeal
to their Lordships of the Privy Council it was held that:

"Their Lordships entertained no doubt that it was within the powers of the mother as
guardian to enter the contract of sale on behalf of the respondent for the purpose of
discharging his father's debts, and that, if the sale had been completed by the execution
and registration of the sale-deed, the respondent would have been bound under Hindu
Law."

They observed further that:

"The position of the minor under such a contract is discussed in the following passage
with which their Lordships agree, in Pollock and Mulla's Indian Contract and Specific
Relief Act, 7th Edn., p.70:

"A minor's agreement being now decided to be void (by 'Mohori Bibi v. Dhurmodas
Ghose', 30 Ind App 114 (PC), it is clear that there is no agreement to be specifically
enforced; and it is unnecessary to refer to former decisions and distinctions, following
English authorities which were applicable only on the view now overruled by the Privy
Council. 'It is, however, different with regard to contracts entered on behalf of a minor by
his guardian or by a manager of his estate'. In such a case it has been held by the High
Courts of India, in cases which arose subsequent to the governing decision of the Privy
Council, 'that the contract can be specifically enforced by or against the minor, if the
contract is one which it is within the competence of the guardian to enter into on his
behalf so as to bind him by it and, further, if it is for the benefit of the minor'. But if either
of these two conditions is wanting, the contract cannot be specifically enforced at all."

This, in my opinion, is an important and recent pronouncement of the Privy Council and
if the portions underlined (here in single inverted commas) were carefully considered, it
would be evident that their Lordships of the Privy Council held with regard to contracts
entered on behalf of minors by their guardian that they can be specifically enforced by or
against the minor if the guardian Js competent to make a contract binding on the minor
and the contract is for the benefit of the minor.

(6) It will be seen that the case of 'Mir Sarwarjan v. Fakhruddin Mahomed', 39 Ind App I
(PC), is based on two grounds, namely, that no contract by a guardian of a minor can be
specifically enforced, as in the first place, it lacks mutuality, and, in the second place, a
guardian or manager cannot bind a minor by personal covenants. The above review of the
cases will show that a contract for the sale or purchase of immovable property is regarded
as a personal covenant for the reason that having regard to S.54 of the T.P. Act a mere
contract does not pass any into rest in or create any charge on land; that until it is
executed and registered the title to the land does not pass from a vendor to the vendee,
and the contract remains a personal covenant. In spite of this, it has been held in the cases
cited above that if the contract for sale is entered into by a certificated guardian under the
Guardians and Wards Act or the Court of Wards Act it will be specifically enforced.
Similarly, a reference to, the summary of Mr. Justice Seshagiri Iyer's judgment given
towards the end of para 5 above will show that a personal covenant of a guardian to
create a charge over the property in his management binds the minor; that if the guardian
acts for the benefit of the minor and borrows, the creditor can sue the minor upon the
decree obtained against the guardian on the principle of subrogation; that personal
covenants of the guardian for necessaries bind the minor or his estate and that a personal
covenant acknowledging a debt binds the minor by keeping alive a pre-existing debt; all
these cases in which personal covenants of guardians bind the minors are so
well-established that they are termed as accepted propositions by Mr. justice Seshagiri
Iyer.

Moreover, their Lordships of the Privy Council in the well-known case of 'Hanuman
Pershad', (6 Moo Ind App 393 PC) have themselves spoken of a guardian borrowing on
behalf of a minor and charging his estate in the same sentence; this means that they

Page No. 8 of 14
consider that for necessaries a contract or covenant of loan of a guardian binds the minor;
similarly in 'Watson and Co. v. Shamlal Mitter' (15 Cal 8: 14 Ind App 178 PC) an
agreement by the guardian to pay enhanced rent, which again is a personal covenant has
been held to be binding on the minor by their Lordships of the Privy Council. Again in
'Imambandi v. Sheik Haji Mustasaddi' (A I R 1918 PC 11 at p. 16 Col 1), their Lordships
of the Privy Council have held clearly that a Mohammadan guardian can bind a minor's
estate by a personal covenant' entered into for the latter's benefit. Similarly, in 'Kali Dutt
Jha v. Abdul Ali', 16 Ind App 96 (PC) their Lordships of the Privy Council have upheld a
sale by the father for the purpose of putting an end to the pending litigation. All these
various instances will show that even a personal covenant whether it be of borrowing
money or selling immovable property by a guardian binds the minor, if it is for the
obvious benefit of the minor or for legal necessity. In fact, works of Moslem Law will
show that a guardian can sell the immovable property of his ward in the following among
other cases:

(i) Where he can obtain double its value;

(ii) Where the minor has no other property and the sale of it is absolutely necessary for
the maintenance;

(iii) Where the late incumbent died in debt which cannot be liquidated but by the sale of
such property;

(iv) Where there are some general provisions in the will which cannot be carried into
effect without such sale;

(v) Where the produce of the property is not sufficient to defray the expenses of keeping
it;

(vi) Where the property may be in danger of being destroyed; and

(vii) Where it has been usurped and the guardian has reason to fear that there is no chance
of fair restitution. (Vide Macnaghten's Principles of Mohammadan Law, Ch.9, Principle
14; Amir Ali's Mohammadan Law, vol. II, 2nd Edn., pp. 479-480).

After all this, it is difficult to maintain that in no case personal covenants of guardians do
not bind the minors. It appears to me that all such personal covenants of guardians will
bind the minors as are for their obvious benefit or are impelled by necessity. I am fully
aware of the fact that in 'Mir Sarwarjan' their Lordships of the Privy Council spoke of the
incompetence of the guardian to bind the minor by a contract of purchase of immovable
property and the cases just cited are cases other than cases of such personal covenants;
they are cases of covenants of sale of immovable property or of creating a charge on
immovable property or of contracts of purchase of movables for necessaries. But if, in
spite of this, I mentioned these cases, it was because their Lordships of the Privy Council
themselves in 'Subramanyam v. Subba Rao', P L D 1948 PC 52 laid down the proposition
broadly and in more general terms without reference to a personal covenant for purchase
of immovable property they observed or rather approved of the observations that a
contract can be specifically enforced by or against the minor if it is one which is within
the competence of the guardian to enter into on his behalf so as to bind him by it and
further if it is for the benefit of the minor; and not only in Mr. Justice Niyogi's judgment
in Wrishnachandra v. Sait Rushaba Kumar', AIR 1939 Nag 265 but in most of the cases
cited in para 5 above no distinction is made between 9 contract for sale and, a contract for
purchase entered into on behalf of minor, as a reference to these cases will show. The
cases cited in this paragraph will thus show that personal covenants of a guardian for the
various purposes explained there including the sale of immovable property undoubtedly
bind the minor."

At bottom (column 2 of page 127), the learned Judge proceeded to say:----

"As observed by Mr. Seshagiri lyer, J., the remarks of Woodroffe, J. in 'Mir Sarwarjan's
case', when it was heard by the Calcutta High Court, that their Lordships of the Privy
Council did not intend in 'Waghela Rajsanji's case', to lay down that contracts by a

Page No. 9 of 14
manager or guardian of a Hindu family do not bind the minor but that it was only
intended to lay down that onerous covenants cannot be enforced by the guardian upon the
person or property of the minor were not taken exception to either in argument before
their Lordships or in the judgment. Hence, can we draw the inference that a guardian is
competent to do all acts which are of advantage and benefit to the minor? In my opinion,
such an inference can and should be drawn; for the only standard by which the
competency of the acts of the guardian can be judged is the standard of the interest of the
minor. However, even assuming that such an inference cannot be drawn and guardian is
competent to do only such acts as are sanctioned also by the personal law of the minor,
the question then comes to an examination of the competency of the guardian under
Muslim Law. I will, therefore, consider what contracts are considered by Moslem Law to
be within the competence of a guardian of a Muslim minor to enter into on behalf of the
minor so as to bind him by them. In principle 6 in Macnaghten's Principles and
Precedents of Mohammadan Law it is laid down about the de jure guardian that:

"They answer to the term of Curator in the Civil Law having power over the property of
the minor for purposes beneficial to him."

and in principle 15 it is said that:---

"Every contract entered into by near (De Jure) guardian on behalf of and for the benefit
of the minor with the advice and consent of his near guardian as far as regards his
personal property is valid and binding upon him provided there be no circumvention of
fraud on the face of it."

Similarly in the same book in Chapter 7 on Precedents of Guardian and Minority in case
(3) it is stated that:

"The principle of the law is, that it is allowable for a guardian, executor, or any one who
has the case (care) of the person and property of the minor to enter into a contract on his
behalf where the profit must be clear and certain. For instance, they may always accept a
gift on his behalf. In the case of a contract where there is a possibility of loss, it has been
held that a near guardian (by which is meant a father or grandfather or guardians
duly-appointed by them) is at liberty to enter into such contract on behalf of the minor.
Where, however, nothing but loss can accrue to the minor such as in the case of making a
donation or granting a loan, it is not legal for any guardian, near or remote, or for any
executor or other person under whose care he is, to act on his behalf."

And turning now to the English rendering of Hidaya of Hamilton bk. 35 p. 534 1 will
quote a passage which will throw much light upon the competence of the guardian of the
minor as also upon the capacity of a minor to contract:

"The acts of an infant are unlawful because of the defect in his understanding; but the
licence or authority of his guardian is mark of his capacity whence it is that in virtue
thereof an infant is accounted the same as an adult."

A careful consideration of this passage will show that a Moslem minor has no capacity to
contract because of defect in understanding; but that if his acts have the licence and
authority of his guardian, then the defect is removed and the minor is accounted the same
as an adult. Evidently this means that if a contract on behalf of a minor is approved or
entered into by the guardian the minor is equally bound by that contract. In the same
work and on the same page in Hamilton's Hidaya it is also laid down that the acts spoken
of in the above passage include:

“all transactions of any kind such as sale, 'purchase' and so forth."

The inclusion of 'purchase' in the acts mentioned in the passage is significant and speaks
for itself. Similarly, in Fatwai-e-Alamgiri Vol.1, Edn. 1834 page 82 it is stated that:

"That is "the acts of an infant are not valid except when they are done under the licence
or authority of his guardian; that Tahtavi has explained this to state that the father,
grandfather, their executors, Qazi or hi executor can lawfully allow an infant to trade;

Page No. 10 of 14
when an infant who understands sale and purchase, that is, understands that a sale divests
the ownership and a purchase vests it and understands also the difference between a small
and a substantial loss sells or purchases, his guardian if he considers the sale or the
purchase advisable, can assent to it; and when an infant receives such an assent or
authority for a transaction and makes it, the transaction is enforced whether it occasions
loss or not. The Sirajiah is to the same effect. In transactions which are purely
advantageous, an infant is accounted the same as an adult; and that is why an infant can
himself accept a gift and need not wait for the authority of the guardian."

Again in Allfatawi-e-Kubra, Vol. III p. 38 by Than Hajar Al Miski in a case where:

"A minor was in one town and his property in another town it was held by the Moslem
servants that the Qazi of the place where the property was, can purchase lands for the
benefit of the minor."

Again on page 48 it is laid down that:

"if owing to disturbed conditions no Government has authority over a town, the people of
the town should elect a Qazi and the Gazi should appoint a guardian for orphans, that is,
for fatherless minors and he can enter into a contract on behalf of a minor for the
exchange of one garden for another garden if the transaction is for the benefit of the
minor."

It will be seen that in these passages minor's transaction of sale as well as of purchase of
movables as well as immovables are allowed when they are entered into with the assent
and authority of the near or De Jure guardians. This means sufficiently clearly that a
Muslim guardian can bind by personal covenants a Muslim minor even when the
covenant is for the purchase of immovable property. Of course, as laid down elsewhere in
Hidaya and Fatawai-e-Alamgiri and quoted by Justice Amir Ali in Imambandi v. Haji
Mutasaddi', A I R 1918 PC 11 at p. 16, Col.1, contracts by a De Jure guardian are
governed by strict conditions of minor's necessity and benefit. So much, with all respect,
as to the first ground of decision in the 'Mir Sarwarjan's case', namely, that a guardian is
not competent to bind the minor by a personal covenant for the purchase of immovable
property."

Down below in para 11 of the judgment, the learned Judge proceeds to observe:

"The 'Subramanyam's case', A I R 1448 PC 95 as well as almost all the cases in which
specific performance has been decreed, are cases of sale of minor's property by the
guardian; the question is, whether in view of the fact that 'Mir Sarwarjan's case', 39 Ind
App I PC was a case of purchase of immovable property by the guardian, there should be
any difference between the two categories of cases, I am of opinion that there should not
be any difference; for, as pointed out by the learned Judge, Mr. Viswanatha Sastri, in the
arguments before the Board in 'Subramanyam's case', reference had been made to the
Indian decisions where specific performance had been refused of guardian's contract on
the ground of want of mutuality in suits by or against the minor; yet, their Lordships
upheld the contention that a guardian's contract was specifically enforceable if the
contract was beneficial to the minor. Mr. Justice Viswanatha Sastri, though he utterly
dislikes 'Mir Sarwarjan's Case', yet has remarked that as the 'Subramanyam's case', as
well as the case before him, were cases of sale of immovable property of minor by a
guardian and, as 'Mir Sarwarjan's case', was a case of purchase of immovable property,
the doctrine 'of the latter case 'need not' be extended to the former class of cases. I
understand that this remark of his Lordship was due to the fact that as the case before him
was not that of purchase of immovable property it would be mere 'Obiter Dicta', if he
extended the principle to a case of purchase as well, otherwise, when he has taken the
distinction between contracts by a minor and contracts by a guardian and when he has
expressed his strong disapproval of the doctrine of mutuality as understood in many an
Indian decision, it cannot be said that he was not prepared to extend the principle to the
case of purchase of immovable property by a guardian. However this may be, the point
that I want to make is that in the 'Subramanyam's case', their Lordships of the Privy
Council have approved the passage of Pollock and Mulla quoted in para. 5 (9) of this

Page No. 11 of 14
judgment, in which the law has been laid down in broad terms without any limitation to
contracts of sale."

In para 12, the learned Judge said:----

"The position then comes to this. A Muslim 'De, Jure' guardian, according to my reading
of the Muslim Law, is empowered not only to dispose of minor's property in case of
necessity and to advance the interest of the minor, but is competent also to acquire
property on his behalf if it is to the obvious advantage of the minor (vide the references to
original texts in paragraph 6 above). Hence, in my opinion, there seems to be no bar in
Muslim Law to uphold contracts for purchase of immovable property made by the
guardian on behalf of a minor if they are to the obvious advantage of the minor. As a
Muslim guardian is thus competent to contract on behalf of the minor, it is evident that, if
in any given case both the conditions of competence of the guardian and the benefit of the
minor stated in the passage from Pollock and Mulla quoted by their Lordships of the
Privy Council with approval are fulfilled, then there is no bar to decreeing specific
performance of a contract for the purchase of an immovable property by a Muslim
guardian. It appears to me also that the first and foremost principle of guardianship is that
the interest of the minor is paramount and should be attended to and it is hard to hold that
if a contract for the purchase of immovable property is for the benefit of the minor, the
minor cannot take advantage of the contract entered into on his behalf by his guardian. I
have shown above also that in America the objection of mutuality does not apply to the
contracts entered into by the guardians but is confined only to the contracts entered into
by the minor himself. All these considerations impel me to hold that in a contract for sale
or purchase of immovable property entered into by a 'De Jure' guardian of a minor should
be specifically enforced if they fulfil the two tests of the competency of the guardian and
the benefit of the minor. It should be noted also that, as held in America, in a suit for
specific performance by or against a minor on a contract of a guardian of a minor, the
minor's interest is safeguarded, for the Court can always refuse specific performance if
the contract is not fair to him. But I must also state that whatever the state of law might
appear to be from a study of original Arabic bo9ks fm Fiqh, still there is the very clear
pronouncement of their Lordships of the Privy Council in 'Mir Sarwarjan's case', 39 Ind
App 1 PC, that it is not within the competence of a guardian of a Muslim minor to bind
him by a personal covenant of the purchase of immovable property. As to this I am of
opinion that we will have to read the case along with the 'Subramanyam's case', P L D
1948 PC 52, also decided by their Lordships of the Privy Council; and as in that case
their Lordships have stated the law on this question in broad terms and have upheld the
contract in respect of immovable property entered into by a guardian on its fulfilling the
two tests of competency of the guardian and the benefit of the minor, we should also
follow these tests only."

Having observed thus the reference "Whether a minor who has agreed to purchase
property through his guardian can bring a suit for the specific performance of the
contract?" was answered 'Yes' if the guardian is a de jure guardian and competent to bind
the minor by his contract and the contract is for the obvious benefit of the minor. Siddiqi,
J., was in full agreement with judgment of M.S. Ali Khan, J., but Deshapande, J., gave
qualified concurrence by observing:----

"I fully agree with the opinion of my learned brother Dr. Siadatali Khan, J., that in view
of the judgment of their Lordships of the Privy Council in 'Subramanyan v. Subba Rao', P
L D 1948 PC 52 and to all other cases referred to by him in his judgment, the suit for the
specific performance can be instituted in case the contract is for the sale of the property
of the minor by a guardian, if it is within the competence of the manager of a minor's
estate or within the competence of the guardian of minor to bind the minor or a minor's
estate by the contract. But so far as the purchase of the immovable property is concerned
the same rule cannot apply as it cannot be held that it is within the competence of the
manager of the minor's estate or within the competence of guardian of a minor to bind a
minor or minor's estate by a contract. Therefore, in my opinion, so far as the question of
purchase is concerned, which is the specific question referred to us, the law as laid down
by their Lordships of the Privy Council in 'Sarwarjan v. Fakhruddin Mohammad', 39 Cal
232 PC stands and there cannot be a suit for specific performance of the contract when
the contract is for the purchase of immovable property by a guardian of a minor."

Page No. 12 of 14
I have extensively quoted from the judgment of the Full Bench merely to show as to what
should be the correct rule or principle to govern the power of a legal guardian under
Muslim Law in case of the alienation of the immovable property of his ward. In my
opinion, the case lays down a correct statement of law and it is my view also. However,
as the c4se before me related to a contract for sale of immovable property, I shall confine
the rule in regard to only the sale of the minor's property by his legal guardian and as for
the power of guardian to purchase the immovable property for the minor. I shall not
express any final opinion by leaving it for further examination on another appropriate
occasion. As far the decision from our own Court in Khalid Rashid and others v. Mst.
Ajaib Khanurn and others 1988 C L C 1755, it is not of much assistance on the
exhaustiveness of the conditions permitting the sale of minor's property by his legal
guardian. With respects, without much discussion, circumstances listed in paragraph 362
of Mahomedan Law by D.F. Mulla were taken as exhaustive of the powers of a legal
guardian to alienate the immovable property of his minor son. In my opinion, it is not a
binding authority on the powers of a legal guardian to alienate the minor's property in
those conditions only. The true and correct rule as would be seen from the preceding
discussion is the rule of absolute necessity of and the benefit to the minor apart from the
rule of competence of the guardian.

After having stated the rule, I shall revert to the facts to rind out whether the act of the
guardian in concluding an agreement for transfer of the land at enhanced sale price
qualified the tests of competence, necessity and benefit. Sale in favour of the minors was
pre-emptible. Pedigree-table Ext.P3 indicated that plaintiffs were brothers of Ghulam
Mohammad. Except for the land sold by Inayat Begum, their right of pre-emption was
superior qua the vendees. Plaintiffs said that they intended to pre-empt the sale and also
gave evidence in support of it. To save the vendees from unnecessary expense and
hazards of Court litigation, their father who was also their natural guardian agreed to
re-convey the land at the enhanced sale price and received Rs.2000 as earnest. Sale-decd
in favour of the vendees was registered on 14-3-1967. From the date of registration of the
sale-deed, pre-emption suit could have been instituted till 13-3-1968. However, a few
days earlier, the father entered into an agreement to transfer the land to the plaintiffs and
agreed to finalise the sale within a month. After going through the record, I am
sufficiently convinced that Courts below rightly observed on the genuine execution of
agreement Ext.P2. This being a finding of fact is not open to review in second appeal.
Even otherwise, Ch. Mohammad Hussain who in the opinion of the appellants' learned
Advocate was a prominent person, did not step in the witness-box to deny his act and felt
satisfied in leaving the defence of the suit to his other son Mohammad Akram who was a
stepbrother of defendants 1 and 2. DW-2 vainly feigned ignorance about signatures of his
father on Ext.P2. His statement was untrue and unconvincing. Record disclosed no defect
in person of Ch. Mohammad Hussain. He purchased the land in dispute for his sons in
1967, for sale price of Rs.7,500. Those days, it was not a small amount. He himself paid
the sale price. Clearly, his intention was to benefit his sons. However, when he
apprehended pre-emption from the plaintiffs, he concluded an agreement with them to
transfer the land to them at the enhanced price leaving some margin of profit in that deal
also. His act was not detrimental to his minor sons. Rather, in the circumstances, it was
beneficial to them. He intended to save the property but finding that course difficult
agreed to re-transfer it at better price. Agreement concluded by him was thus clearly
binding on the minors. There was no bar for specific enforcement of this executory
agreement. If in case of necessity and benefit the guardian could sell the property
outright, there was no impediment to conclude an agreement for its sale as a preparatory
step towards its finalisation. Therefore, the agreement was capable of being specifically
enforced through a Court of law.

Finally, comes the question about non-payment of court-fee on the relief for specific
performance. Plaint in the suit contained two reliefs. First relief was with regard to
pre-emption of the sale and the second which was expressed in the alternative was for
specific performance of an agreement to sell concluded on 83-1968. For purposes of
court-fee, plaint was assessed at fifteen times of the net-profits accruing from the land in
dispute in the year preceding the institution of the suit. Annual net-profits were assessed
at Rs.300 and eventually court-fee of Rs.242.25 was paid upon the plaint. Initially, the
defendants had objected to the valuation of the suit and contended that it was incorrectly

Page No. 13 of 14
assessed and less amount of court-fee was paid on the plaint. It is seen from an order of
the trial Court passed on 25-3-1970 that deficit court-fee calculated on fifteen times of the
net-profits was paid in pursuance of a direction from the Court. It is common ground that
relief for specific performance was neither separately assessed for purposes of court-fee
on it nor any court-fee was paid on that part of the relief in the trial Court. As said above,
the trial Court had decreed alternative relief for specific performance but declined relief
in regard to pre-emption. Both parties filed separate appeals in the Court below. Plaintiffs
were aggrieved of that part of the decree which refused their claim of pre-emption and
the defendants about the decree for specific performance granted to the plaintiffs. On the
memorandum of appeal, defendants had affixed court-fee stamps of Rs.243 and the
plaintiffs on their appeal Rs.242.25. In terms of section 17 of the Court Fees Act, 1870,
the plaintiffs were obliged to separately assess, and, pay court-fee on their plaint in the
suit which embraced two distinct subjects. They had assessed one subject in the plaint
and paid court-fee on the relief for possession through pre-emption but had paid no
court-fee in respect of their claim for specific performance of an agreement to sell in their
favour. To this extent, their plaint was deficiently stamped and the plaintiffs were bound
to make good the deficiency in court-fee. Rule laid down in Siddique Khan and 2 others
v. Abdul Shakur Khan and another P L D 1984 S.C 289 impels for a reasonable
opportunity allowable to the respondents for paying the discovered deficit court-fee
before invocation of a punitive action. Even otherwise, court-fee is primarily a question
between the suitor (plaintiff) and the State. The Court Fees Act was enacted merely to
collect revenues for the benefit of the State and it is not intended to arm a contesting
party with the weapon of defence to obstruct the trial of an action. As far the appeal riled
by the defendants in the lower Court against decree for specific performance passed
against them, the memorandum of appeal was also deficiently stamped. Subject-matter in
dispute in appeal filed by them was the decree for specific performance in respect of an
agreement of sale for a sum of Rs.8,250. The appellants (defendants) were obliged to pay
ad valorem Court-fee according to the amount of consideration viz. the price payable for
the land agreed to be sold. Thus seen, proper court-fee was not paid upon the
memorandum of appeal. They had paid court-fee of Rs.243 whereas the correct amount
of court-fee payable by them on the memorandum of appeal was Rs.516.37. Therefore,
the court-fee paid was less by Rs.273.37. This amount of court-fee they are bound to pay.
The appellate Court has ample power under section 12 (ii) of the Court Fees Act, 1870 to
call upon a party to make good the deficient court-fee chargeable in the lower Court for it
is its duty to see that proper court-fees are paid not only in regard to proceedings before it
but also with regard to the proceedings in the lower Court.

In view of the aforesaid, appeal fails and is, accordingly, dismissed with no order as to its
costs in this Court. Respondents (legal representatives of Bhole Khan and Rasool
Bakhsh) are called upon to pay ad valorem court-fee on the sum of Rs.8,250 in the trial
Court by or before 18-2-1991 failing which their plaint in regard to specific performance
shall be deemed to have been rejected under Order VII, rule 11 Civil P.C. As for
appellants, they shall make good the deficit court-fee on Rs.8,250 (less the amount of
court-fee already paid on the memorandum of appeal) in the lower appellate Court by or
before the above date failing which their appeal shall also be deemed to have been
dismissed for nonpayment of proper court-fee.

At the end, I must express appreciation for the valuable assistance rendered by the
learned counsel for the parties in the case.

AA./M-2590/L Appeal dismissed

Page No. 14 of 14
P L D 1987 Lahore 290

Before Mahboob Ahmad, J

NATIONAL BANK OF PAKISTAN--Plaintiff

versus

Messrs ELEGZENDER and COMPANY and 2 others--Defendants

C.O.S. No.9 of 1985, decided on 3rd March, 1987.

(a) Banking Companies (Recovery of Loans) Ordinance (XIX of 1979)--

---S.7--Civil Procedure Code (V of 1908), O.XXXVII, R. 3--Leave to defend


suit--Defendants denying execution of documents mentioned in the plaint--Plaintiff
alleging that property which was equitably mortgaged by defendant with plaintiff had
been further alienated by him without permission of plaintiff, but defendant denying said
allegation as well-Leave to appear and defend suit, however, was granted to defendant
conditionally to enable the plaintiff to prove execution of denied documents by leading
evidence.

(b) Banking Companies (Recovery of Loans) Ordinance (XIX of 1979)--

---S.7--Civil Procedure Code (V of 1908), O.XXXVII, R. 3--Leave to defend


suit--Defendant has only to disclose a plausible defence which may give rise to a triable
issue--Defendant has not to establish that defence disclosed by him was one which was
likely to succeed at the trial.

(c) Banking Companies (Recovery of Loans) Ordinance (XIX of 1979)--

---S.7--Civil Procedure Code (V of 1908), O.XXXVII, R.3--Court Fees Act (VII of


1870), S.17 b Sched. I, Art. 1, proviso--Leave to defend suit--Court-fees--Defendant
raising question as to whether provisions regarding maximum court-fee as contained in
proviso to Art. 1 of Sched.I of Court Fees Act, 1870 was to have an overriding effect on
provisions of S.17, Court Fees Act, 1870--Question being of great general imporance
needed to be dealt within a proper trial--Leave to defend suit was granted.

Secretary of State v . N . M . R . Ayyasami Chettiar A I R 1933 Mad. 178; North Arcot


District Central Co-operative Stores Ltd. v. State Government of Madras A I R 1957
Mad. 163; In re: D. Lakshminarayana Chettiar and another A I R 1954 Mad. 594; Ava A.
Cowasjee and 8 others v. Nasreen Nizam Shah and 4 others 1984 C L C 2705; Kashi
Prosad Singh v. Secretary of State for India-in-Council ILR 29 Cal. 140 and Aslam
Industries Limited, Khanpur v. Pakistan Edible Corporation and others 1983 S C M R
316 ref.

(d) Banking Companies (Recovery of Loans) Ordinance (XIX of 1979)--

---S.7--Civil Procedyre Code (V of 1908), O.XXXVII, R.3--Leave to defend


suit--Question raised by defendant which Supreme Court of Pakistan had considered to
be of sufficient importance so as to grant leave ..to consider same--Held, grant of leave
by Supreme Court by itself was a valid rather binding consideration to hold that defence
disclosed raised a triable issue for purposes of grant of leave to defend a suit.

(e) Banking Companies (Recovery of Loans) Ordinance (XIX of 1979)--

---S.7--Civil Procedure Code (V of 1908), O.XXXVII, R.3--Leave to defend suit--One


defendant having been granted permission to appear and defend suit, other two
defendants could also be granted permission to appear and defend the suit in order to
have an effectual and complete adjudication of the controversy.

(f) Banking Companies (Recovery of Loans) Ordinance (XIX of 1979)--

Page No. 1 of 4
---S.7--Civil Procedure Code (V of 1908), O.XXXVII, R. 3--Leave to defend
suit--Defendant having plausible defence--No security with plaintiff regarding amount
claimed in the suit as value of the alleged pledged goods was very little--Leave to appear
and defend suit granted conditionally, so as to ensure recovery in case the suit was
decreed.

Sh. Jamshed Ahmad for Plaintiff. Kh. Harras Ahmad for Defendants Nos.l and 2. Sair Ali
for Defendant No.3.

ORDER

In this suit under the Banking Companies (Recovery of Loans) Ordinance, 1979,
instituted by the National Bank of Pakistan, the plaintiff, against Messrs Elegzender &
Co. and 2 others, the defendants, for recovery of Rs.31,14,875.75 two petitions for leave
to appear and defend the suit have been filed as under:-

P.L.A. No.ll-B of 1985 by defendant No.3, and

P.L.A. No.12-B of 1985 by defendants Nos.l and 2.


The relief claimed in the suit has been split up as under:-

Decree:

as against defendants Nos.l and 2 for a sum of Rs.25,14,.875.75 with costs and interest at
the rate of 14$ per annum from the date of institution of the suit till realization of the
decretal amount; and as against defendant No.3 for a sum of Rs.6,00,000 with costs and
interest at the rate of 14$ per annum from the date of institution of the suit till realization
of the decretal amount.

The suit amount has been claimed from defendants Nos. 1 and 2 on account of the
following seven transactions:

(1)Small Loan;
(2)L/C Account No.1175;
(3)L/C Account No.1251;
(4)L/C Account No.1266;
(5)L/C Account No.1371;
(6)L/C Account No.1441, and
(7)L/C Account No.1464.

The details of each transaction have been given in para. 6 of the plaint.

The basis of claim against defendant No.3 is that he stood guarantee for repayment of
Rs.6,00,000 towards the outstanding liability of defendants Nos. 1 and 2.

P.L.A. No.ll-B of 1985

The learned cousnel for defendant No.3 in support of the petition of defendant No.3 has
submitted that the documents mentioned in para. 8 of the plaint viz. Demand Promissory
Note etc. allegedly executed by defendant No.3 in favour of the plaintiff-Bank are forged
documents and that the defendant never executed any of the said documents. The learned
counsel has drawn my attention to para. 2 of the petition for leave to appear and defend
the suit in which it has been categorically asserted that neither the said defendant No.3
stood surety or guarantor for the loan in question nor has he signed any of the documents
mentioned in the plaint. This para. is supported by an affidavit. He has also drawn my
attention to the reply filed by the plaintiff to the aforementioned para. of the petition for
leave to appear and defend the suit to say that it is the admitted position that the
signatures on the documents in question are not identical as these had been allegedly
differently put by defendant No.3.

Page No. 2 of 4
The learned counsel argued that this ground alone is sufficient to grant leave to defendant
No.3 to appear and defend the suit as the controversy about the genuineness of the
documents or otherwise can only be resolved after a proper trial.

The learned counsel for the plaintiff in reply has only submitted that the documents were
signed by defendant No.3 though he cleverly put signatures in different forms and shapes;
that there is evidence to show that the said defendant No.3 stood surety and guarantee for
the loan in question upto the extent of Rs.6,00,000 and that he signed these documents in
the presence of the witnesses.

Having given consideration to the controversy I am of the view that in the attendant
circumstances narrated above leave shall have to be granted to defendant No.3 to appear
and defend the suit as the plaintiff can prove the execution of the denied documents by
the said defendant only by leading evidence.

The other question left to be examined is as to whether the leave to be granted should be
unconditional or subject to some conditions.

I am clear in my mind that leave to be granted to defendant No.3 to defend the suit shall
have to be conditional as the plaintiff has alleged that the property which was equitably
mortgaged by this defendant with the plaintiff has been further alienated by him without
A the permission of the plaintiff whilst the said defendant has asserted that no equitable
mortgage or encumberance was incurred by him.

I would, therefore, allow this petition and grant leave to defendant No.3 to appear and
defend the suit subject to his depositing a sum of Rs.3,00,000 in cash in Court within two
months from today and furnishing security within the above-mentioned period for
payment of the balance sum of Rs.3,00,000 plus the interest that might accrue in case
ultimately the suit is decided against him.

P.L.A. No.12-B of 1985

The learned counsel for defendants Nos.l and 2 in support of the petition for leave to
appear and defend the suit filed by the said defendants has mainly contended that the
court-fee paid on the plaint is deficient and is not in accord with section 17 of the Court
Fees Act, 1870. Elaborating his contention, the learned counsel submitted that as per the
plaint the claim of the plaintiff is constituted of seven different subjects, viz. one Small
Loan Account and six different Letters of Credit Accounts and, therefore, the plaint shall
be chargeable with the aggregate amount of the dourt-fees to which the plaints in suits
embracing separately each of the aforementioned subjects would be liable under the Act.
He in support of his contention relied on Secretary of State v . N . M . R . Ayyasami
Chettiar A I R 1933 Mad. 178; North A rcot District Central Co-operative Stores Ltd. v.
State Government of Madras A I R 1957 Mad. 163; In re: D. Lakshminarayana Chettiar
and another A I R 1954 Mad. 594 and Ava A. Cowasjee and 8 others v. Nasreen Nizam
Shah and 4 others 1984 C L C 2705.

The learned counsel also contended that the statements of accounts annexed with the
plaint do not reflect the correct and true position of the accounts and one instance of the
same is that penal interest has been charged in the said accounts although there is no
agreement by the defendants to pay the same.

The learned counsel also wanted to raise some more contentions on merits but I thought it
fit to first call upon the learned counsel for the plaintiff to reply to the first contention of
the learned counsel for the defendants.

The learned counsel for the plaintiff in reply to the said contention of the counsel for
defendants submitted that since the maximum court-fee of Rs.15,000 has been paid as
provided by the proviso to Article 1 of Schedule I of the Court Fees Act, there is no
deficiency in the court-fee. He in support of his above contention relied on Kashi Prosad
Singh v. Secretary of State for India-in-Council I L R 29 Cal. 140 to contend that Article
1 of Schedule I has an overriding effect qua section 17 of the Court-Fees Act.

Page No. 3 of 4
The learned counsel for the applicants-defendants at this juncture has drawn my attention
to Aslam Industries Limited, Khanpur v. Pakistan Edible Corporatiod and others reported
as 1983 S C M R 316 to contend that the precise point as to whether section 17 of the
Court-Fees Act, 1870, is subject to the proviso to Article 1 of Schedule I of the
Court-Fees Act as substituted by section 8 of Punjab Finance Act, 1973, has been held to
be one which requires consideration and that being so, a case for grant of leave to appear
and defend the suit has been made out on this sole ground inasmuch as the
applicants-defendants have disclosed a prima facie defence.

It is well-settled that in order to succeed in obtaining leave to defend a suit instituted


under Order XXXVII of the Code of Civil Procedure the defendant has only to disclose a
plausible defence which may give rise to a triable issue. He has not to establish that the
defence disclosed by him is one which is likely to succeed at the trial The defence
disclosed by the defendants in the case in hand, inter alia, raises the question whether the
provision regarding maximum court-fee as contained in the proviso to Article 1 of
Schedule I of the Court-Fees Act, 1870, is to have an overriding effect on the provisions
of section 17 of the Court-Fees Act? The question so raised is certainly of great general
importance which needs to be dealt with in a proper trial. Moreover, it has been brought
to my notice, as observed above, that the Supreme Court has granted leave to consider
this precise question in the case titled Aslam Industries Limited, Khanpur v. Pakistan
Edible Corporation and others reported as 1983 S C M R 316. To my mind the mere fact
that the Supreme Court of Pakistan has considered the question to be of sufficient
importance so as to grant leave to consider the same is by itself a valid rather a binding
consideration to hold that the defence disclosed raises a triable issue for the purposes of
grant of leave to defend a suit filed under Order XXXVII of the Code of Civil Procedure,
and in that view of the matter the defendants Nos. l and 2 have made out a case on the
basis of the first contention alone for grant of leave to appear and defend the suit.

Yet another aspect of the matter which has prevailed with me to allow the petition of
defendants Nos.l and 2 is the fact that defendant No.3 has also been granted permission to
appear and defend the suit and, therefore, in order to have an effectual and complete
adjudication of the controversy defendants Nos.l and 2 should also be granted permission
to appear and defend the suit.

The next question that again arises for consideration is whether leave should be
conditional. The learned counsel for the plaintiff has today placed on record a copy of the
conmuniction dated 7-10-1985 from defendant No.2 as Proprietor of defendant No.l to
show that liability to the extent of Rs.14,40,000 has been admitted by the said defendants.
He submitted that since there is practically no security with the plaintiff-Bank regarding
the amount claimed in the suit as the value of the alleged pledged goods is also very little,
the leave to appear and defend the suit should be conditional so as to ensure recovery in
case the suit is decreed.

In view of the foregoing allowing this petition I would grant permission to defendants
Nos.l and 2 as well to appear and defend the suit subject to their depositing in Court the
sum of Rs.14,40,000 in cash within two months from today and furnishing within the
same period adequate security for payment of the remaining amount plus interest that
may accrue if ultimately the suit is decreed against them.

The securities shall be furnished by defendants Nos.l, 2 and 3 within the period
mentioned in each case to the satisfaction of Officeron-Special Duty (J) of this Court.

Case to come up on 6-5-1987.

M.B.A./N-22/L Order accordingly.

Page No. 4 of 4
P L D 1985 Karachi 537

Before Naimuddin and Munawar Ali Khan, ii

MUHAMMAD ISMAIL AND L0 OTHERs-Appellants

versus

Sh. JAMIL-UR-REHMAN AND ANoT11ER-Respondents

High Court Appeal No. 64 of 1982, decided on 6th February, 1985.

(a) Civil Procedure Code (V of 1908)-

-- O. XIV, r. 1-Issue-Omission to record separate finding on issue-Effect-if by such


omission no prejudice was caused to any party and issue was considered in judgment,
such issue, held, had been correctly decided.
Link

(b) Civil Procedure t- ode (V of 1x108)-

-- O. 1, r. 3-Joinder of defendants-Principles governing-Defendants hailing from same


brotherhood and occupying disputed . land at one and same time-One of defendants
having filed representative suit in respect of disputed land-Such defendants could be
joined in one suit.
Link 1
Link 2

(c) Civil Procedure Code (V of 1908)-

-- O. 1, r. 3 & O. 11, r. 3-Co-sharer joined as defendant in suit Relief of partition,


possession and mesne profits sought-Joint causes of action-Effect-Since no person could
be joined as plaintiff without his consent and even if, right of such co-sharers was
restricted only to purchased portion of plot, plaintiff, held, still had right to enforce relief
with regard to partition of plot against them-Such joinder of defendants in circumstances
justified-Same questions of law and fact arising if separate suits were filed against
defendants, joinder of parties as well as causes of action was in order.
Link 1
Link 2

Laxmi Narayan v. Ramratan A I R 1924 Nag. 55 ; Rao Bahadur v: Ranganatham Chettiar


A I R 1942 Mad. 334 ; Anukul Chandra v. Bengal Province A I R 1947 Cal. 374 and
Michal Assely v. Abdul Sattar 8c Bros. P L D 1960 (W. P_) Kar. 346 ref.

(d) Civil Procedure Code (V of 1908)-

-- O. II, r. 4-Recovery of possession of immovable property-Relief of partition in such


suit-Leave of Court-Principle explained Provision of O. lI, r. 4, C. P. C does not permit
without leave of Court any cause of action to be joined with suit for recovery of
possession of immovable property excepting claim for mesne profits or damages-Plaintiff
had moved for amendment of plaint, which was allowed and accordingly relief with
regard to partition was joined with other relief with permission of Court-Lacuna having
been rectified, objection in this respect ceased to have any force.
Link

(e) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)--

-- S. 30-Notice-Conditions of-Provisions of S. 30 attracted if conditions that premises in


question was a house or shop and that defendants in possession though occupying
property unauthorizedly have paid rent and other public dues in respect of such property
were satisfied-Protection under S. 30 was not available in case of open plot or building
site.

Page No. 1 of 8
Link 1
Link 2
Link 3

Ayoob and another v. Masjid-e-Noman 1973 S C M R 604 ; Muhammad Moosa and 2


others v. Shabir Ahmed and another 1984 C L C 3227 ; Mst. Safdar Bano and 4 others v.
Inamul Hag and 2 others 1.984 C L C 2888 and Subedar Muhammad Afzal v. Syed Nafis
Ahmed and others P L D 1962 (W.P.) Lah. 45 ref.

(f) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)

--- S. 30 -Notice - Unauthorized occupation - Effect of - Person having unauthorised


occupation of plot and having raised katcha construction thereon and not paying rent and
other public dues in respect of premises in their possession-Provisions of S. 30, held,
could not be invoked in their defence-Contention that they could not be ejected except by
order of Rent Controller, repelled.
Link

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

-- Ss. 7(v) & 17, Art. 1-Preamble-Court-fee.-Deficiency of-Deficiency in court-fee to be


made before final disposal of suit-Suit did not terminate with passing of preliminary
decree but still pending and deficiency in court-fee could be made before final disposal of
case Court does not become functus officio after passing of preliminary decree.
Link

Muhammad Latif v. Muhammad Hafiz P L D 1944 F C 184 ref.

Ismial Kassam for Appellants.

Khalilur Rehman.fot Respondents.

Dates of hearing : 14th 15th 16th and 17th January, 1985.

JUDGMENT

MUNAWAR ALI KHAN, J.-This appeal is from the judgment of the learned Single
Judge of this Court, dated 31-5-1982, whereby preliminary decree was passed and Mr.
Abdul Matin, Advocate was appointed as Commissioner for the purpose of taking
accounts, besides partitioning of the property and assessing the market value thereof.

2. The case of the respondents/plaintiffs, as reflected in the plaint, is to the following


effect. The disputed plot bearing No. AM-71 with an area of 1,562 sq. yards was
purchased by late Shaikh Azizur Rehman husband of plaintiff Mst. Kulsoom Bi and other
two plaintiffs Shaikh Muhammad Younis and Abdul Qadir, both sons of Shaikh Hafiz
Muhammad Usman, in public auction held under Settlement Scheme No. 6. The said
transfer of the plot in favour of the plaintiffs was authenticated first by P. T. O. No.
12516, dated 15-2-1962 and later by P. T. D No : KYC-022060, dated 6-10-1962. Shaikh
Azizur Rehman gifted his share of the disputed plot (1,113 sq. yards) to his wife namely
plaintiff Mst. Kulsoom Bi. However, the defendants who are from the same brotheri
unauthorizedly occupied the disputed plot and continued to hold its possession despite
repeated attempts of the plaintiffs to have them vacated the same. The defendants even
raised katcha hutments on the said plot. As a last resort the plaintiffs served the
defendants with notice on 14-9- 1971 but that too was not heeded by them and they did
not vacate the plot. The plaintiffs, therefore, brought suit against the defendants with two-
fold prayer namely, possession and mesne profits.

2. The suit was resisted by the defendants who took the plea that the suit was bad for
misjoinder of parties and multifariousness and was not even otherwise maintainable
According to them since they had occupied the plot individually and there was no
community of interest they could not be joined together and proceeded against in the
same suit. It was further pleaded by the defendants that court-fee paid by the plaintiffs

Page No. 2 of 8
was grossly in. adequate and insufficient. They also raised the plea that the -suit was. not
maintainable for want of service of notice on them under section 30 of Displaced Persons
(Compensation and Rehabilitation) Act, 1958.

3. The learned Single Judge framed the following consent issues :

(1) Is the suit bad for misjoinder and multifariousness of causes action, if so, its effect ?

(2) Is the suit as framed not maintainable in law ?

(3) Whether the court-fee paid is grossly inadequate and insufficient, if so, its effect ?

(4) Whether the suit is not maintainable for want of notice under section 30 of Displaced
Persons (Compensation and Rehabilitation) Act, 1958.

(5) Whether the suit is maintainable for the partition of the Plot No. A. M. 71, III-B-91,
Artillery Maidan, Frere Road, Karachi.

(6) Whether the plaintiffs are not owners of suit plot?

(7) Have the defendants separate and independent rights and interest in respect of the
respective premises in their occupation separately, if so, its effect ?

(8) Have the plaintiffs no cause of action against the defendants ? .

(9) Whether the plaintiffs are entitled to claim possession of the suit plot ?

(10) Whether the plaintiffs are entitled to mesne profits, if .so, at what rate and for what
period ?

(11) What should the decree be ?

4. In support of their case, the- plaintiffs examined one - of -themselves namely


Muhammad Younis and Jamilur Rehman. On behalf of defendants, besides defendants,
Muhammad Ismail, Fida Ali, Allahwala and Nasiruddin have been examined. The learned
Single Judge after considering the evidence led by the parties and the documents
produced by them decreed the suit as mentioned above.

5. We have heard the learned counsel for the parties at great length and with their
assistance have gone through the relevant documents.

6. It was first contended by the learned counsel for the appellants that although the issues
were amended and in the wake of the amendment their number was increased to 11; the
learned Single Judge gave findings only on 10 issues omitting to record any finding on
amended issue No. 5. This issue is as follows

"Whether the suit is maintainable for the partition of the Plot No. A. M. 71, III-B-91,
Artillery Maidan, Frere Road, Karachi?"

7. 7.There is no doubt that no separate finding has been recorded on the above issue.
But the question to be considered is if such omission operates to the detriment of the
defendants. We have gone through the impugned judgment and have given our best
thought to this point but we see no force in the argument that any prejudice has been
caused to the defendants for the above reason. It would appear that right from the
commencement of the proceedings the learned Single Judge was conscious of the fact
that beside other reliefs, the plaintiff has sought the relief of partition of the disputed
property. Obviously he could grant such relief only when he was satisfied that suit
was maintainable in respect of the partition. The impugned judgment shows that the
learned Single Judge has discussed the point relating to partition in his discussion on
issue No. 10. After taking-note of the objection raised on behalf of the appellants that
property cannot be partitioned and, therefore, no decree for partition can be passed,
the learned Single Judge held :-

Page No. 3 of 8
"Considering the area of the plot and the shares of each of the co-owners, prima
facie it cannot be determined now that the property is not capable of partition." He has
also rejected the contention raised on behalf of the appellants that in view of Pacca
houses having been constructed on the disputed plot, it was - not possible to partition the
A property. The learned Single Judge held that in absence of evidence t

show that the construction was made with approval of the owner and the Building
Control Authority, such a construction could be ordered to be demolished by the
concerned authorities.

In view of the above discussion the learned Single Judge ultimately passed the following
order :

"In these circumstances 1 will pass a preliminary decree for partition of the plot in suit in
accordance with the specified shares by metes and bounds ........................ ..
...... ...... ... ... ....... ...... ... ...... ....... ... .

I, appoint.. Mr.. Abdul . Matin, . Advocate as Commissioner for taking accounts, partition
of the property and assessing the market value of the property on the date of filing the
suit."

Further order with regard to partition will obviously be passed in the light of the
Commissioner's report after the same has been received by the learned Single Judge.
Thus,-it could not be argued that no finding has been recorded on the amended issue No.
5. In our opinion this issue has been correctly decided by the learned Single Judge.,

The next argument of the learned counsel for the appellant centered round misjoinder of
the defendants and multifariousness of causes of 'action. It was submitted by him that not
only the act of occupying the plot by each defendant was independent of any other
defendant's similar act but also all the defendants held possession of the specific portions
of the said plot in their individual capacity and, therefore, they having no community of
interest in the disputed property could not be lumped together in the same suit nor could
they be proceeded against jointly. It was further . averred by the learned counsel that the
suit suffered from multifariousness as combining of the relief relating to partition of the
disputed plot with other reliefs with regard to possession and mesne profits militates
against Order 11, rules 4, C. P. C.

As provided in Order I, rule 3, C. P. C., such persons can be joined as defendants, against
whom any right to relief in respect of or arising out of the same act or transaction or
series of acts or transactions is alleged to B exist, whether jointly, severally or in the
alternative, where if separate suits were brought against them, common questions of law
or fact would arise. Iii is to be seen if in the instant case the defendants have been joined
in accordance with the principle spelt out in the above provision of law. In this
connection first all reference may be made to the evidence of Muhammad Unis, one of
the plaintiffs. He has stated in his evidence that all the defendants hail from the same
brotherhood (baeadari) and had occupied the disputed plot at one and the same time. It .
is also in his evidence that defendant Muhammad Ismail had filed representative suit on
behalf of the defendants in respect of the disputed plot challenging the auction in which
they had purchased the plot. However, the said suit as well as the appeals arising
therefrom were dismissed. , Although. the defendant. Muhammad Ismail has evaded
giving a straight reply to the question if he had filed suit in respect of the disputed plot as
an attorney of other defendants he stands exposed by a copy of the power-of-attorney
produced by him which clearly shows that he was authorized by other defendants to
pursue the litigations on their behalf. The defendants' another witness Allahwala has
however candidly admitted that all the defendants occupied the disputed plot at a time.
According to him even a majority of the defendants belong to the same caste. Thus his
evidence lends direct support to the plaintiffs' case inasmuch as that the action of
occupying the disputed plot by all the defendants was joint, as they belong to the same
caste.

Page No. 4 of 8
From the above evidence we are led to believe that the defendants who are from the same
Biradari have not only occupied the disputed plot jointly but also have joined hands in
fighting legal battles in respect thereof together. Therefore, we are of the view that they
have been rightly joined C as defendants. At this stage we would like to refer to the
argument raised on behalf of the defendants that as some of them had purchased the
plaintiff Abdul Qadir's share in the plot the reliefs of possession and mesne profits sought
by the plaintiffs cannot be enforced against them and as such they should have been
dropped or else their joinder was unlawful. Undoubtedly some of the defendants have
purchased the share of plaintiff Abdul Qadir in the plot and have .thereby beecome
owners. For that reason o they could even be mentioned in the column of the plaintiffs
but as has been rightly observed by the learned Single Judge that no person can be joined
as plaintiff without his consent. There is no evidence to show that after. they purchased
the- share of plot belonging to plaintiff Abdul Qadir, their inerest as to possession of the
plot was restricted only to the purchased portion of the plot. Even if it may be so, still the
plaintiffs have right •o enforce the relief with regard to partition of the plot against them:
Consequently their joinder as defendants was riot unjustified and for' the said reason they
could not even be dropped.

At this stage we may refer to the case-law cited at the bar. Reliance has been placed on
three cases of Indian jurisdiction. The first in the series is reported as Laxmi Narayan v.
Ramratan (A I R 1924 Nag. 55). In this case, in the suit for ejectment against several
defendants who set up titles to different parts of a single plot of land, the view taken was
that there was only one cause of action and not several distinct and separate causes of
action and as such the plaintiff was entitled to the recovery of possession of his land as a
whole and not in fragments and it was a matter of indifference to him upon what grounds
the different persons in possession might seek to justify the wrongful dispossession of
what was his.

In the other case reported as Rao Bahadur v. Ranganatham Chettlar (A I R 1942 Mad.
334) it was held "The tendency of the later decisions both in England and in this country
based on more or less similar provisions is to construe them liberally, and I think it may
safely be stated, as a general rule, that where substantial common questions of fact are
involved in different claims against different parties, their joinder in one suit will not be
regarded as multifarious."

The third Indian case on the same point is of Anukul Chandra v. Bengal Province (A I R
1947 Cal: 374) wherein it was held

"It is now well settled that having regard to the provisions of Order 1, rule 2 when
common questions of law and fact are involved a suit impleading several defendants will
not of multifarious only because the plaintiff's causes of action against the several
defendants he has joined are different."

In the Pakistani case reported as Michal Assely v. Abdul Sattar and Bros. (P L D 1960 (W.
P.) Kar. 346), Qadeeruddin Ahmed, J. had expressed his views as under :
"Counsel for the defendent contended that these two causes of action could not be joined
in one suit. These causes of action have arisen out of one contract, Exh. 7. If two suits
had been instituted for the two claims, common questions of law and fact would have
arisen in terms of Order I, rule 1, C. P. C. There is nothing in Order II, rule 3, C. P. C.
against joining such causes of action."

In view of the above authorities since same questions of law and fact would arise if
separate suits were filed against the defendants in the instant, case, joinder of parties as
well as causes of action is in order and the objection of the defendants in this behalf is
without force.

It was also contended on behalf of the defendants that combining of the relief of partition
with other two reliefs regarding possession and mesne profits was in contravention of
Order 11, rule 4, C. P. C. and as such illegal. Of course the said provision of law does not
permit without leave of the court any cause of action to be joined with the suit for
recovery of possession of immovable property excepting the claim for mesne. profits or
damages. But in the instant case it is an admitted position that the plaintiff had moved for

Page No. 5 of 8
amendment of the plaint, which was allowed and accordingly the relief with regard to
partition was joined with other reliefs with permission of the Court. Thus, the lacuna in
this regard was rectified and the objection in this respect ceased to have any force.

The next contention of the learned counsel for the appellants was that since the appellants
were in possession of the disputed plot from prior to its transfer to the, plaintiffs, they
were not only entitled to notice under section 30 of Displaced Persons (Compensation
and Rehabilitation) Act, 1958 but also could not be ejected from the said plot except by
an order of the Rent Controller having jurisdiction passed in rent proceedings instituted
for that purpose. In reply to the above argument, the plaintiffs' Advocate submitted that
the premises in dispute was neither a house nor a shop but merely a building site and,
therefore, section 30 referred to above was inapplicable and the Rent Controller had no
jurisdiction in the case. Obviously section 30 would be attracted if two conditions are
satisfied : namely, I first that the premises in question is a house or shop and second that
the defendants in possession though occupying the plot unauthorizedly have paid the rent
and other public dues in respect of the said plot. In this connection reference may be
made to the following authorities.

According to the dictum laid down in the case of Ayoob and another v. Masjid-e-Noman
(1973 S C M R 604), the protection under section 30 of the Displaced Persons
(Compensation and Rehabilitation) Act, 1958 is extended to a person who has occupied
`house' or `shop' and not building site, authorizedly.

The above case of Supreme Court has however been distinguished in the case of
Muhammad Moosa and 2 others v. Shabir Ahmed and another (1984 C L C 3227)
wherein it was held :

"No doubt the premises have been transferred to the respondents as open plots by the
Rehabilitation Authorities but constructions have been raised thereon as early as 59,'60,
and they were being used for commercial and residential purposes at the time of transfer.
Thus, the case would fall within purview of section 30."

In the same case the learned Single Judge has also discussed the evolutionary changes
that the word "possession" used in section 30 has undergone. According to him the latest
definition includes even unauthorized possession provided that the rent and other public
dues in respect of the house or shop have been paid by the occupant from the date of his
occupation.

In Mst. Safdar Bano and 4 others v. Inamul Haq and 2 others (1984 C L C 2888) the
learned Single Judge of this Court expressed his views as under

"Section 30 of the said Act applies to house, shop, industrial concern, cinema house, or
printing press. It does not apply to open plot of land. Thus, the appellant could not claim
to be a statutory tenant of the plot in question under section 30 of the Said Act, nor any
notice under section 30 was necessary for taking action against. him for his eviction from
the plot."

In Subedar Muhammad Afzal v. Syed Nafis Ahmed and others (P L D 1962 (W. .P.) La11.
45) it was held .

"Section 30 of the Act extends protection to a person who is 'in possession of any evacuee
house or shop or has been declared on or before the 20th day of December, 1958, by a
Custodian to have tenancy rights from a date prior to the 14th day of August, 1947 in any
industrial concern, evacuee house or printing press, which is transferred to any other
person under the provisions of this Act . . . . . The case of Mistri Muhammad Sharif does
not fall under any of the categories mentioned in section 30, as his tenancy rights are in
respect of the site alone. He is not a tenant of the industrial concern known as the A.
C.Engineering Works. It is clear, therefore, that Mistri Muhammad Sarif is not protected
by section 30 of the Act."

>The law laid down in the above authorities is that protection under' section 30,
Displaced Persons (Compensation and Rehabilitation) Act, 1958 is not available in case

Page No. 6 of 8
of open plot or building site. In the Sind case of Muhammad Moosa it has however been
clarified that the benefit of above section is extended even in respect of building site or
open plot if any structures even raised by the unauthorized occupants were in existence at
the time of transfer of such building site or open plot. It is also held in the said case that
even unauthorized occupants of the plot or building site in question can qualify for the
benefit of section 30 hereinabove provided they have cleared rent and other public dues
in respect of the premises in their possession. Applying the above authorities it has to be
examined as to what was the factual position of the defendants vis-a-vis the premises in
their possession at the time of its transfer to the plaintiffs.

According to plaintiff Muhammad Unis the premises transferred to them was a plot
which was vacant at the time of its transfer to them. The P. T. D. produced by him also
shows that it was an open site. On the other hand the case of the defendants, as is clear
from the evidence of Muhammad Ismail, is that the defendants occupied the plot in 1947
or 1948 and that they had constructed hutments thereon. According to defendant
Allahwalla, they had constructed Pacca houses. The defendants' witness, Nasiruddin has
stated in his evidence that the defendants have been in possession of the plot since 1948.
Reference may also be made to the observations made in the judgment, dated 26-2-1966
of the learned Additional District Judge, Karachi who had decided appeal arising from
previous litigation between the parties.

The learned Additional District Judge had made the following observations :

"At the request of the learned counsel for the parties, the site was inspected in their
presence. On inspection it was found that there are hutments (Jhugis) on the plot in
question, mostly made of mats, poles and mudplaster . . . . . site inspection shows that
there are only two plots which have such poor temporary construction which have spoiled
the beauty of other buildings in the locality. This haphazard and irregular construction on
the plots does not fall within the definition of the clause cited by the learned counsel for
the appellants. It is all temporary structure and they have put no permanent building on
the plot."

Two things are clear from the judgment of the learned Additional District Judge namely,
first that when the plot in dispute was purchased by the respondents in open auction, the
appellants were in occupation of the same, and second that the appellants had raised
Katcha constructions on the said plot. It would appear that the said judgment was
delivered in the appeal filed by the appellants from the judgment of the civil Court
dismissing their suit in which they had challenged the auction under which the
respondents had purchased the disputed plot. It would also appear that like the appellants'
suit challenging the auction of the disputed plot, the two appeals first before the District
Court and second before High Court were also dismissed.

After considering the evidence led by both the parties and the observations of the learned
Additional District Judge referred to above, we have come to the conclusion that at the
time of transfer of the disputed plot in favour of the respondents, the appellants were
already in possession of the same and had even raised Katcha constructions thereon.
There is however nothing to show that the appellants had paid rent, and other public dues
in respect of the premises in their possession. Accordingly even if the authority laid down
in the Sited case of Muhammadl Moosa referred to above is deemed to be applicable in
the instant case, yet section 30 cannot be invoked by the appellants in their defence.
Consequently their argument that they could not be ejected except by an order of Rent
Controller is without any substance.

Lastly the learned counsel for the appellants has taken serious exception to the finding
arrived at by the learned Single Judge on the question of payment of court-fee. According
to him the court-fee paid by the plaintiffs was grossly inadequate, as instead of paying the
court-fee on the market value of the disputed plot at the time of filing the suit, they have
paid the fee on the auction price paid by them nearly a decade ago. The learned counsel
also attacked the deferment of payment of deficient court-fee as ordered by the learned
Single Judge. In support of his contention he placed reliance on the case reported as Amir
All v. Gul Muhammad (P L D 1968 Pesh. 106), wherein the trial Court's direction to
make good deficiency in court-fee after final disposal of suit was held to be without

Page No. 7 of 8
jurisdiction as the Court became functus officio after disposal of the case and, therefore,
could not continue process of adjudication in procedural matters of the suit.

It would appear that in the above-reported case the deficiency in court fee was required to
be made up after final disposal of the case. But that is not the case here. In the instant
case the learned Single Judge has passed only a preliminary decree, entrusting the job of
computing the market value of the disputed property as it obtained at the time of
institution of the suit to the Commissioner appointed for the purpose. This shows that
further order with regard to payment of deficient courtfee would be made by the trial
Court in the light of the Commissioner's report at the time of final disposal of the case.
Such order could be made as with passing of preliminary decree the suit has not
terminated but is said to be still pending. In this connection reference may be made to
Muhammad Latif v. Muhammad Hafiz (P L D 1954 F C 184), wherein it was held:

F`A partition suit in which only a preliminary decree has been passed is still a pending
suit and the rights of the parties have to be adjusted at the time of the final decree."

Thus, since the case is said tp be still pending the learned trial Judge could make
appropriate order during pendency of the case with regard to payment of the deficient
court-fee. The learned counsel's objection on the question of payment of court-fee is also
without force.

In view of the above discussion, the appeal has no merit and, therefore,

it must fail. Accordingly we dismiss the appeal with no order as to costs.

A. A. Appeal dismissed.

Page No. 8 of 8
1983 S C M R 316 (1)

Present : Aslam Riaz Hussain and Nasim Hasan Shah, JJ

ASLAM INDUSTRIES LTD., KHANPUR-Petitioner

versus

PAKISTAN EDIBLE CORPORATION AND OTHERS-Respondents

Civil Petition No. 798 of 1982, decided on 16th October, 1982.

(On appeal from the judgment, dated 18th September, 1982 of the Lahore High Court in
Civil Revision No. 119/82/BWP)

Constitution of Pakistan (1973)---

--Art. 185 (3) and Court Fees Act (VII of 1870), S. 17, Sched. I Art. I as substituted by
Punjab Finance Act, 1973--Leave to appeal Contention that S. 17 of Court Fees Act is
subject to provisions of Art. 1 of Sched I of Act-Contention raised requires further
consideration-Leave to appeal granted.

Sheikh Inayat Ali, Advocate Supreme Court and Sh. Masood Akhtar,
Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing : 16th October, 1982.

ORDER

NASIM HASAN SHAH, J.-The contention raised is that section 17 of the Court Fees
Act, 1870 is subject to the provisions of the proviso to Article 1 of Schedule I of the
Court Fees Act, as substituted by section 8 of the Punjab Finance Act, 1973, and,
therefore, the demand of the additional court-fee of Rs. 15,000 was unwarranted
inasmuch as the court-fee of Rs. 15,000 had already been paid on the suit.

The contention raised requires further consideration. Leave is, accordingly, granted.

Security in the sum of Rs. 2,000 within one month.

The appeal to be made ready on the present record with liberty to the parties to add
further documents, if any.

The payment of additional court-fee stayed meanwhile.

M. Y. H. Leave granted.

Page No. 1 of 1
1980 C L C 773

[Karachi]

Before Abdul Hayee kureshi and Sajjad Ali Shah, JJ

Haji HASHIM & Co., KARACHI-Appellant


versus
INDUS INSURANCE Co. LTD.-Respondents

Letters Patent Appeal No. 100 of 1970, decided on 24th September 1979.

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

--- S. 17 and Civil Procedure Code (V of 1908), S. 151-Excess court-fee paid under S. 17,
Court Fees Act--Refundable under S. 151, C. P. C.-Inherent powers of Court under S.
151, C. P. C., held, can be invoked to make order for refund.-[Court-feel].

Hirabai Cowasji v. Faqir Muhammad A I R 1927 Sind 190 ; Chidambaram Chettiar's case
A I R 1934 Mad. 566; Province of Madras v. Kalavakuru A 1 R 1949 Mad. 895 and
Vishnuprasad Modi v. Narandas Mohanlal Modi A I R 1950 Born. 4 ref.

S. Inayat Ali for Appellant.

Usman Ghani Rashid, A.-G. for Respondent.

Date of hearing : 24th September 1979.

JUDGMENT

SAJJAD ALI SHAH, J.--This Letters Patent Appeal has been filed against the order of
the learned Single Judge of this Court in Suit No. 204 of 1969, whereby prayer in the
application under section 151, C. P. C. for refund of excess court-fees has been rejected.

Brief facts are that appellants filed a suit for recovery of Rs. 1,32,960 and for the
purposes of jurisdiction and court-fees the suit was valued as under :--

(a) for recovery of damages at Rs. 82,800;

(b) for recovery of price paid, Rs. 48,000;

(c) for recovery of interest, at Rs. 2,160.

The appellants inadvertently valued the reliefs for recovery of amount mentioned above
separately for the purposes of court-fees and paid court fees in the total sum of Rs. 4,025
whereas under the .theme of section 17 of the Court Fees Act, 1970. the appellants were
liable to pay court-fees on the aggregate of Rs. 1,32,960 which comes to Rs. 2.455. After
realizing excess in payment of court-fees, the appellants made an application under the
section 151, C. P. C. to the Court for refund of Rs. 1,570 which was paid erroneously in
excess. The learned Single Judge passed order on this application .which is reproduced as
under :--

"There is no provision in the Court Fees .pct for refund of the amount as conceded by the
learned counsel, I art, afraid section 151, C. P. C. cannot be invoked. Application is
rejected."

There is no dispute about the fact that Court Fees Act, 1870, specifically allowed refund
under sections 13, 14 and 15. Section 13 relates to refund of fee paid on memorandum of
appeal, section 14 relates to refund of fee on application for review of judgment and
section 15 relates to refund where s or modifies its former decision on ground of mistake.
in the Court reverse instant case section 17 of Court Fees Act, which relates to
multifarious suits and it provides that where a suit embraces two or more distinct would

Page No. 1 of 2
apply the plaint or memorandum of appeal shall be chargeable with the subjects, mount
of the fees to which the plaints or memorandum of appeal, aggregate a separately each of
such subjects, would be liable under this in suits embracing Act. There is no specific
provision in it for refund of excess court-fees paid erroneously. The question arises
whether section 151, C. P. C. can be invoked in the circumstances as stated above when
the Court Fees Act does not provide in section 17 for refund of excess court-fees paid
under a bona fide mistake. For this purpose the scope of section 151, C. P. C. is to be con-
sidered. Section 151 of the Civil Procedure Code envisages inherent powers of the Court
and provides that nothing in the Code shall be deemed to limit or otherwise affect the
inherent powers of the Court to make such orders as may be necessary for the ends of
justice or to prevent abuse of the process of Court. There is no dispute about the fact that
under this section of the Code the Court can pass such orders as it thinks necessary to
render justice to all the parties before it which are necessary for the ends of justice or to
prevent abuse of the process of Court. In Hirabai Cowasji v. Faqir Muhammad (A I R
1927 Sind 190) it was held that a Court has jurisdiction to order the issue of a certificate
to enable the plaintiff to apply to the revenue authorities to obtain a refund of the excess
court fee paid under a bona fide mistake. Subsequently in the case of Chindambaram
Chittiar (A I R 1934 Mad. 566) it was held that the Court can order a refund (1) where
Court Fee Act applies, (2) where there is an excess payment by mistake or (A I R 1949
Mad. 895) where on account of mistake of a Court a party has been compelled to pay
court-fees either wholly or in Part. Outside these cases tl:e Court has no authority to
direct a refund. Applicability of section 151, C, P. C. in such cases to order refund of
excess court-fees in the cases not provided under sections 13, 14 and t5 of the Fees Act is
reiterated in the case Province of Madras v. Kalavakuru (3) Court wherein further the
view taken in the case of Chindambaram Chettinr has been whet . Subsequently in the
case Yishnupracad Modi v. Naranda., Mohanlal followed 14 and Modi (A I R 1950 Born.
4) it was held that even in cases not covered by sections 13,

15 of Court Fees Act, the Court can under section 151, C. P. C. order refund of court-fees
paid in excess either by mistake, inadvertence or oversight. It is therefore obvious that
this view has been consistently taken by the Courts that apart from the cases where the
Court Fees Act provides specifically for refund of excess court-fees under sections 13, 14
and 15, the Court is competent under section 151, C. P. C. to order refund in cases (1)
where Court Fees Act applies, (2) where there is an excess payment by mistake or' (3)
where on account of mistake of a Court a party has seen compelled to pay court-fees
either wholly or in part.

In the instant case also excess court-fee has been paid under a bona fide mistake, as
section 17 of the said Act clearly prescribes as to how the amount of the court-fees is to
be computed and due to inadvertence excess court-fee has been paid which ought to be
returned to the party concerned. It would not serve the ends of justice if it is said that
since in section 17 of the Court Fees Act there is no specific provision for refund, the
excess court-fees cannot be ordered by the Court to be refunded. The present case is also
covered) under category second providing for cases where there is an excess payments by
mistake as held in A I R 1934 Mad. 566 and the inherent powers of the Courts under
section 151 can be invoked to rectify this bona fide mistake to make an order for refund.
It appears that the rulings mentioned above which support this view of the matter were
not brought to the notice of the Court. It would be fair to give an opportunity to the
appellant to cite the case-law in support of the submission made on his behalf, before the
learned Single Judge. We therefore, set aside the impugned order and remand the case for
decision of the application under section 151, C. P. C. in accordance with law.

There will be no order as to costs.


M. Y. M. Petition dismissed.

Page No. 2 of 2
P L D 1980 Karachi 492

Before Tanzilur Rehman, J

YOUSAF A. MITHA AND 3 OTHERS-Plaintiff's versus

ABOO BAKER AND 2 o1ms--Defendants

Suit No. 766 of 1979, decided on 22nd April 1980.

(a) Civil Procedure Code (V of 1M~

O. VII, r. 11--Rejection of plaint--Consideration of application under O. VII, r. 11--Court


for such purpose, held, to confine itself to averments in plaint: -[Plaint].

M. Moose v. Mahomed P L D 1954 Sind 70 and Muhammad 1qbal v. Ahmad Johan


Begum P L D 1970 Kar. 548 ref.

(b) Court Fens Ad (VII of 1870)

---• S. 7 (iv) (c) & (d) read with Suits Valuation Act (VII of 1887), S. 8--Valuation fixed
for court-fee-To be valued for purpose of jurisdiction as well--Relief sought for by
plaintiff even if falling within S. 7(iv) (c) & (d) of Court Fees Act 1870, plaintiff in.
view of S. 8, Suits Valuation Act, 1887, held, bound to fix same value for purposes of
court-fee as well.

Muhammad Aslam Khan v. Muhammad Hussain and others P L D 1959 Pesh. 101 ref.

(c) Court Fees Act (VII of 1870)

S. 7 (iv)(c) & Art. 17(iii) (1) & (2)-Defendants shareholders in alleged violation of an
article of memo. of association of Company entering into agreement with defendant
No. 3 for sale of their shares-Plaintiff on refusal of defendants to cancel a4reement
filing suit praying for ration of such agreement Was illegal and for injunction
restraining defendants from enforcing such agreement Suit, held, a suit for declaration
with consequential relief and therefore covered by S. 7 (iv) and not Art. 17(iii) of
Second Schedule

Muhammad Siddiq v. Haji Ahmed & Co. P L D 1967 Kar. 468 ; Haji Gul v. Mst. Aisha P
L D 1973 Kar. 653 ; Muhammad Siddiq v. Haji Ahmed & Co. P L D 1967 Kar. 498 ;
Lakhumal Deepchand and another v. Deepchand Tolaram and others A I R 1937 Sind
241 and P L D 1971 Kar. 682 ref.

(d) Constitution of Pakistan (1973)

Art. 189--Stay granted by Supreme Court against decision of High Court in leave to
appeal proceedings-Law declared by High Court binding unless decision set aside by
Supreme Court.-[Precedent].

Muhammad Ismail v. State P L D 1974 Kar. 29 and Ghulam Jilani v. Federal Government
P L D 1975 Lab. 65 fol.

General Abdul Hamid's case P L D 1974 Lab. 7 ref. (e) Court Fees Act (VII of 1870)-

---- S. 3-Levy of court-fees-Suits instituted in Sind High Court on original side-As things
stand presently no court-fee, held, payable on such suits and plaintiff not to suffer
consequences even if Supreme Court holds otherwise or law amended retrospectively.-
[Interpretation of statutes].

Razzak v. Usman P. L D 1975 Kar. 944 fol.

Nizam Ahmed for Plaintiffs.

Page No. 1 of 6
Abdul Monem Khan for Defendant No. 3.

S. Sarfraz Ahmed, Asstt. A: G. on Court Nortice.

ORDER

Plaintiffs Nos. 1 to 4 and defendants Nos. 1 and 2 are the shareholders in Rex Talkies
Limited, a private Limited Company, registered under the Companies Act, 1913. It
appears from the statements made in the plaint that the defendants Nos. 1 and 2 on or
about 29th November 1978, without obtaining prior consent from the plaintiffs, and in
the alleged violation of Article 16 of Association of the Company, entered into an
agreement with defendant No. 3 for the sale of their shares held in the Company, as per
agreement dated 29th November, 1978 annexed with the plaint. When the plaintiffs
came to know of the said agreement between defendants Nos. 1 and 2 on the one hand
and defendant No. 3 on the other, the plaintiffs objected to the said agreement and
called upon the defendants Nos. 1 and 2 that if they intended to sell their shares, the
plaintiffs were ready to purchase then at the value proposed by defendant No. 3. The
plaintiffs also called upon the defendants Nos. 1 and 2 to cancel the alleged agreement
and return the money received by them from defendant No. 3. The said request of the
plaintiffs having not been accepted by the defendants they chose to file the above suit
wherein it was, inter alia alleged that the said agreement was neither legal nor binding
on the. plaintiffs. It was further asserted that the defendants were liable to be restrained
by a permanent injunction from enforcing, in any manner, the alleged agreement.

2. The plaintiffs valued the above suit at Rs. 51,000 for the purpose of jurisdiction and
Rs. 200 for declaration and for Rs. 200 for permanent injunction and for Rs. 200 for
mandatory injunction. It was also stated in para. 10 of the plaint that a]though no court-
fee was payable on this suit. instituted on the original side of this Court, the court-fee as
provided under the Court Pees Act, has been affixed, without prejudice to the said
contention. The plaintiffs,- accordingly, paid a sum of Rs. 45 as courtfees. The
plaintiffs, however, undertook to pay, if any additional courtfee was found to be so
payable by the plaintiffs. An objection to the payment of court-fee of Rs. 45 only was
raised by the Office and a reference in this respect was made to the Courts On 15-9-
1979, it was observed by my learned brother, Zaffar Hussain Mirza, J. that "the plaint
be admitted with the court-fee already paid subject to all just exceptions at the trial".

3. The defendant No. 3 has now filed an application under Order VII, rule II read with
section 151, C. P. C. alteging that the reliefs, as claimed, have been under valued by the
plaintiffs, and that the plaint has been written on paper insufficiently stamped. It was,
therefore, prayed that the plaintiffs be required to correct the valuation and pay the
appropriate court-fees, and if they fail to do so within the time fixed by this Court, the
plaint may be rejected. In the affidavit filed in support of the said application, it was
stated by the defendant No. 3 that the agreement being subject-matter of the suit relates
to the transfer of shares for Rs. 67,00,000. Annexed with this affidavit, the defendant
No. 3 also filed particulars of shares held by the plaintiffs. In the counter-affidavit filed
on behalf of the plaintiffs, it was submitted that the reliefs claimed by the plaintiffs, in
the above suit, were properly valued and that the proper court-fees have been paid by
the plaintiffs. I have heard the counsel for the plaintiffs and the defendant No. 3 on the
above application.

4. It seems to be settled law that for consideration of an application under Order VII, rule
11, C. P. C. the Court is to confine itself to the averments made in the plaint. If any
authority is needed for the same i may be found in P L D 1954 Sind 70, and P L D 1970
Kar. 548. As such, I keep the particulars of shares filed by the defendant No. 3
alongwith his affidavit outside my purview for the purpose of deciding this application
made under Order VII, rule 11. C. P. C. Yet, I will be examining the contents of the
plaint and the documents which have been referred to in the plaint filed alongwith it, in
order to consider and appreciate the question of the proper valuation of the suit and
payment of court-fee thereon, in accordance with the provisions of the Court Fees Act,
1870 and the suits valuation Act, 1887.

Page No. 2 of 6
5. The plaintiffs have sought the following reliefs:-

"(a) Declaration that the agreement dated 29th November 1978, between the defendants I
and 2 and 3 is without any lawful authority or consent of the plaintiff and against the
provisions of Article 16 of Articles of Association of the Company and is thus neither
legal nor binding on the plaintiffs;

(b) to grant permanent injunction restraining the defendants and or any person acting on
their behalf from selling and/or transferring and/or negotiating the sale and/or handing
over the possession of the shares and/or properties of the Company by the defendants in
violation of Article 16 of the Articles of Association of the Company, to grant
mandatory injunction against the defendants requiring the defendants Nos. I and 2 to
transfer their shares in the Company in favour of the plaintiffs in accordance with
Article 16 of the Article of Association-of the Company."

6. As it would appear from the reliefs claimed, the subject-matter of dispute is the
agreement dated 29th November, 1978 between defendants Nos. 1 and 2 as the sellers
and defendant No. 3 as the buyer. The plaintiffs are seeking not on a declaration
simpliciter that the said agreement is against the provisions of Article 16 of the Articles
of Association of the Company and, thus, neither legal nor binding on the plaintiffs, but
have also prayed for permanent injunction restraining the defendant from selling or
transferring and handing over the possession of the said shares by the defendants.
Additionally, the plaintiffs have also prayed for the grant of a mandatory injunction
against the defendants requiring the defendants Nos. 1 and 2 to transfer their shares in
the Company in favour of the plaintiffs, in accordance with Article 16 of the Article of
Association of the Company. The bare reading of the reliefs claimed in the suit will
show that the plaintiffs are not only seeking declaration but are also seeking
consequential reliefs by way of permanent as well as mandatory injunction, involving
transfer of movable property worth Rs. 67,00,000 in their favour.

7. Contentions of the learned counsel for the defendant No. 3 are two-fold. His first
contention is that plaintiffs have valued the suit for purpose of jurisdiction at Rs.
51,000 but for purpose of court-fee the suit has been valued, in ail at Rs. 600, that is Rs.
200 for each of the three reliefs whereas under section 8 of the Suit Valuation Act,
1887, the value of suit for purpose of court-fee and jurisdiction is to be the same. His
second contention is that the suit has not been properly valued and court-fee paid
thereon is insufficient.

8. As regards the first contention that the valuation for purpose of jurisdiction and court-
fee must be the same, section .8 of the Suits Valuation Act, 1887 is relevant which is
reproduced below:.

"court-fee value and jurisdictional value to be the same in certain suits wherein suits
other than these referred to in the Court Fees Act, 1870, section 7, paragraph (v), (vi)
and (ix) and paragraph (x) clause (d), court-fees are paryable ad valorem under the
Court Fees Act, 1870, the value as determinable for the computation of court fees and
the value for purpose of jurisdiction shall be the same,"

As would appear, section 8 of the Suits Valuation Act, 1887, is applicable to all such suits
in which ad valorem court-fee is payable other than those specified in the section itself.
The valuation fixed for court-fee should be the value for purpose of jurisdiction also.
Even if the reliefs sought For by the plaintiffs fell within section 7(iv) (c) and (d) of the
Court Fees Act, the plaintiffs in view of the said section 8 of the Suits Valuation Act,
1887 having already fixed the value of the suit for purpose of jurisdiction, were bound
to fix the same value for the purpose of court-fees as well it cannot and, in fact, was not
contended by the plaintiffs that they ca value the relief for purpose of jurisdiction at one
figure and for the purpose of court-fee at another. In this connection, reliance may be
placed on decision in Mohammad Aslam Khan v. Mohammad Hussain and others (1)
As such the first contention of the learned counsel for the defendant No. 3 is upheld.

9. The second contention that the reliefs sought for in the plaint have not been properly
valued and proper court-fees have not been paid, finds

Page No. 3 of 6
(1) P L D 1959 Pesh. 101
support from the contents of the agreement dated 29-11-1978 (Annex `B' to the plaint).
The said agreement, inter alia, provides that defendant: Nos. I and 2, being the
registered shareholders of 5,000 shares of the face value of Rs. 5,00,000 (five lacs)
have agreed to sell, transfer and assign the said 5,000 shares to defendant No. 3 for a
total consideration of Rs. 67,00,OOC (sixty-seven lacs) out of which a sum of Rs.
13,00,000 has already been paid by defendant No. 3 to defendants Nos- 1 and 2 and the
balance of Rs. 54,00,000 has been agreed to be paid on 31-3-1979. Upon the plain
reading of this agreement and in the light of the reliefs sought for by the plaintiffs, as
already reproduced from the plaint, it is apparent that the suit for the purpose of court-
fee has been arbitrarily valued. In support of this view the learned counsel for the
defendant No. 3 has put his reliance on the cases of Mohammad Siddig v. Haji Ahmed
& Co. (1) and Haji Gul v. Mst. Aisha (2). In the first case, Mohammad Siddiq v. Haji
Ahmed & Co. a Division Bench of the High Court of West Pakistan, Karachi Bench
following the Full Bench ruling of the J. C. Court, Sind, in the. case of Lakhumal
Deepchand and another v. Deepchand Tolaram and others (3) held as follows:-

"It seems to us' that ordinarily in suits falling under section 7(iv) (c) a plaintiff is entitled
to put his own valuation but in case the Court comes to the conclusion that it is
arbitrarily fixed it can put its own valuation and ask the plaintiff to pay court-fee on the
valuation. We are in respectful agreement with the view of Davis, J.C. that absence of
the rule under section 9 of the Suits Valuation Act is no bar to the exercise of the power
under Order VII, rule 11, C. P. C. and that the question as to what is proper valuation
depends upon the circumstances of each suit and the judicial decision of the Court. To
hold otherwise would mean to give unlimited power to litigants in drafting their prayers
so as to include or -exclude relief with a view to confer jurisdiction on the Court to try
the suit."

In the other case of Haji Gul v. Mst. Aisha a Single Judge of this Court observed as
follows:-

"The first contention of Mr. Niazi, is that as the original suit was only for declaration that
the respondent was the full owner of the property and not for possession, the court-fee
on . the suit was governed by Article 17 (iii) of the. Second Schedule to the Court Fees
Act, which prescribes a fixed fee of Rs. 15. This contention is repelled on the short
ground that the suit filed by the respondent was not only for a declaration but also for
injunction. It was therefore clearly a suit for a declaration with consequential relief, as
held by a Full Bench of the said Chief Court in Lakhomal Deepchand and others (A I R
193 Sind 241), and therefore, fell under section 7(iv) and not Article 17(iii) of the
Second Schedule. A similar view was taken by a Division Bench of West Pakistan in
Mohammad Siddiq and others v. Haji; Ahmed & Company (P L D 1967 Kar. 468), and
by the Calcutta High Court in the case reported in A I R 1954 Cal. 34."

10. I may also refer to another decision of this Court reported in P L D 1971 Kar. 682. In
this case, a mandatory injunction had been sought in respect of property worth more
than Rs. 67,000. The plaintiff had valued his claim for injunction at Rs. 200 only. This
value was held as

(1) P L H 1967 Kar. 468 (2) P L D 1973 Kar. 653

(3) A I R 1937 Sind 241

having been fixed arbitrarily, and the plaintiff was ordered to be returned to the plaintiff
to be presented to the proper Court.

11. For the foregoing reasons, it is held on the basis of the reliefs sought by the plaintiffs
in respect of the said agreement (Annexure `A' toy the plaint) that it was not open to the
plaintiffs to put their own arbitrary valuation of the court-fees in the suit and that the
suit has been undervalued and court-fee insufficiently paid. I will, therefore, order the
plaintiffs to correct the valuation of the suit for the purposes of court-fees and
jurisdiction at Rs. 67,00,000 and to amend the plaint accordingly, within one month
from the date of this order.

Page No. 4 of 6
12. As to the payment of court-fees, the learned counsel for the plaintiffs, however,
invited my attention to a D.B ruling of this Court in the case of Razzak v. Usman (1).
and contended that as held in that case no court-fee was payable on suits filed on the
original side of this Court. The relevant observations appear at page 963 of the
judgment as below:

"I now turn to the question of court-fees on suits in this Court and, as I pointed out, they
fall under section 3 of the Court Fees Act, and the word `payable' in the first clause of
this section means payable under some provision of law. other than the Court-fees Act."

In reply, Syed Sarfraz Ahmed, the learned Assistant Advocate-General has argued that the
above judgment is not operative, for, it has been stayed by the Supreme Court. Mr.
Nizam Ahmed, the learned Advocate for the plaintiffs, though did not cite any authority
on this point on the day of hearing i.e. 17-4-80 but on 21-4-1980, came to my chamber
and placed his reliance reported in P L D 1974 Kar. 29 and P L D 1975 Lah 65. (I,
however, asked him to intimate the other side as well as the learned A. A.-G. about
these citations so that if they should cite some other authority, they may do so).

13. In the first case of Mohammad Ismail v. State (2) the judgment of a learned Single
Judge of this Court was followed by another learned Judge of this Court,
notwithstanding the plea that an appeal had been filed against the order and leave had
been granted by the Supreme court. The learned Single judge was, however, of the
view that although "a Single Bench decision of my learned brother is not binding on me
but I can certainly take note of it till such time that the judgment is set aside and that
their Lordships of .the Supreme Court do so decide I will of course legally and
obediently follow such judgment of the Supreme Court. On the other hand I am not
prepased to assume that simply because leave has been granted against a judgment that
judgment ceases to be good or necessarily wrong. We will accept the law as laid down
by the Supreme Court but until such law is laid down the mere grant of leave will not'
preclude me from referring such judgment and even following it to some extent or even
adopting the reasons on which the judgment of arty learned brother is based."

14. In the other case of Ghulam Jillanl v. Federal Government (3) an argument was
advanced in that case by the Deputy Attorney-General that against the judgment of the
Lahore High Court in General Abdul Hamid's

(1) P L D 1975 Kar. 944 (2) P L D 1974 Kar. 29


(3) P L D 1975 Lab. 65
case the Government had filed a petition for special leave to appeal before the Supreme
Court and that- the Supreme Court while granting special leave to. appeal had also
suspended the operation of the impugned order in .the meanwhile. According to the
Deputy Attorney-General, in that case, the order of the. Supreme Court suspending the
operation of the impugned order -meanwhile was binding upon Lahore High Court
under Article 189 of the Constitution as it amounted to a `law declared' by that Court.
The Division Bench of the Lahore High Court however observed as follows:--

"Thus, the expression "law declared" implies .that -the point decided by the Supreme
Court -is - a legal one and of such general or public importance `that it will occupy the
place of law for the land: It will be the final decision of the Court on that particular
point given after hearing the parties concerned. In other words it will be final
adjudication of that particular point and so far as that point is concerned, nothing
should remain pending before the Supreme Court after the declaration of that law."

15. 1 am, therefore, of the view .that even if stay, has been granted by the Supreme Court,
unless the D.$. decision of this Court (reported in P L D 1975 Kar. 944) is set aide by
the Supreme- Court, tire law laid down

therein is binding on me apart from the fact that the stay grant :d will anal inter partes in
that matter only.

Page No. 5 of 6
16. The upshot of. the above discussion is- that; if the situation was ,governed by the
Court Fetes Act 'this suit would be both undervalued and deficient in payment of court
fees:. But, as the things stand today n court-fees are; payable on suits filed on, the
original side of this Court. Needless to say that if the Supreme Court hold otherwise or
the law it amended retrosectively, the plaintiffs herein will suffer its consequences,
whatever that stay be. The application is disposed of accordingly.

K. M. -A. Application disposed of.

Page No. 6 of 6
P L D 1967 Dacca 203

Before K. M. Hasan and Abdus Subhan Choudhuri, JJ

TARACHAND MONDAL AND OTHERS-Appellants

Versus

HAZARI SHAIKH AND ANOTHER-Respondents

Civil Appeal No. 182 of 1961, decided on 17th March 1966.

(a) Specific Relief Act (I of 1877), S. 42-Declaratory suit by plaintiff in possession of


property that sale-deed executed by his benamidar not binding on him and praying further
that defendants be restrained from interfering with his possession-Payment of fixed court
fee as well as court fee for consequential relief prayed, viz. permanent
injunction-Sufficient-Court Fees Act (VII of 1870), S. 7(iv)(c) and Sch. 11, Art. 17(iii).

Joseph Lazarus v. Isha Khan A I R 1958 Pat. 108 held not applicable.

Kalipada Mondal and others v. Kali Charan Mondal and others A I R 1949 Cal. 204
distinguished.

Mst. Rupia v. Bhatu Mahton A I R 1944 Pat. 17 and Baibakilal Basak v. Iqbal Ahmed
Quraishi and another 17 D L R 119 ref.

(b) Transfer of Property Act (IV of 1882), S. 41-Provision intended for protection of
bona fide purchaser for value without notice-Failure to get original title-deed or even
inspect same-Indicates absence of bona fides.

Ruhul Islam for Appellants.

Md. Nurul Huq and Md. Yeasin for Respondents.

JUDGMENT

A. SUBHAN CHOUDHURI, J.-This appeal is at the instance of the defendants and it


arises out of a suit for declaration that the kabala executed by plaintiff No. 1, in favour of
the defendants is a void document and that the plaintiff No. 1 being a benamdar of
plaintiff No. 2, he had no right to sell the disputed lands to the defendants and that the
kabala executed by the plaintiff No. 1 in favour of the defendants is not binding on
plaintiff No. 2, being a void document so far as plaintiff No. 2 is concerned. There was
also a prayer for a permanent injunction upon the defendants restraining them from
getting the kabala registered and from entering upon the suit lands. .

2. Plaintiff No. 1 Mofizur Rahman Sheikh is a son of plaintiff No. 2 Hajari Sheikh. Their
case, briefly stated, is that they were formerly residents of village Mollapara in the
district of Nadia and have all along been in joint mess. During the last communal
disturbance plaintiff No. 2 exchange his properties in India with those of one Prionath
Biswas in Pakistan and after making such exchange the plaintiff No. 2 migrated to
Pakistan, while Prionath migrated to India. ' Plaintiff No. 2 took possession of Prionath's
properties left behind in Pakistan by virtue of the aforesaid exchange.

3. A Deed of Exchange was executed at the time of exchange of the properties but was
not registered at the time of its execution. Prionath died thereafter and his heirs executed
a Power, of Attorney in favour of plaintiff No. 2 who, in his return, executed three Powers
of Attorney in favour of all the heirs of Prionath. Plaintiff No. 1 had no property in India
and did not acquire any property in Pakistan, on the basis of any exchange with Prionath.
Plaintiff No. 2 executed some benami kabalas in the name of his sons in respect of the
properties obtained by him by way of exchange and no consideration passed under the
said kabalas, nor was possession delivered to his sons. The original kabalas remained
with plaintiff No. 2.

Page No. 1 of 10
4. Further case of the plaintiffs is that plaintiff No. -1 was suffering from fever, cough and
cold and defendant No. 4 Dr: Nurul Huq advised him to get his chest X-rayed and in
pursuance of that advice the latter went to Kushtia and got his chest X-rayed. Defendant
No. 4 took the thumb-impression of Plaintiff No. 1on the same plain papers and forms on
the pretext of procuring medicines at controlled price. Thereafter the defendants took
plaintiff No: 1 on 31-12-57 to the shop of defendant No. 2 Safatullah and forcibly took
his thumb impression on some stamp papers and plain papers. On the following morning
plaintiffs went to Alamdanga Police Station and got a C. D. entry made and thereafter
they went to Kushtia Police Station and lodged another information which was also
recorded in the General- Diary,

5. The plaintiffs further alleged that the defendants fabricated a kabala purported to have
been executed by plaintiff No. 1 in their favour in respect of the disputed lands with the
help of the thumb-impressions forcibly taken by them from plaintiff No. 1. As plaintiff
No. 1 has no property of his own, he is maintained by his father, 'the plaintiff. No. 2 and
he had no right to sell the disputed lands to the defendants.

6. All the defendants, four in number, filed a joint written statement and contested the
suit. Their case, in short, is that the disputed properties which comprise agricultural lands
and a homestead belonged to plaintiff No. 1 who contracted to sell the same to them and
in pursuance of that contract. On 15-9-1957, plaintiff No. 1 received a sum of Rs. 6,100
from the defendants and executed a bainanama in favour of the latter The balance of Rs.
1,900 out of the entire consideration of Rs. 8,000, was paid subsequently and plaintiff
No. 1 executed kabala in favour of the defendants. The defendants filed the kabala in the
office of the Registrar for registration and a case was started under section 7 of the
Registration Act in the Registration Office. 'The plaintiffs did not appear in the
registration office on the date fixed i.e., 18-3-58, whereupon an order for registration was
passed and accordingly the kabala was registered. The defendants contended that plaintiff
No. 2 did not make any exchange of the properties with Prionath and he did not get the
disputed lands on the basis of, any such exchange and that the story of the plaintiffs that
the defendant No. 4 medically treated the plaintiff No. 1 and obtained the
thumb-impressions of plaintiff No. 1 on plain papers or forms in untrue. The defendants
also denied the allegations that they took the thumb-impressions of plaintiff No. 1 on
some stamp papers and plain papers; they asserted that that plaintiff No. 1 himself applied
to the proper authorities in Chittagong for permit or income-tax clearance certificate for
the purpose of execution of the kabala in favour of the defendants and this permit was
received by post from the Income-tax Officer at Chittagong.

7. Defendants affirmed that plaintiff No. 1 himself purchased the disputed land from
Prionath along with many other properties and the plaintiff No. 2 made the sale as a
mukhtar of Prionath. Plaintiff No. 1 sold away many other properties to other persons out
of those he obtained by purchase from Prionath.

8. Defendants further asserted that they are, bona fide purchasers for value and the kabala
executed by plaintiff No. 1 in their favour is a genuine and valid document; that they got
possession of the entire disputed lands except the homestead standing on the disputed
land, and as regards the homestead the plaintiff No. 1 agreed to vacate it within a month
from the date of sale but subsequently he did not quit the homestead.

9. Upon the pleadings the following issues were established

"(1) Is the suit maintainable as framed?

(2) Has the plaintiff No. 2 any right, title and interest in the suit properties?

(3) Is the kabala executed by plaintiff No. 1 in favour of the defendants for the
suit properties void as alleged?

(4) Is the suit barred by the principles of estoppel?

Page No. 2 of 10
(5) Are the defendants bona fide purchaser for valuable consideration without any
notice of the claim of plaintiff No. 2 ?

(6) Are the plaintiffs in possession of all the suit properties ?

(7) What relief, if any, are the plaintiffs entitled to?"

10. The issue with regard to estoppel was not pressed and the trial Court decided it in
favour of the plaintiffs.

11. The learned Subordinate Judge after elaborate discussion of evidence on the point
held that the plaintiffs' case that the kabala Exh. A(4) was fabricated by the defendants
with the help of some stamp papers on which plaintiff No. 1's thumb-impression were
forcibly taken seemed to be false and the evidence of D. W. 2 Anukul Chandra
Chakraborty and D. W. 3 Manindra Nath Ghose that Mafizur Rahman gave his thumb-
impression on the bainanama Exh. C and the kabala Exh. A(4) seemed to be true, and
that, as such, the impugned kabala was not void; but he found that plaintiff No. 2 has his
alleged right, title and interest in the suit land. He further held that the defendants are not
bona fide purchasers for value without notice. On the point of possession his finding is
that the defendants are in possession of the disputed lands excepting the homestead. He
also concluded that the suit is not barred under section 42 of the Specific Relief Act and
that as such it was maintainable as framed. The learned Subordinate Judge accordingly
decreed the suit in part and declared, that the kabala in question is not binding on the
plaintiff No. 2.

12. Mr. Ruhul Islam, the learned Advocate appearing for the appellants has taken us
through' the records and we have also examined the records ourselves.

Plaintiffs examined six witnesses and the defendants five.

13. The first point urged by Mr. Islam is that the defendants having acquired valid title in
the suit lands by the kabala in question from the real owner in possession of the
properties the plaintiffs are not entitled to a decree. Two of the other points which he
sought to make out are of allied nature and involve common questions of fact and law
with the first point. Whose two points are that in the absence of materials to prove that
plaintiff No. 1 was benamdar of the plaintiffs No. 2, the plaintiffs cannot get a decree in
the suit and that in view of the findings of the trial Court that the plaintiffs are out of
possession with the exception only of the homestead. the suit is barred under section 42
of the Specific Relief Act and it is not maintainable without payment of ad valorem
court-fee.

14. The learned Subordinate Judge has virtually accepted the position that the bainanama.
Exh. C and the kabala Exh. A(4) were executed by plaintiff No. 1. This finding has not
been challenged by the other side, inasmuch as it is in favour of the defendants and no
cross-objection has been filed by the plaintiffs.

15. The question which we are required to consider in view of the arguments of the
learned Advocate for the appellants as referred to above, are whether the plaintiff No. 1
was the actual owner in possession of the disputed properties or he was a benamdar for
the plaintiff No. 2; whether the plaintiffs are out of possession of the disputed lands
except the homestead, whether the suit is hit by section 42 of the Specific Relief Act and
whether it is maintainable without payment of ad valorem court-fee.

16. P. W. 2 deposing as P. W. 1 has testified that the kabalas executed by him in favour of
his sons (including Exh. A(4) are benami transactions and he did not receive any
consideration for the same. Similar is the evidence of plaintiff No. 1 who has deposed as
P. W. 6 and stated that he has no property and his father executed a benami kabala in his
favour for which no consideration passed. His further evidence is that he has no means to
make any purchase and he cultivates his father's land. None of these solemn statements
has been challenged by the defendants by way of cross-examination. This evidence as
regards non-payment of consideration and the benami nature of the kabala goes
uncontroverted. Although three of the defendants deposed in the trial Court along with

Page No. 3 of 10
two other witnesses, none of them has said a word in his deposition regarding passing of
consideration under the kabala executed by plaintiff No. 2 in favour of plaintiff No. 1 and
the alleged real and bona fide character of the said deed.

17. Plaintiff No. 1 was 25 years of age at the time of his deposition in Court on 29-4-1960
and the bainanama and the kabala Exh. A(4) were executed on 15-9-1957 and 2-10-1957
respectively. Plaintiff No. 1 was a young man below 22 years of age at the time of these
transactions. It can safely be concluded from all the circumstances disclosed in evidence
that he was living under the care and protection of his father without any independent
source of income. Not a scrap of paper has been produced by the defendants to show that
he had, any means to purchase any property.

18. In their written statement, the defendants sought to make out a case that plaintiff No.
1 himself purchased the properties from Prionath and plaintiff No. 2 merely executed the
deed on the strength of the power of attorney executed in his favour by Prionath. The
falsity of this story is evident from the Deed of Exchange Exh. 1 which was duly proved
and accepted without objection by the defendants. Plaintiff's case that his document could
not be registered as Prionath died after its execution and that is why plaintiff No. 2
executed three Ammukhtarnamas in favour of the heirs of Prionath. While Prionath's
heirs executed one Ammukhtarnama in his favour is borne out by Exhs.2 to 2(b), the
certified copies of three powers of attorneys executed by Hazari Sheikh in favour of the
heirs of Prionath and Exh. 2(c), the original power of attorney executed by Prodyat
Kumar Biswas and others. These exhibits were accepted without any objection from the
side of the defendants.

19. The fact that the Deed of Exchange was executed by Sheikh and Prionath who
exchanged their lands in India and Pakistan respectively, positively shows that Hazari
Sheikh got the suit lands by way of exchange from Prionath. The document contains
recitals to this effect. This case of the plaintiffs is further strengthened by the fact that the
heirs of Prionath executed an Ammukhtarnama in favour of Hazari Sheikh. There is not a
scrap of paper to support the defence case that plaintiff No. 1 had properties in India and
that he made the purchase with his own money. Had he had properties in India, the
exchange deed would have been executed by plaintiff No. 1 and not by his father Hazari
Sheikh. The contention of the defendants that plaintiff No. 1 was the owner of the
properties is believed by the fact that on the admission of defendant No. 4. Dr. Nurul Haq
he took lease of the dispensary situated in the homestead from plaintiff No. 2 (vide Exh.
8). Defendant No. 3 Abul Hussain also appears to have been present at the time of
execution .of the Deed of Exchange Exh. I, but defendant No. 3 has denied this fact. His
house is at Nrisinghapur and Exh. 1 shows that Abul Hussain who attested that document
was also a man of Nrisinghapur. Plaintiff No. 2 Hazari Sheikh has also deposed that Abul
Hussain attested the Deed of Exchange. It is interesting to note that P. W. 2 Naziruddin
Khan who was bent upon supporting the defence case has also stated that defendant Abul
Hussain attested Exh. 1 and has thus given a lie to the denial by Abul Hussain. The
evidence and the circumstances stated above, conclusively show that plaintiff No. 2 is
owner of the properties and that the kabala executed by him in favour of plaintiff No. 1 is
a benami transaction.

20. We are unable to agree with the finding of the' learned Subordinate Judge with regard
to possession of the disputed, lands. He based his findings on this point merely on the
statement of defendant No. 3 that they are in possession of the entire disputed lands
except the homestead and the supposed admission of plaintiff No. 2, without any
discussion and scrutiny of evidence on both sides with regard to possession. The relevant
observation in his judgment at page 37 of the Paper Book is as follows

"P. W. 2 Naziruddin in his- cross-examination admits that after the purchase by


the defendants, they posted bamboos in the garden and bamboo clumps, ' for
taking possession; they also posted bamboo on paddy lands for taking possession,
the defendants cultivated the paddy lands out of the suit land, and they took
paddy. In view of those admissions by the plaintiff No. 2 Naziruddin, it is
abundantly clear that the defendants' case is true that they are in possession of the
entire disputed lands except the homestead situated in the disputed lands."

Page No. 4 of 10
It is evident from the above observation that the learned Subordinate Judge was carried
away by the wrong impression that P. W. 2 was the same as plaintiff No. 2, whereas the
actual fact is that plaintiff No. 2 is Hazari Sheikh, while P. W. 2 is one Naziruddin Khan.
This approach to the evidence regarding possession was thus manifestly wrong. Plaintiffs
1 and 2 have testified that plaintiff No. 2 has all along been in possession of the suit
lands. P. W. 1 (Plaintiff No. 2) has stated:

"I did not receive any consideration from my sons. My sons were my benamdars.
The plaintiff No. 1 did not possess lands in respect of which I executed kabala in
his favour. The kabala is with me and pay rent. "In cross-examination he has
said." I executed 3 Ammukhtarnamas in favour of the heirs of Prionath. Some
Mohurer of the Sub-Registrar's Office told me to execute Binama Kobalas in
favour of my sons as the power of attorney were in my name. I purchased some
land at Damki and constructed a Khamar house there. There is a kitchen also near
the Khamar house there. My one son Sahidur' resides here. Female members of
my house also occasionally to and reside there. Occasionally I also reside there."

21. The evidence of plaintiffs' witness No. 6 (Plaintiff No. 1) is that he resides with his
father and that he has no property of his own; that he has no means to make any purchase
and that he cultivates his father's land. Defence did not challenge the evidence of
plaintiffs Nos. 1 and 2, just referred to, by way of cross-examination and did not even
suggest that plaintiff No. 1 does not reside with his father and that he does not cultivate
his father's lands.

On the defense side D. Ws. 1, 4 and 5 have deposed as to possession. D. W. I has testified
that they got possession of the kabala lands except the homestead and that they are still in
possession of those lands and in cross-examination he has stated: "We entered the land on
the next date of registration of the kabala. After registration of the kabala an injunction
was issued upon us not to go to the land. We were in possession of the land since before
the order of injunction was passed. This evidence cuts through the case itself in paragraph
six of the written statement where it was stated that. "At the time of the sale of the suit
property the plaintiff No. 1 gave verbal undertaking to the defendants that within one
month he would deliver khas possession in favour of the defendants of the residential
house on the property described in Schedule "Kha" and go elsewhere. Plaintiff No. 1
delivered possession of the other properties in favour of the defendants at the time of the
execution of the kabala. "D. W. 4 has made a vague statement that they possess all the
suit properties except the homestead since the time of their purchase. This is the witness
who has said in cross-examination." I would not keep any information regarding the
properties of the plaintiff. I beard about Bainanama and sale of the suit land but I was not
present when the Bainanama was executed or the kabala was executed."

22. P. W. 5 sought to make out a new case by stating that since their purchase they
possessed the entire suit lands including the homestead. This is not the case of the
defendants either in their written statement or in the evidence of their witnesses, namely
that the defendants possessed the homestead also since the purchase.

23. Adverting to P. W. 2 Naziruddin Khan, it is clear that plaintiffs examined him as a


formal witness to prove certain documents including the Deed of Exchange Exh. 1. In the
last line of his examination-in-chief, he said that the plaintiffs possess the disputed
properties. In his cross-examination he said: "About 2 years ago, 'the plaintiff constructed
a new homestead at village Banki. He has purchased many lands there. He along with his.
second wife with her children reside there. The plaintiff No. 1 resides in the house of
Prionath. After purchase by the defendants they posted bamboos in the garden and
bamboo clump for taking possession. They also posted bamboo on paddy land for taking
delivery of possession. The defendants cultivated the paddy lands out of the suit lands
and they took the paddy." It will be noticed that what is stated in the cross-examination is
directly opposed to his evidence in examination-in-chief on the point of possession.
Though a witness for the plaintiffs, he went much further than the defendants themselves
in seeking to prove the latter's possession of the suit lands. None of the defendants who
deposed in the case has spoken of delivery of possession by posting of bamboos in the
garden and bamboo clump. That is not the case of the defendants, even in the pleadings.
P. W. 2 went all out to support the defence case and sought to prove that the defendants

Page No. 5 of 10
took possession not only of the culturable lands but also of the homestead which is
distinctly indicated by the statement regarding posting of bamboos in the garden and
bamboo clump. We are constrained, in the above circumstances, to hold that D. Ws. 1, 4
and 5 are not witnesses of truth and P. W. 2 was gained over by the defence and none of
them deserve credence.

24. It is pertinent to note that the suit was first filed before the Munsif of Kushtia who by
an ad interim order of injunction passed -on 16-3-1958, restrained the defendants from`
entering into possession of the disputed lands. This injunction was vacated on 17-5-1958.
There was an appeal against the order dated 17-5-1958 and the learned appellate Court
directed the trial Court to issue an order of temporary injunction in favour of the plaintiffs
restraining the defendants from entering the suit properties or taking possession of the
same. These facts will appear from the certified copy of the appellate judgment which
was originally made Exh. 1. The plaint was returned on 6-3-1959 by the learned Munsif
and when it was refilled in the Court of the learned Subordinate Judge, Kushtia, notice
for ad interim injunction was issued on 21-3-1959 and on 7-5-1959, the learned
Subordinate Judge passed an order of injunction restraining defendants from entering into
the possession of the disputed properties. There was no appeal against that order. It can
hardly be believed that the defendants had entered into possession before the passing of
the injunction order and that in spite of the injunction they continued in possession. The
learned Subordinate Judge passed an order of injunction after hearing the parties and after
he found a prima facie case in favour of the plaintiffs which indicates that he was prima
facie satisfied that the plaintiffs were still in possession of the disputed properties. D. W.
1 has deposed that they were still in possession on the date of his deposition that is
30-4-1960. If the defendants after issue of the injunction order went upon the lands and
possessed the same, they might well have been hauled up for contempt of Court and the
plaintiffs would not sit idle and take no steps against them in that behalf. On a
consideration of the evidence and other features of the case as regards possession, we are
of the view that plaintiff No. 2 has all along been in possession of the disputed properties
and that the defendants' story of possession is a myth.

25. In support of his contention that ad valorem court-fee was payable in this case and
that with a fixed court-fee of Rs. 20 the suit is not maintainable, Mr. Islam has cited
several decisions.

In the case of Joseph Lezarus v. Isha Khan (A I R 1958 Pat. 108), it was held that a suit
for a declaration that the sale-deed executed and registered in favour of the defendants by
the plaintiff's mother with respect to the suit property is void ab initio to having been got
executed fraudulently and that the defendant has not acquired any right; title or interest to
the said property by virtue of the sale, is not a pure declaratory suit requiring a fixed
court-fee under Article 17(iii) of Schedule Il of the Court Fees Act, but is a suit for
declaration and consequential relief of avoiding the effect of the sale-deed in question in
the garb of a mere declaratory suit and requires ad valorem court-fee under section 7 (iv)
(c). The decision in that case, in our opinion, is not applicable to the facts of the present
case, inasmuch as, no declaration that the defendants has not acquired any right, title and
interest in the suit properties by virtue of the sale has been prayed for in this suit.

26. In the case A I R 1944 Pat. 17, the plaintiff alleged that the defendants fraudulently
got the plaintiff to execute certain sale-deeds which were without consideration and
prayed for a declaration that the sale-deeds were got up and fraudulent and that the
defendants had acquired no title by virtue of the same, and the learned Judges of the Full
Bench held that as the sale-deeds on their very face had been duly executed and properly
registered, carrying with them the necessary legal consequence that title passed from the
transferor to the transferee the sale deeds would necessarily require to be cancelled in
order to get rid of the legal consequences attaching to them. That being the very object of
the suit though the plaintiff did not in terms ask for the cancellation of the deeds in
question that relief was implicit in the relief sought for. The suit, therefore, being one for
declaration and consequential relief was governed by section 7 (iv)(c) and not Schedule
2, Article 17(iii) of the Court Fees Act. It was further held that in considering what
court-fee is payable on a, plaint, caution must be observed so as not to import into the
plaint anything which it does not really contain either actually or by necessary
implication. In construing the plaint the Court must take it as it is, not as it may think it

Page No. 6 of 10
ought to have been. A relief not asked for cannot be imported so as to charge court-fee
thereon. Where a plaintiff who is entitled to consequential relief frames his suit as one for
a declaration only, the Court is not entitled to insist upon his praying for a consequential
relief and paying the court-fee proper for such a suit.

27. It was laid down by a Full Bench of this Court in the case of Baibakilal Basak v. Iqbal
Ahmed Quraishi and another (17 D L R 119), that for the purpose of determining
court-fees in construing the plaint, the Court must take it as it is and not as it thinks it
ought to have been; but while deciding the suit on merits, the Court must decide the
amount of court-fee payable on the plaint as per prayer in the plaint upon a consideration
of the plaint as a whole and the relief that ought to have been prayed for and if it is found
that proper court-fee has not been paid for the relief which ought to have been prayed for
but only fixed court-fee has been paid to accordance with the prayer and the statement in
the plaint, the suit is liable to be dismissed for non-payment of proper and sufficient
court-fee. Thus according to the above Full Bench, decision of this Court to which one of
us was a party, the position clearly is that while determining the court-fee payable on a
plaint, the Court at the initial stage has to accept the court-fee paid by the plaintiff on the
basis of the relief claimed in the plaint without asking the plaintiff to pray for further
relief which, it thinks, ought to have been prayed for and compelling the plaintiff to pay
ad valorem court-fee, but after hearing the suit on merits, if on a consideration of the
plaint as a whole and the relief prayed for, it is found that the plaintiff ought to have
prayed for further relief and paid ad valorem court-fee, which he did not pay, the suit of
the plaintiff is liable to be dismissed for not having paid proper and sufficient court-fee.

28. In this context reference may be made to Order 1, rule 4(a). Rule 9 and rule 10(2) of
the Code of Civil Procedure.

Rule 4(a) runs thus:

"Judgment may be given without any amendment (a) for such one or more of the
plaintiffs as may be found to be entitled to relief, for such relief as he or they may
be, entitled to; to

Rule 9 provides that no-suit shall be defeated by reason of the mis-joinder or non-joinder
of parties and the Court may in every suit deal with the matter in controversy so far as
regards the rights and interests of the parties actually before it.

Rule 10(2) authorises a Court to order at any stage of the proceedings that the name of
the party improperly joined whether as plaintiff or defendant, be struck out and the name
of any person who ought to have been joined, either as plaintiff or defendant or whose
presence before the Court may be necessary in order to enable the Court effectually and
completely to adjudicate upon and settle all the questions involved in the suit, be added.

After consideration of the case on merits, it appears that plaintiff No. 1 was wrongly
joined as, a plaintiff and might have been impleaded as a pro forma defendant; but this
mis-joinder of plaintiff No. 1 has not stood in the way of dealing with the matter in
controversy, as regards rights and interests of plaintiff No. 2 and the defendants. In this
case plaintiff No. 2 has been found to have been entitled to relief and as such we are
granting relief to him.

29. In the instant case the plaintiff No. 2 has paid fixed court-fee as well as court-fee for
the consequential relief prayed for in the shape of permanent injunction. Now we are to
see if the suit is maintainable in the absence of payment, or ad valorem court-fee.

30. We have already found that plaintiff No. 2 has not only got title to the suit lands but
also obtained possession therein. Not being executant of the kabala in question it was not
necessary for him to' pray for cancellation of the deed. He has prayed for appropriate
reliefs, namely that the kabala executed by the plaintiff No. 1 in favour of the defendants
is not l binding on him and permanent injunction for which proper court-fees have been
paid. Plaintiff No. 1's suit has been dismissed. Thus the contention that the suit is not
maintainable in the absence of payment of ad valorem court-fee is without any substance,
inasmuch as, the court-fee paid by plaintiff No. 2 on the plaint is sufficient.

Page No. 7 of 10
31. Reference has been made to the case of Kalipada Mondal and others v. Kali Charan
Mondal and others to support the contention that the suit is hit by section 42 of the
Specific Relief Act. In that case it was laid down that if the plaintiffs are out of
possession and the benamidars are in possession, the recovery of possession from the
benamidar is `further relief' which the plaintiffs ought to pray for, when praying for a
declaration that the patta is a benami document; and in the absence of such a prayer for
the "further relief" the Court must refuse to give a mere declaration. The facts of the
present case are different from those of the case under reference, inasmuch as, it is not the
plaintiffs' case here that the benamidar (plaintiff No. 1) is in possession of the disputed
properties. Furthermore, we have already held that plaintiff No. 2 who executed the
benami kabala is in possession of the entire properties. It may further be noted that in the
plaint it was asserted that plaintiff No. 2 is in possession of the suit lands.

The present suit is for declaration and consequential relief, gamely, a permanent
injunction.

For reasons stated above, section 42 of the Specific Relief Act is no bar to the
maintainability of the suit.

32. The next point urged by Mr. Islam is that if it is held that the plaintiff No. 1 was
benamidar of plaintiff No. 2, the defendants are entitled to the protection under section 41
of the Transfer of Property Act. Section 41 of the Transfer of Property Act provides that if
a person is an ostensible owner of the immovable property with the consent, express or
implied of the person interested in the same and transfers the property for consideration,
the transfer shall not be voidable on the ground that the transferor was not authorised to
make the transfer provided that the transferee after taking reasonable care to ascertain
that the transferor had no power to make the transfer has acted with due care. Bona fide
purchasers for value without notice are protected by this section. It is necessary to
determine whether the defendants are bona fide purchasers for valuable consideration
without notice of the title of plaintiff No. 2. The defendants have not even produced their
most important title deed, namely the kabala executed by plaintiff No. 2 in favour of
plaintiff No. 1. Plaintiff No. 2 has emphatically asserted that the document is in his own
possession. The correctness of this statement can hardly be doubted. Had it been in
possession of plaintiff No. 1 and had he been the real owner of the properties, the
document would have been made over to the defendants and they would have, in that
case, certainly filed it in Court.

Nothing was- stated in the written statement that the defendants made any enquiry except
making single statement that the defendants were bona fide purchasers for valuable
consideration without notice of the alleged benami. Absence of bona fides on the part of
the defendants is clearly indicated by the fact that they did not even get the original
document of title of the transferor. Besides, the plaintiffs have produced Union tax
receipts, Exh. 4 series and dakhilas, Exh. 5 series to show that plaintiff No. 2 was all
along paying the Union Tax of the homestead and on some occasions either had paid the
rent to the landlord or rent was paid through him. It further appears that his name was
recorded in the column for tenants in one of the dakhilas. If the defendants made enquiry
in the State Acquisition Office or in the Union Board Office, they would have known as
to who was the real owner of the property but either no intelligent enquiry was made by
them or they did not think it necessary to make any enquiry having been aware of the fact
that the owner of the properties was plaintiff No: 2 and not plaintiff No. 1.

33. There is some evidence to the effect that plaintiff No. 2 was present on the date of the
bainanama along with the father-in-law of plaintiff No. 1. This fact has been testified to
by some of the defence witnesses. D. W. has stated that they were asked to attest the
document but they did not do so. It is admitted by the defence witnesses that plaintiff No.
2 was living with his family in the homestead at the time of the bainanama. It does not at
all stand to reason that the defendant would purchase the properties knowing that at least
part of the same was in possession of the plaintiff No. 2 and the members of his family
without insisting upon plaintiff No. 2 to allot the land unless it was a mala fide
transaction.

Page No. 8 of 10
34. There is no satisfactory evidence of payment of consideration for the sale-deed, Exh.
A(4). The date of execution of the bainanama is 29th Bhadra, 1364 B. S. corresponding
to 15-9-1957, while the kabala Exh. A(4) is dated 9th Kartick 1364 corresponding to
2-10-19YI. The evidence of P: W. 1 who is defendant No. 3 in the suit is that Rs. 6,100
was paid as earnest money on' the date of execution of the bainanama and the balance of
Rs. 1,900 was paid on the date of the kabala. He has further stated that he paid Rs. 1,000
father of Reazuddin paid Rs. 4,000 and Muhammad Ali paid Rs. 1,100 on the date of
execution of the bainanama. In his cross-examination he stated that his brother-in-law
Muhammad Ali paid the balance of Rs. 1,900. The evidence of D. W. 2 is at variance and
inconsistent with that of D. W. 1. Although D. W. 2 also deposed that Rs. 6,100 was paid
on the date of the execution of Exh. C and Rs. 1,900 was paid when the kabala was
executed, in his cross-examination he made a categorical statement that Abul Hussain
paid Rs. 6,100 in the hand of Mofizur Rahman (plaintiff No. 1). He does not say that any
other defendant paid any money out of that amount. .D. W. 4 who is no other than
defendant No. 4 Dr. Nurul Huq has not said a word in respect of passing of consideration
of the kabala; on the contrary, he has stated that he heard about the bainanama and sale of
the suit properties but he was not present when the documents were executed. It is
noteworthy that had been a bona fide purchaser of the suit lands along with others, he
would not have been so callous and unconcerned about the transaction. He has not even
said that he was present at the time of settlement of terms. There is nothing in his
evidence that he paid any, part of the consideration at all. His conduct is thoroughly
inconsistent with his claim of purchase of the disputed properties along with the other
defendants.

Next witness is D. W. 5. He is defendant No. 2 Sabatullah, father of Reazuddin. He has


stated in direct contradiction to the testimony of D. W. 1 that his son Reazuddin made the
purchase and paid Rs. 4,000. He also denied any knowledge about the bainanama and the
kabala. While D. W. 1 says that the father (D. W. 5) aid Rs. 4,000, the father says that his
son Reazuddin paid the' amount and made the purchase. Thus the evidence of D. W. 5
also as regards payment of consideration does bear scrutiny. It is important to note in this
connection that Reazuddin who according to his father is the real purchaser and payer of
the sum of Rs. 4,000 has not been examined as a witness. Muhammad Ali who according
to the evidence of D. W. 1 paid Rs. 1,100 on the date of execution of Exh. C and Rs.
1,900 at the time of the kabala, has also not been examined. There is no explanation
whatsoever as to why these two persons who would be most competent witnesses to
prove the payment of consideration: were withheld from the witness box.

P. W. 6 Mofizur Rahman (plaintiff No. 1) has denied having received and consideration
for the kabala noticeable fact is that the evidence adduced by the defence is to the effect
that the plaintiff No. 1 purchased the stamp papers for the kabala. The purchase of stamp
papers for a kabala or any other document is the liability of the recipient of the deed and
it is not stated why in this particular case stamp papers were purchased by the vendor,
plaintiff No. 1. This also raises suspicion with regard to the passing of the consideration.

Regard being had to the inconsistencies, the anomalies and the contradictions in the
evidence of the defence witnesses and other circumstances as regards payment of
consideration for Exh. A(4), we are unable to accept the defence case that the defendants
paid Rs. 8,000 as consideration of the kabala t o the plaintiff No. 1.

35. In the circumstances as above, we are satisfied that the purchase of the defendants
from plaintiff No. 1 was not a bona fide transaction for valuable consideration and that
the defendants were aware of the fact that the properties really belonged to plaintiff No. 2
and not to plaintiff No. 1. Thus they are not entitled to the protection provided by section
41 of the Transfer of Property Act.

We, therefore, dismiss the appeal with costs. We affirm the judgment and decree of the
trial Court so far as the declaration is concerned but we set aside the order with regard to
costs as in our view plaintiff No. 2 is entitled to the costs of the suit also and we modify
the decree of the trial Court accordingly.

HASAN, J.-I agree.

Page No. 9 of 10
K. B. A. Appeal dismissed.

Page No. 10 of 10
P L D 1967 Karachi 733

Before Wahiduddin Ahmad, J

AISHA BAI-Plaintiff

versus

USMAN MUHAMMAD AND ANOTHER--Defendants

Suit No. 89 of 1961, decided on 20th January 1966.

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

----- S. 7 (iv) (c) & 17----Declaratory suit-Plaintiff in addition to declaration praying for
consequential relief-Case governed by S. 7(iv)(c)-Specific Relief Act (I of 1877), S. 42.

Gurdawara Puram Hans Mahatma Panap Duss Ji Maharaj and another v. Gopi Chand and
others A I R 1941 Lah. 265, ref.

(b) Contract Act (IX of 1872)-----

---- S. 16-Undue influence-Woman entering into contract literate having full business
aptitude as well as capable of looking after her own interest-Not entitled to any special
consideration.

Poosihurai v. Kanappa Chettiar and others A I R 1920 P C 65 ; Chainta Dasya v. Bhalku


Das A I R 1930 Cal. 591 ; Qamar Ara Begum v. Sultan Begum and others A I R 1930
Oudh 131 ; Mst. Anupa Bai wife of Gorelal Kirar v. Bhagwant Singh and others A I R
1938 Nag. 470 ; Tungabhai Bhratar Purushottam Shamji Kumbhajkav v. Yeshwant
Dinkar Jog and another A I R 1945 P C 8; Ram Kulap Pande v. Bansidhar and another A I
R 1947 Oudh 89 and Thungachi Nachial and another v. Ahmed Hussain Malumiar and
others A I R 1957 Mad. 194 ref.

(c) Partnership-----
------ Dissolution - Agreement entered into on dissolution-Can be set aside on ground of
error to concealment of truth by other partner.

Law v. Law (1905) 1 Ch. D 140 and Lindley on Partnership, 12th Edn., p. 516 ref.

(d) Contract Act (IX of 1872)-----

--- S. 16-Person seeking to set aside contract alleged to have been entered into by him on
false and fraudulent representation-Should be prompt in seeking redress-Lapse of long
time disentitles such person to seek any relief from Court.

United Shoe Machinery Co. of Canada v. Brunet and others 1909 A C 330 ; Thomas
Clarke v. Samuel Auchmuty Dickson, John Williams and Thomas Gibbs 120 E R 463 and
Sheffield Nickel and Silver Plating Company, Limited v. Unwin (1877) 2 Q B D 214 ref.

Khalilur Rehman for Plaintiff.

K. A. Ghani for Defendant No. 1.

M. Y. Nizami for Defendant No. 2.

Dates of hearing : 12th October 6th and 7th December 1965.

JUDGMENT

This is a suit for cancellation of the deed of dissolution of partnership, for rendition of
account and appointment of Receiver in respect of the partnership business carried on

Page No. 1 of 16
under the name and style of Salika Sewing Machine Company, Karachi. It has been
brought under the following circumstances.

2. In this suit the dispute between the parties is in respect of Salika Sewing Machine
Company, Karachi which was a partnership business. On 20th November 1951,
Defendant Usman Muhammad and Haji Abdul Karim and one Dada Allarakhia started to
run the business of hire, hire purchase sales and repairs of sewing machines and for
conducting sewing coaching classes. Haji Abdul Karim made an investment of Rs.
40,000. Usman Muhammad defendant No. 1 and Dada Allahrakhia made investment in
the said business in the sum of Rs. 5,000 each. On 25th August 1952, Dada Allarakhia
retired from the partnership and his share reverted to the continuing partners in equal
shares. Thus defendants No. 1 and 2's share in the said business was 8 Annas each. On
14th January 1953, Aishabai, the plaintiff was admitted in the partnership business with
an investment of Rs. 10,000 and her share was fixed at annas 4 in a rupee. The share of
the other partners was 6 annas each. Under the terms of partnership each partner was
entitled to draw Rs. 200 per month.

3. In 1954 plaintiff and defendant No. 2 fell out from defendant No. 1 and filed suit No.
1182 of 1954 in the Chief Court of Sind for dissolution of partnership and accounts. In
this suit an ad interim Receiver was appointed by the Court. On 10th December 1954, the
parties compromised the matter by compromise application Exh. P. W. 1/3. Under the
compromise cash, accounts books and the stock in future were to be in charge of
defendant Haji Abdul Karim. Coaching classes were to be in charge of the plaintiff.
Defendant No. 1 was made incharge only of outdoor work. In case of defendants Nos. 1
and 2 their monthly allowance was raised to Rs. 400 per month. Plaintiff was to continue
to receive monthly allowance of Rs. 200 per month. On 1st February 1957, defendants
Nos. 1 and 2 entered into a side partnership' business for sale of sewing machines under
the name of Salika Sewing Machine Selling Agency by deed Exh. D. W. 1/4. This was
with the consent of the plaintiff, who attested the above partnership deed as a witness. In
this way the industry business was separated from the selling agency business. Plaintiff
and defendants Nos. 1 and 2 were partners only in the industry business.

4. Plaintiff's case is that the defendant No. 1 is a very shrewd person. In 1955, he
suggested that the business of repairing sewing machines should be converted into
Industrial Manufacturing and Sewing Machines and persuaded defendant No. 2 to
purchase machinery for manufacturing the sewing machines sad to hire them out to the
partnership business. For this purpose he also persuaded defendant No. 2 to take the
premises situated at Firdous Colony, Golimar, Karachi on rent. Defendant No. 2
purchased the machinery as and when required and gave them on hire to the firm.
Gradually the industry started and the firm successfully obtained licences for raw
materials. It is alleged that defendant No. 1, who had evil designs to misappropriate the
business to himself, manipulated the business in such a way that the plaintiff and
defendant No. 2 were deprived of all control over the business of the firm. At first
defendant No. 1 successfully designed a separate partnership by the name of Salik3
Sewing Machine Selling Agency between himself and defendant No. 2 by the partnership
deed dated 1st February 1957, referred to above on the pretext that by representing to the
Income Tax Authorities that the industry was separate, it would be convenient for the firm
to save income tax and sales tax. The affairs of settling income tax and sales tax liabilities
was solely in charge of defendant No. 1. In this way he obtained a further capital of Rs.
5,000 from defendant No. 2. It is alleged that by this design industry was separated from
selling agency. Defendant No. 2 was assigned the job of keeping the account of sale only
at the showroom at Frere Road and all affairs of industry including accounts remained in
the hands of defendant No. 1 and were completely kept out of the notice of the plaintiff
and defendant No. 2. It is further alleged that the coaching classes of the Training
Institute in charge of the plaintiff were also reduced to an insignificant position because
most of the open space was occupied for industry purposes.

5. Plaintiff has further alleged that by the end of February 1958, the plaintiff's father, aged
about 75 years, had become very ill as he suffered from a sudden attack of palpitation of
heart and it was feared that he would not survive. The plaintiff, a widow having no other
male member to help them was very much worried for his health. Defendant No. 1 took
undue advantage of her helplessness and pitiable condition and made fearful

Page No. 2 of 16
representation to them that the partnership was likely to suffer heavy losses as the Income
tax and sales tax authorities had decided to levy heavy taxes and there was no money
available for the payment of technicians whose recurring expenses amounted to Rs. 7,000
per month. He demanded further capital to save the business froth running into loss. This
led them to believe that they would lose every penny invested in the business. It is
alleged that about the same time defendant No. 1 and some of his friends, who posed as
sympathisers of the plaintiff and defendant No. 2, regularly day in and day out
approached them and stated that there was bound to be dissolution of the firm on the
likely death of defendant No. 2 and in that event defendant No. 1 will have chances of
usurping the whole business; and the plaintiff, being a woman would not be able to
recover their investments or profits. They were told that defendant No. 1 alone being
conversant with the machinery will have the entire charge of the business and that even if
her father survived, they would not be able to run the business as they were not
conversant with the technique of running the factory. It was suggested to them that if
defendant No. 1 could be persuaded to pay the capital investment they would be lucky to
save themselves from losses.

6. It is alleged that subjected to such undue influence and coercion, the plaintiff's father,
who was completely incapacitated in mind and body, was persuaded to accept the return
of whatever capital investment the defendant No. 1 was going to make to them. The
plaintiff being a woman was not allowed to have any say in the matter. It is alleged that it
was in these circumstances that defendant No. 2 was persuaded to agree to receive one
lac and ten thousand rupees and on 4th March 1958, was made to execute the dissolution
deed drafted by Defendant No. 1 without allowing him any time to have any independent
advice. The plaintiff also on account of stron1 persuations had to subscribe her signature
to the deed of dissolution.

7. Plaintiff's further case is that the amount of one lac 10 thousand received by the
plaintiff's father was short of even the capital, they had invested in the business. This did
not include their profits accumulating in the firm or the value of their share in the
goodwill and assets of the firm which was of much more value than the amount paid. On
these grounds it is alleged that the above deed of dissolution was obtained by undue
influence and coercion and is ineffective in law. Plaintiff further alleged that she had not
been paid a single penny out of her capital or towards the profits and the value of her
share in the goodwill and assets of the firm. The dissolution deed is also attacked on the
ground that it is based on untrue facts and misrepresentations. It is alleged that no
accounts were drawn up or taken and settled as recorded in it. The firm never suffered
any loss. The plaintiff and her father were kept in complete darkness about the stock
lying in the factory and of the sales effected in black market. The delay in filing the suit
has been explained on the ground that she had no immediate opportunity to repudiate the
dissolution deed as her father's illness prolonged and she remained under continuous
strain. For these reasons the plaintiff claims that the dissolution of the partnership is not
binding upon her and is liable to be set aside as it was brought about in utter disregard
and violation of the partnership and the agreed terms governing the partnership.

8. In his written statement Haji Abdul Karim, defendant No. 2 has supported the case of
the plaintiff. In para. 7 of tire written statement he has stated that defendant No. 1 cad
never the intention of creating the industry for the common benefit of all and devised
ways and means by which he made the defendant No. 2 incur large sums over the
purchase of the machinery which were hired to the firm. However the production was
exclusively controlled by defendant No. 1 and he did not render any accounts on the false
plea that an account will be duly submitted to the plaintiff by answering defendant No. 2.
In para. 9 of the written statement he pleaded that indeed the scheme of the said partner-
ship of Ist February 1957, was cleverly designed by defendant No. 1 by forcing the
plaintiff and defendant No. 2 to go on investing as much amount as possible, and
ultimately to block the entire monies of the plaintiff and defendant No. 2 and forcing
them to agree to the dissolution on his own terms. He alleged that the trust reposed is him
was exploited against them in his favour. In para 12 of the written statement the
defendant has alleged that at the time of dissolution defendant No. 1 had even extended
threats to his very life. In para 19 of the written statement he pleaded that he was not
aware of the fact that defendant No. 1 concealed the whole stock of machineries which

Page No. 3 of 16
were sold in black market surreptitiously. He alleged that an amount of Rs. 2,60,000 and
an earning made in black market amounting to Rs. 1,86,000 were misappropriated.

9. The suit was resisted on behalf of Defendant No. 1. In the written statement he pleaded
that the suit was barred under the law and was liable to be dismissed, as the firm Salika
Sewing Machine Co. was not registered under the Partnership Act. It was further pleaded
that the suit was not properly valued and as required by law court-fee had not been paid.
The contesting defendant denied all the allegations made against him. In para. 6 of the
written statement he stated that the manufacturing one was agreed to be started by mutual
discussion between all the three partners. He alleged that defendant No. 2 is a shrewd
businessman and he never allowed his finances and earnings to remain stationary for any
length of time. He denied that the defendant No. 2 purchased the machinery as alleged or
gave them on hire to the firm. According to him, the purchases were made by the
defendant No. 2 on behalf of the him and the price paid by him was credited in the
account books as additional capital investment of defendant No. 2 in the firm and was
duly settled at the time of dissolution of the firm. He alleged that the hire charged by
defendant No. 2 was in fact interest realised in consideration of additional capital advance
made by him to the firm from time to time for purchasing the machinery. He admitted
that the firm took the premises on rent at Firdous Colony in Karachi. He pleaded that the
alleged hire was interest on the additional capital investment of defendant No. 2 as he did
not want to describe it as interest on the plea that he would be criticised for charging the
same as un Islamic. He admitted that the firm got licences. He, however, submitted that it
was agreed between the parties that defendant No. 2 would only charge profit in the
shape of hire for the additional capital investment made by him upto the time the firm had
not received licences and production had not started. April 1957, the industry had started
production and no hire or interest was paid to the defendant No. 2.

10. The contesting defendant denied that at any time he had any designs to
misappropriate tile business himself. He further denied that he under any scheme
manipulated that the plaintiff and defendant No. 2 should be deprived or all the control
over the business of the firm. He denied that the separate partnership by the name of
Salika Sewing Machine Selling Agency between him and defendant No. 2 was made
under any design or that he suggested to defendant -No. 2 that by representing to the
authorities that the industry was separate, it would be convenient for the firm to save
income tax or sales tax. On the contrary he alleged that this partnership was made at the
suggestion of the defendant No. 2 and with the mutual consent of all the partners. He
denied that the affairs of settling the income-tax and sales tax was solely in his charge.
According to him in fact all returns and accounts used to be prepared by defendant No. 2
under his own supervision. The contesting defendant denied that separation of industry of
Salika Sewing Selling Agency was under any design. He alleged that all the accounts of
the Selling Agency and Industry were exclusively kept and maintained under the
direction of defendant No. 2. He denied that only accounts of the show room remained
with defendant No. 2 and that all the affairs of the industry including accounts thereof
were with him or that he took the same in his hand or were never brought to their notice.
The defendant's case is that he being an illiterate man, having only experience in
technical knowledge always remained busy in the production work and all other affairs
and business including supervision and accounts were under the direct control of
defendant No. 2 who was actually assisted by the plaintiff. They kept themselves fully
aware of all the facts and everything was in their own control, supervision and reach. The
defendant denied that the coaching classes were reduced to the alleged insufficient
position. According to him, in fact from 1955-56 to 1957-58 there was no significant
difference in the income from coaching classes. The contesting defendant took the plea
that the plaintiff's father is not of 75 years of age. He further submitted that in spite of his
alleged age the defendant No. 2 has all along been a very active man and taking part in all
the business and wordly affairs. He denied that in February 1958, the condition of
defendant No. 2 worsened as alleged. He further denied that defendant No. 2 had an
attack of piles or palpitation of heart or it was feared that he would not survive. He denied
that the plaintiff was a widow. According to him she is a divorcee. In para. 12 of the
written statement the contesting defendant emphatically denied that he found any time or
opportunity or took any undue advantage of any pitiable circumstances or made any
representations, fearful or otherwise, or represented that there were bound to be losses in
the firm as there was no money to pat the technicians under his charge or Rs. 7,000 per

Page No. 4 of 16
month were to be paid to the technicians, According to him the salary of technicians was
about Rs. 2,100 per month. He further denied that there was any alleged recurring
liability of that nature and that income-tax and sales tax authorities had decided to levy
heavy taxes on the firm, or that the whole business was likely to be shattered and that
there was further need of a lac of rupees. He denied that any alleged representation was
made or that any such contingency existed. He pleaded that all salaries were paid by the
defendant No. 2 and all accounts and affairs and business of the firms were under the
supervision of the defendant No. 2. He alleged that both plaintiff and defendant No. 2 are
very shrewd and clever business-men and were in the know of each and everything and it
would have been impossible to make them believe anything which was not in accordance
with the facts: He denied that he had no money or was not in a position to meet his
liabilities or that the alleged liabilities of taxes were to be met or recovered from the
plaintiff or her father.

11. The contesting defendant denied that some of his friends posed as sympathisers of the
plaintiff and defendant No. 2 and by making fearful representations persuaded them to
enter into the dissolution deed dated the 4th March 1958, Exh. D. W. 1 5. He
emphatically denied that the plaintiff's father was subjected to any undue influence or
coercion or that he was incapacitated in mind or body or he was ill or seriously ill. He
pleaded that the deed of dissolution was drawn up after mutual agreement between the
plaintiff and her father, defendant No. 2, and defendant No.'1 with the aid of independent
legal advice which was received by them and was duly verified before a Justice of Peace
before all the parties signed. In para. 16 of the written statement lie pleaded, that the
Plaintiff and defendant No. 2 of their own free will decided to retire from the partnership
business and to dissolve the firm. Thereupon negotiations started between the parties. The
Plaintiff and her father, defendant No. 2 put forward suggestion that either the defendant
No. 1 or the plaintiff and defendant No. 2 may settle the accounts and interests of the
other party in every thing concerning the partnership whatsoever and give discharge, with
regard to the partnership liabilities, sales tax, income tax, etc. He further pleaded that
upon the suggestion and offer made by plaintiff and her father, defendant No. 2, after
mutual bargaining, agreed to accept fixed lump sum consideration for their rights and
interests in the partnership and the defendant No. 1 agreed to pay the lump sum full
consideration of Rs. 1,05,000 to them, in spite of the fact that the firm had suffered
losses. Thereafter the plaintiff and defendant No. 2 had nothing to do with the firm.

12. It is alleged that the plaintiff and defendant No. 2 finding out that the contesting
defendant had expanded the business and was making profit, after a long silence in order
to knock out more money from defendant No. 1, have filed the suit under consideration.
They have filed false cases against him. Defendant No. 2 had filed Suit No. 106/1960
illegally and falsely claiming that the machineries of the firm belonged to him, and
sought attachment before judgment in order to coerce him to submit to his illegal claims.
1n the same way the plaintiff and defendant No. 2 have filed the present suit. He alleged
that the plaintiff and defendant No. 2 who always come to the Court together and live in
the same house are acting in conspiracy and in collusion and are making illegal
complaints and tiling false cases one after the other, sometimes in their name and
sometimes in the name of others and are thereby abusing the process of the Court. The
defendant averred that the amount of rupees one lac five thousand paid to the plaintiff and
defendant No. 2 truly represent their share in the partnership business and further pleaded
that the deed of dissolution was for consideration. He also pleaded that the amount in
question was paid to them, together and, therefore, the allegation of the plaintiff that she
had not been paid any amount out of rupees one lac five thousand is a false one. He
further denied that the firm had suffered a loss, or huge stock was available as alleged or
that the plaintiff and her father were kept in darkness. On the contrary, he has alleged that
the accounts of the business were with defendant No. 2, who used to maintain all the
accounts and was in the full know of the affairs of the partnership business. Plaintiff, who
is a literate lady, used to attend with her father and had also full knowledge of the affairs
of the business. He denied that the machines produced by the firm were sold in the black
market or he had made any profits surreptitiously.

13. The contesting defendant's case is that since that date of dissolution he had undergone
great strain and hard labour in improving the concern. Due to his own personal working
day and night as the sole proprietor, the firm has flourished and has made a good name.

Page No. 5 of 16
He had brought in more machinery and invested large amount, purchased the building at
Frere Road, Karachi for the business, and land at S. I. T. E., Karachi and bad increased
the production and goodwill by his own personal interest. The plaintiff and defendant No.
2 want to take advantage of this position and in order to blackmail him and to knock out
more money from him have filed the suit under consideration.

14. On 7th March 1963, on the pleading of the parties as many as 11 issues were struck
which are reproduced below :-

Issues

(1) Is the suit not properly valued?

(2) Is the suit time-barred?

(3) Is the suit not maintainable as the firm was not registered?

(4) Is the plaintiff estopped from making the claim in suit?

(5) Is the plaintiff not entitled to the relief claimed in equity as she can be compensated
for the loss she has suffered?

(6) Did Defendant No. 1 manoeuvre and control the entire business and industry of the
firm himself thereby depriving plaintiff of any access to the same?

(7)(a) Was the Dissolution Deed dated 4-3-58 executed under undue influence, coercion,
etc? Upon the plaintiff in the circumstances and on the incorrect and false representation,
etc. as alleged in paras. 12 to 20 of the plaint. If so to what effect?

(b) Can the said Dissolution Deed be set aside on the grounds alleged in paras 12 to 20 of
the plaint?

(8) Was the plaintiff paid consideration for the said dissolution deed dated 4-3-58 or was
she paid any money in connection with the same….. If not to what effect?

(9) Were the accounts of partnership business known to the plaintiff or could the same be
easily known or available to her?

(10) Did the Plaintiff and Defendant No. 2 themselves desire dissolution of the firm
under independent legal advice available and received by them, and on the basis of the
same they agreed to accept Rs. 1,05,000.00 in complete satisfaction of their share, etc. in
the firm?

(11) Can the plaintiff alone file the suit?

In support of their case the parties have adduced both oral and documentary evidence.
The plaintiff has examined herself as P. W. 1. She has examined two more witnesses, P.
W. 2 Dr. Zubair and P. W. 3 Haji Balawal of Habib Bank Limit-.d, Karachi Defendant No.
2 had not appeared in the witness box nor has he examined any witness in support of his
plea. Defendant No. 1 has produced himself as D. W. 1 as witness in the case. He has
further produced D. W. 2 Ahmed Daud, D. W. 3 Dada Noor Muhammad, D. W. 4 Haji
Abdullah, D. W. 5 Nasim Pasha and D. W. 6 Nasirali Malik.

15. It is not necessary to discuss Issue No. 2 and Issue No. 3. It was conceded by Mr.
Ghani appearing for the contesting respondent that the suit is within time. Learned
counsel further conceded that in view of the certificate of registration of partnership, Exh.
P. W. 1/2, the plea that the suit is not maintainable for non-registration of the partnership
business has no force. I would, therefore, decide Issues Nos. 2 and 3 against defendant
No. 1.

16. Issues Nos. 4 and 5 have not been pressed and it is not necessary to express any
opinion on these questions.

Page No. 6 of 16
17. The plaintiff has valued the suit for purposes of court fee and jurisdiction at Rs. 200
for declaration and cancellation of the deed and at Rs. 26,000 tentatively for accounts and
at Rs. 200 for appointment of Receiver. The defendant No. 1 has pleaded that the curt-fee
paid is insufficient. Mr. Khalilur Rehman, learned counsel appearing for the plaintiff, has
contended that the suit is in the nature of contemplated under section 7(4)(c) and is
properly valued. In support of his contention learned counsel has relied on the case of
Gurdawara Param Hans Mahatma Panap Dass Ji Maharaj and another v. Gopi Chand and
others (A I R 1941 Lah. 265). In that case a Gurdwara brought a suit against the Maha it
praying that a document executed by certain person in relation to the property mentioned
in the plaint be declared null and void and that the document be withdrawn from the
defendants and cancelled. This suit was valued both for the purposes of court fee and
jurisdiction at Rs. 1,100 and a court-fee of Rs. 120 was paid. A Division Bench of Lahore
High Court held that the suit whether regarded as falling under section 7(4)(c) or under
Art. 17 the jurisdictional value had been fixed at a reasonable figure and the court-fee
paid was either enough or more than enough. Learned counsel for tile defendant has not
been able to cite any other decision in support of his contention. But on going through the
allegations made in the plaint it seems to me that the plaintiff has not fixed the valuation
for purposes of court-fee and jurisdiction as required by law. Had she fixed the valuation
for purposes of court-fee and jurisdiction in respect of cancellation of the deed at Rs.
26,000, I would have considered it as quite reasonable and sufficient. But in para. 23 of
the plaint she has fixed the value for purposes of court-fee and jurisdiction at Rs. 200 for
declaration and cancellation of the deed. There seems to be some mistake in this respect. I
would take it that the plaintiff has fixed the valuation for purposes of court fee and
jurisdiction for cancellation of the deed at Rs 26,000. Considering the plaint in this way I
am of the view that the plaintiff has paid sufficient court-fee. In my view the precept case
is governed by section 7(4)(c) because the plaintiff in addition to a declaration has further
claimed the cancellation of dissolution deed dated 4th March 1958. Thus he has claimed
both declaration and consequential relief and the ease is governed by section 7 (4) (c) of
the Court-Fees Act. According to the evidence produced in the case the valuation fixed by
the plaintiff for her share in the amount paid to the parties at the time of dissolution
appears to be round about Rs. 26,000 and, therefore, she has fixed the court-fee and
jurisdictional value at a reasonable figure. I would, therefore, decide the issue No. 1
against the defendant No. 1.

18. Issues Nos. 6 to 10 are connected with each other. These are the most important issues
and have a bearing on the question raised by the plaintiff that the dissolution deed dated
the 4th March 1958 is liable to be set aside. In this case the most important question,
therefore, is whether the deed of dissolution was obtained by misrepresentation of facts,
undue influence or coercion or by concealment of the affairs of the partnership business.
It is not disputed by the parties that the partnership business is governed by the terms
agreed upon between them in Suit No. 1182 of 1954. Under Exh. P. W. 1/3 the
-compromise deed, cash, account books and the stock of the partnership business were to
be in charge of defendant No. 2. Coaching classes of the partnership business were to be
in charge of the plaintiff. Defendant No. 1 was only to look after the outdoor work of the
business. He was also to deal with the technical side of the business. It is quite clear,
therefore, that under the terms of the partnership its cash, account books and tile stock
were solely in charge of defendant No. 2. It is however alleged that after the partnership
had started a Sewing Machine Manufacturing Industry, the industry business was shifted
to Golimar and only show room business remained at Frere Road. Thereafter, the
accounts of the factory were maintained by defendant Usman. The plaintiff's case is that
she was in charge only of the Ladies Industrial Home and was never informed about the
business carried on by the Firm and no account was ever rendered nor was any profit paid
to her. She was only paid Rs. 200 per month as maintenance allowance. Her further case
is that she had invested about Rs. 40,000 in the business and the dissolution was effected
between the parties without rendition of accounts and the amount paid to her and
defendant No. 2, her father, did not represent the investment made by them and the
profits earned by them in the partnership business. She alleged that the defendant No. 1
took advantage of the serious illness of her father and by practising undue influence and
coercion on her father obtained the dissolution deed, Exh. P. W. 1/5. Her version of the
circumstances in which the above deed was obtained is as under :-

Page No. 7 of 16
"My father became seriously ill in January 1958. He was suffering from palpitation of
heart and piles. He had become very weak. He was under the treatment of one Dr. Zubair
He was not in a position to walk and could not understand the business affairs. Usman
used to bring his friends to our place. He used to inform us that the business was running
at a loss. The firm has to pay heavy income-tax and other taxes. The firm requires a
further investment of one lakh rupees otherwise the firm will go into liquidation. He
threatened us that the entire investment of ours will go waste and we were likely to suffer
more. He was accompanied by other friends. He used to say that your father will die and I
will not be able to get anything because I was a woman. I am rot aware at what place the
dissolution deed was prepared. I did not instruct any lawyer to prepare the dissolution
deed."

In support of her case defendant No. 2 was seriously ill, she has examined P. W. 2 Dr.
Zubair. This witness stated that he treated Haji Abdul Karim, defendant No. 2 from
January 1958 to March 1958 and proved the medical certificate Exh. P. W. 2/1 dated the
3rd March 1963. The witness stated that he is a T. B. Specialist and employed in the
Karachi Municipal Committee. According to him defendant No. 2 was bleeding too much
due to piles, was unable to walk and was suffering from palpitation. At times he was
unable to follow the talks. The evidence of this witness has not in the least impressed me.
In the first place, the certificate on which the witness has relied is of the year 1963. It is
difficult to accept his statement that he remembered the illness suffered by defendant No.
2 in 1958 and was able to give a correct and proper certificate of his illness in the year
1963. Apart from this the witness is a T. B. Specialist and I am not prepared to accept the
statement that he treated defendant No. 2 for piles and palpitation of heart. Defendant No.
2 has not appeared in the witness box. He was the best witness to depose about his
illness. The very fact that he did not appear in the witness box shows that he was not ill as
alleged by the plaintiff in January, February or March 1958. If it was a fact that defendant
No. 2 was ill in March 1958, defendant No. 2 would have definitely taken advantage of it
and appeared as witness in the witness box to support the case of the plaintiff. Secondly
there is overwhelming evidence on the record to show that defendant No. 2, at the time
when the deed of dissolution was effected was in perfectly good and sound health.
Defendant No. 1 has produced the cash memo bills which Defendant No. 2 used to
prepare about the sale effected in the showroom. Exh. D/15 shows that defendant No. 2
had issued cash memos from 1957. Exh. D/13 shows that the issued cash memos from
July 1957 to 3rd October 1957. Exh. D/14 shows that he issued cash memos from 5th
October 1957 to 17th December 1957. Exh. D/4 shows that defendant No. 2 issued. cash
memos from 18;h December 1957 to 7th February 1958. Exh. D; 3 shows that the
defendant No. 2 issued cash memos from 8th February 1953 to 3rd March 1958. Exh. Y/I
shows that defendant No. 2 even issued a cash memo. after dissolution of the partnership,
on 5th March 1958, that is one day after the dissolution was effected. These documents
leave no doubt in my mind that the plaintiff's case that defendant No. 2 was not keeping
good health or was seriously ill has no foundation whatsoever. If that was so, there is no
reason why defendant No.2 had been regularly attending to the business and issuing cash
memos. The plaintiff's version that the cash memos used to be taken to the house of
defendant No 2 for preparation is also a far-fetched story because admittedly the house of
defendant No. 2 is situated at a distance of about three quarter of a mile from the
showroom of the partnership business on Ferer Road. It was admitted by the plaintiff that
they were residing at Hospital Road which is at a distance from the business premises. I
am not prepared to believe that the customer could wait at the shop premises for the
preparation of the cash memo by defendant No. 2 at his house. Besides, there is other oral
overwhelming evidence on the record to prove that defendant No. 2 was keeping good
health. D. W. 2 Ahmed Daud whom the plaintiff described that he was like a son to her
father has stated in unequivocal terms that Haji Abdul Karim defendant No. 2 at the time
of the dissolution was in perfect good health. Similarly, D. W. 3 Dada Noor Muhammad
and D. W. 4 Haji Abdullah have stated that defendant No 2 at the time of the dissolution
was in perfect told health. It is in evidence of D. W. 5 Nasim Pasha of Eastern Bank that
the amount of one lac ten thousand was deposited by Haji Abdul Karim on 4th March
1952, in the Eastern Bank, Karachi. It is further in evidence that Haji Abdul Karim and
the plaintiff along with other persons visited the bank for the deposit of the amount of
rupees one lac 10 thousand. Exh. D/19 proves that on 4th March 1958 this huge amount
was deposited in cash by defendant No. 2 in his account in Eastern Bank, Karachi. Exh.
P. W. 1/5 was also attested by Agha Sultan Mirza, Notary Public at his office. According

Page No. 8 of 16
to the evidence of D. W. Ahmad Daud and D. W. Usman both Haji Abdul Karim and Mst.
Aishabai attended the office of the Notary Public in their presence. He attested the
document in question. Therefore, except the bare statement of the plaintiff that defendant
No. 2 was seriously ill at the time of the dissolution, there is no reliable evidence on the
side of the plaintiff to support this fact. Defendant No. 2, Haji Abdul Karim did not
appear as a witness to support the case of the plaintiff. Admittedly Mr. Khalilullah,
advocate, who filed the suit under consideration, prepared the draft of the dissolution
deed and his was the best available evidence on the question of the alleged serious illness
of her father at the material time, but no attempt was made to produce him to corroborate
this version. In the absence of any reliable evidence and other circumstances discussed
above, I would hold that the version of the plaintiff that defendant No. 2 was seriously ill
at the time of the dissolution is not proved and cannot be accepted as good plea for the
decision of this case.

19. The allegation of the plaintiff that she and defendant No. 2 were threatened or were
persuaded by misrepresentation to enter into the above dissolution deed has not been
satisfactorily established or proved on the record. Admittedly, under the compromise
entered into between the parties in Suit No. 1182/ 1954 Haji Abdul Karim, defendant No.
2 was incharge of the accounts of the partnership. To a question put to her by the Court
even the plaintiff admitted that "My father used to write the account books. Abdullah
Bhai was not the employee of, the Company." It is, therefore, difficult to accept the
contention of the plaintiff that her father was not in the know of the real state of affairs of
the business or the accounts. In view of this admission the burden on the plaintiff to prove
this fact was very heavy, which she miserably failed to discharge. On the other hand
defendant Usman has produced D. W. 4 Abdullah Bhai Exh. D6/A, the account clerk, as a
witness to prove that he used to write the accounts of the firm under the directions of Haji
Abdul Karim. The witness stated as under:-

"I was working as an Accountant with Salika Sewing Machine Company since 1953 on
part time basis. I used to attend to this work in the evening. Plaintiff filed a suit in 1954.
In that suit Nazir was appointed as Receiver by the Chief Court of Sind. He took custody
of the account books and signed the account books. I produce one of the account books,
Exh. D/22. It is in my handwriting. I used to write these accounts under the direction of
the plaintiff. After the suit was compromised Haji Sahib used to direct me to write the
'account books. On some occasions Aisha Bai was also present. Haji Sahib used to
prepare cash memos and the bills. He maintained rough kutcha accounts. From these
documents I used to prepare pucca accounts. The kutcha accounts were maintained by the
plaintiff in a pocket book. He used to keep it with himself. The firm was maintaining cash
book and a ledger."

Thus this witness was even writing the account books of the firm in 1954, at the time
when the plaintiff and defendant No. 2 filed a suit for dissolution of partnership in the
Chief Court of Sind. This evidence has remained unrebutted. I am, therefore, satisfied
that the case of defendant No. 1 that Haji Abdul Karim used to write the katcha accounts
and they were brought in the regular account books under his instructions by D. W. Haji
Abdullah Bhai is sufficiently proved on the record. This witness further proved the
investment made by the parties in the business. He stated that in the ledger the account of
Haji Abdul Karim showed that the opening balance for the year 1957-58 in the account
No. 1 was Rs. 57,865-8-6 and in the other account his opening balance as shown in the
account books was Rs. 21,899-11-0. He further stated that the closing account showed
that during the year a sum of Rs. 64,078 was due to him. The entries in the account books
Exhs. D/46 and D/ 47 which related to the investment of Haji Abdul Karim was stated to
have been written by him under the instructions of defendant No. 2. 'I he witness stated
that the opening balance of Aisha Bai in this year was Rs. 24,421-1-0. The closing
balance of her account is in the sum of Rs. 14,453-1-0 and in the second account the
opening balance is Rs. 25,166-10-0 and the closing balance is Rs. 27,500. He has proved
the entries of the two accounts Exhs. D/50 and D/51 which disclose the final position of
her account. According to him the final position of her account on 2-3-58 was in the sum
of Rs. 40,219-11-0. He stated that Aisha Bai had full knowledge of the position of her
accounts. Thus, according to this witness, on 2nd March 1958 Haji Sahib was entitled to
Rs. 64,078 towards the investment and profits and Aisha Bai, plaintiff was entitled to Rs.
40,219-11-0. The plaintiff and defendant No. 2 thus was entitled to a total sum of about

Page No. 9 of 16
Rs. 1,04,297. The statement of this witness is further supported by the balance-sheet filet
by defendant No. 2 in the Income-tax Department and referred in the assessment order
Exh. D/3. In view of this corroborative evidence it is quite clear that the investment of the
plaintiff and defendant No. 2 in the business was about the same which they were paid by
defendant No. 1. It cannot, therefore, be said that the transaction in question was of an
unconscionable nature or that the plaintiff has been deprived of her legitimate right or
share in the partnership business. Mr. Khalilur Rehman, learned counsel for the plaintiff,
contended that under the terms of the agreement of partnership deed statement of
accounts was to be prepared every month, but that was not done. The plaintiff cannot take
advantage of this lapse because the omission, if any, was on the part of her father.
However, the contesting defendant has produced Exh. D/17 which shows that monthly
stock account was taken regularly from January 1955, up to November 1955. Thereafter,
on 8th April 1957, account Exh. D/16 was prepared by the parties which bears the
signature of defendant No. 2. Plaintiff has denied the signature of her father bite besides
reliable oral evidence I have compared it with his other signatures on the record and it
cannot be doubted that it bears his signature. In view of such reliable evidence, the
grievance of the plaintiff that she was kept in complete darkness of the business affairs,
or its account is not well founded. It was next urged that defendant No. 1 entered into a
separate partnership deed dated the 1st February 1957, with a view to defraud the
partnership. This partnership was entered into by defendants I and 2 for Salika Sewing
Machine Agency business. Its terms are contained in Exh. P. W. 1/4. This document dated
1st February 1953, is signed both by Defendant No. 1 and Defendant No. 2. It bears the
signature of the plaintiff as an attesting witness. The plaintiff has not denied the
knowledge of its contents. Therefore, she was fully aware of its implication. It is difficult
to find out in what manner it had prejudiced the right of the plaintiff. The allegation that
it was obtained on the plea of saving income tax is meaningless because if plaintiff had
also been taken as a partner the profits would have been divided between more partners
end that would have saved income-tax. There is no evidence on the record to show that it
was entered with any fraudulent intention and I would, therefore, not attach any
importance to this circumstance.

20. This brings me to the next contention of the plaintiff that at the time of the dissolution
no account was settled between the parties and that no value was fixed for the goodwill
and the trade marks belonging to the partnership business. This allegation to a certain
extent is supported by D. w. 2 Ahmed Daud and D. W. 3, Dada Noor Muhammad. Both
the witnesses stated in their evidence that neither the stock of the partnership was
checked in their presence nor were any accounts prepared by the parties before the final
negotiations took place. But on the facts of this case this circumstance by itself cannot be
a ground to cancel the Dissolution Deed Exh. P. W. 1/5. The parties themselves stipulated
in the deed itself as under :-

"Whereas the Party of the Second Part in dissolution of Partnership have put fourth,
suggestions whereby either of the Parties may settle : the accounts and the interests of the
other in everything concerning the partnership business, the assets, the goodwill, the
proprietary rights in Trade Marks or otherwise in whatsoever licences, etc. and give dis-
charge with regard to partnership liabilities Sales tax, Income-tax, etc. and whereas in
mutual offer and bargain, the Party of the Second Part have agreed to accept full fixed
consideration for their rights and interests in the Partnership business and the Party of the
First Part has agreed to pay the same full consideration to Party of the Second Part."

It will thus be noticed that under the tams of the deed the sum of rupees one lac five
thousand was fixed by the parties on the basis of mutual offer and bargain. Considering
that defendant No. 2 and plaintiff had full knowledge of the accounts and the amount
fixed is quite substantial and represent their investment in the business any such omission
can have no far-reaching effect on the validity of the dissolution of partnership between
the parties.

21. In my opinion, for the same reason, the fact that no separate amount was fixed for the
goodwill and the trade marks of the business can have no adverse effect on the
dissolution effected by the parties. Ire the dissolution deed itself the plaintiff and
defendant No. 2 have stipulated to relinquish all their rights in the good will machinery,
trade marks and other assets of the firm in consideration of the said amount paid to them.

Page No. 10 of 16
It, therefore does not lie is their mouth to make any grievance about it. This is not an
unusual term and much fettish cannot be made out of this circumstance. The terms of the
dissolution deed in this respect are such that they cannot be considered as unreasonable
unless it was shown that they were based on concealment of facts, In this connection
learned counsel appearing for the plaintiff brought it to my notice that after Martial Law
was promulgated in Pakistan defendant No. 1 had filed a declaration under the Martial
Law showing profits of over a lac of rupees earned by the firm which was not accounted
for in the account books or statement of accounts submitted to the Income-tax
Department.

Learned counsel, however, overlooked the fact that this related to the entire period of the
partnership business, that is to say, from 1951 to 1,958. Besides, this was done in
pursuance of a concession granted by the Martial Law Authorities and the defendant No.
1's explanation that he did so because he wanted to protect the business from the
misdeeds of the plaintiff and defendant No. 2, who bad not disclosed the profits earned by
them in the shape of hire money and commission earned cannot be lightly disregarded. It
is in evidence that by getting a fresh declaration defendant No. 1 had not to pay much to
the Income-tax Authorities. The plaintiff has not produced any evidence to show that she
or her father had filed separate return for such earning. In these circumstances, this
circumstance by itself cannot lead to the inference that the plaintiff or defendant No. 2
had no knowledge or were not fully conversant with the accounts of the firm or have been
kept in complete darkness about it.

22. It was next contended that Defendant No. 2, who was in charge of the accounts of the
factory at the time of dissolution did not disclose the details of the ready machines lying
there and thus concealed the property belonging to the partnership. This contention has
also no force. The plaintiff has not brought any evidence on the record showing the
existence of any such manufactured articles at the time of the dissolution. Defendant
Usman denied this allegation. He stated that whatever goods were moulded in the
workshop were brought to the shop for finishing and were sold at that place. I see no
reason to disbelieve him on this point. After all Haji Abdul Karim is a shrewd
businessman. He used to maintain account of every panny spent in the factory. It is
difficult for me to believe that he had no information about the machines produced or
moulded at the workshop or that defendant Usman in this respect gained any undisclosed
advantage over the plaintiff or her father. Bare allegation of the plaintiff in this respect
cannot carry much conviction. I would, therefore, attach no importance to it.

23. Learned counsel then referred me to certain other circumstances for showing that the
plaintiff's right in the partnership business suffered because defendant Usman had not
disclosed to them the benefits and advantage that were likely to be received by the
partnership in the near future about the time of dissolution. In this connection plaintiff's
counsel referred to the statement of defendant Usman in which he admitted that, after a
month of the dissolution of the partnership, the quota of the licences granted by the
Government to the business firm was raised. He further referred me to the fact that the
shop and the business premises in which the partnership firm used to carry on its business
was transferred to defendant No. 1 under the Displaced Persons Compensation Act and in
this way he managed to gain undue advantage over the plaintiff and her father. In my
opinion, none of these circumstances has any material bearing on the facts of the present
case. If the amount of the licenses had been increased before the dissolution and that had
not been brought to the notice of the plaintiff and defendant No. 2 it might have been a
good ground to advance the argument that the plaintiff's right in that respect was
prejudiced. Neither defendant had any control in the policy of the Government in
granting licences nor did he have any control on the legislative power of Government.
The change in the policy of the Government for granting licence was made later on. In
the same way the business premises which was transferred to defendant No. 1 was on the
basis of a legislation which came into force much after the dissolution of the partnership.
No blame on that account can therefore be thrown on defendant No. 1. The plaintiff
counsel claimed that she being a woman could not be expected to be in full know of the
partnership and deserved special consideration. He contended that in this case the onus
should he on Defendant No. 1 to establish that the document in question is a valid one.

Page No. 11 of 16
24. In support of his contention that the plaintiff being a woman is entitled to special
consideration and protection Mr. Khalilur Rahman, counsel appearing for the plaintiff,
has relied on some case-law on the subject. He referred me to the following decisions :-

Poosthurai v. Kanappa Chettiar and others A I R 1920 P C 65.

Chainta Dasya v. Bhalku Das A I R 1930 Cal. 591.

Qamar Ara Begum v. Sultan Begum and others A I R 1930 Oudh 131.

Mst. Anupa Bai wife of Gorelul Kirar v. Bhagwant Singh and others A I R 1938 Nag.
470.

Tungabhai Bhratar Purushottam Shamji Kambhajkav v. Yeshwant Dinkar Jog and another
A I R 1945 P C 8.

Ram Kalap Pande v. Bansidhar and another A I R 1947 Oudh 89.

Thangachi Nachial and another v. Ahmed Hussain Malumiar and others A I R 1957 Mad.
194.

Most of the decisions deal with cases in which pardanashin ladies executed some deed or
instrument of agreement and have no direct bearing on the facts of this case. But there
Ore certain general principles discussed in them which are applicable to cases other than
pardanashin ladies. The general principle deduced from them is that in some of these
decisions it was held that there are three ingredients in the definition of "undue influence"
in section 16 of the Contract Act. Firstly, the relations subsisting between the parties
should be such that one of the parties is in a position to dominate the will of the other.
Secondly, that the dominate party obtains an unfair advantage over the other and thirdly,
that the dominate party uses his dominate position to obtain that unfair advantage. It was
further held that although these are the three ingredients constituting undue influence, the
party who pleads undue influence has in the first instance to prove only the first and
second ingredients. When a person is proved to be in a position to dominate the will of
another and the transaction appears on the face of it or on the evidence adduced, to be
unconscionable, the onus of proving the absence of the operation of the third factor lies
on the dominant party. It was held in some cases that if an elderly aged person who is
found to have divested himself or herself of valuable property for the benefit of someone
in close communion with the transferee the Court will protect the interest of such person,
where the person concerned, besides being aged is a woman, the need for protection is
greater. In cases where the woman is a pardanashin lady and illiterate the need for
protection is greatest. Lord Goddard Tungabi Bhrarar Purushotam Shamji Kumbhojkav v.
Yeshvent Vinkar Jog and another (AIR l945PC8) extended this principle to a case in
which the facts show that the circumstances are such that undue influence can fairly be
inferred. In Chainta Dasysa v. Bhalkudas (AIRI920Cal.591) it was observed that there is
no reason why a rule which is applicable to the pardanashin ladies should not apply to the
case of a poor woman who is equally ignorant and illiterate and is not pardanashin simply
because she does not belong to that class.

25. Unfortunately in the present case, the plaintiff has not been able to establish that the
relationship that existed between the parties was such that Defendant No. 1 was in a
position to dominate the will of the plaintiff or her father. I have already found that the
allegation of the plaintiff that Defendant No. 2 was seriously ill at the time when the
transaction in question took place cannot be believed. This version is unsupported by any
reliable evidence. Besides, under the terms of the partnership deed, defendant No. 2 had
to maintain the accounts. In fact he held both financial and managing control in the
partnership business. Defendant No. 1 was only an outdoor worker and was looking only
to the technical side of the business. It cannot therefore be said that he could dominate the
will of the plaintiff or her father. In the same way there is nothing on the record to prove
that defendant No. 1 bad obtained any unfair advantage over the plaintiff or defendant
No. 2. In fact defendant No. 2 in the plaint of the suit filed by him (Exh. D/1) presented
on 8th February 1960. which was withdrawn later on, admitted in para. 2 of the plaint
that he and Aisha Bait the plaintiff. had withdrawn from the partnership and Defendant

Page No. 12 of 16
No. 1 had become the sole proprietor of Salika Sewing Machine Company. It is in
evidence that after the dissolution deed was effected between the parties, late Mr.
Liaquatullah Qureshi, counsel for the plaintiff, notified on behalf of the plaintiff and her
father in the issue of Dawn dated the 11th March 1958 about the dissolution of
partnership for information of the general public. Exh. D/2 1, D/6 and D/18 are public
notices which were published in the issue of Dawn dated the 11th March 1958. Exh. D/21
is the public notice which was published under the instructions of plaintiff and Defendant
No. 2 by late Mr. Liaquatullah Qureshi. Similarly, on 10th October 1956, the plaintiff
along with her father wrote letter dated 10th October 195'3 (Exh. D/8) to the Income-tax
Department admitting that the dissolution of the partnership business had taken place and
informing the department that in future the defendant No. 1 would be responsible for
payment of all income-tax liabilities. As late as in the year 1963 the Income-tax adviser
of the plaintiff and defendant No. 2 wrote two separate letters Exh. Y/3 and Y/4 dated the
4th April 1963, to the Income-tax Department

informing them that the Income-tax liabilities of the partnership business were on
defendant No. 1 and all arrears should be recovered from him. In the face of such
documentary evidence it is difficult to believe that the dissolution deed was the result of
any undue influence, coercion and misrepresentation of facts. In my opinion, it was a
straightforward deal. The plaintiff along with defendant Nos. 1 and 2 entered into this
transaction in the ordinary course. She had the advantage of seeking advice of her own
counsel, who filed the present suit. The mere fact that no accounts were examined or
stock was checked immediately before the dissolution was effected is not such a
circumstance which can lead to we irresistible inference that it was due to any unfair
advantage gained by Defendant No. 1. According to the terms of the Dissolution Deed the
amount of rupees one lac five thousand was fixed on the basis of mutual offer and
bargain. The version of defendant No. 1 that plaintiff and defendant No. 2 offered him its.
25,000 and in return demanded their investment in the business appears to be fully
supported by Document Exh. P. W. 1/5, dissolution deed and other independent evidence.
I am not in the least impressed by the allegation that defendant No. 1 has been laying a
trap for plaintiff and her father or that he took unfair advantage of the illness of her father
or gave a gloomy picture of the business. The evidence led by the parties gives a clear
impression that both plaintiff and her father are shrewd businessmen and were in full
control of the business. They knew their rights in the business and on a former occasion
did not hesitate to rush to the Court to protect their interest. In my view the bargain struck
between the parties can by no strength of imagination be considered to be an unfair deal.
It is therefore not one of those cases in which the plaintiff deserved any special
consideration or protection of her interest by reason of being a helpless woman. It seems
to rite that the general principles discussed earlier has no application to cases in which
literate women are found to have full business aptitude and capacity to look after their
interest.

25. Mr. Khalilur Rehman further relied on a decision of the English Court of Appeal Law
v. Law ((1905)1 Ch. D 140). In that case it was held that in a transaction between
co-partners for the sale by one to the other of a share in the partnership business, there is
a duty resting upon the purchaser who knows, and is aware that he knows, mere about the
partnership accounts than the vendor, to put the vendor in possession of all material facts
with reference to the partnership assets, and not to conceal what he alone knows; and
that, unless such information has been furnished, the sale is voidable and may be set
aside. Learned counsel further relied on the Commentary of Lindley on Partnership. The
learned author at page 516 of the 12th Edition of the book has stated as under :-

"Notwithstanding the inability of a retiring partner, and of those claiming under him, to
avoid an agreement fairly come to between him and his co-partners, the good faith and
open dealing which on- partner has a right to expect from another never require to be
more scrupulously observed than when one of them is retiring upon terms agreed to upon
the strength of representations as to the state of the partnership accounts; and an
agreement entered into on a dissolution will be set aside if it can be shown to have been
based upon error or to have been of concealment of the truth."

No one can dispute these propositions of lass. But it depends o the fact of each case. The
question is whether any such duty rested on Defendant No. 1. As discussed earlier the

Page No. 13 of 16
plaintiff has not been able to bring any facts or circumstances on the record to establish
that defendant Usman had any knowledge about the partnership business which was not
within the knowledge of the other partners. The defendant No. 2 was incharge of the
accounts' and had full knowledge of the business of the firm. Plaintiff is hiss daughter and
admittedly is residing with him and looking after him. I have noted her demeanour in the
witness box. She is a literate lady and appears to be very clever and knows very much
about commercial dealings. In this connection Mr. Ghani referred ma to two documents
Exhs. D/1 and D/2 dated .the 29th October 1957, and 11th December 1957 respectively.
These two documents show that the plaintiff has been advancing considerable amount to
the partnership for releasing the goods which were imported from Japan on condition that
the goods were to remain in her custody and could be released only after the payment had
been made by the partnership business. The plaintiff was to charge 5 per cent. as
commission on these transactions. Under Exh. D/1 she advances Rs. 13,500 on the
following condition:

“Received Rs. 13,500 (rupees thirteen thousand five hundred only) from Aisha Bai Abdul
Karim today. The said sum of money will be invested for releasing the goods which have
been arrived from Japan. The goods will remain in the custody of Aisha Bai Abdul Karim
and whenever the Company made payment with commission charges at 5 % the delivery
of the goods will be given."

On the same terms she advanced Rs. 14,000 under Exh. D/2. Thus it will be noticed that
the plaintiff was dealing with the partnership business like any other businessman and her
contention that she had no knowledge of the business appears to be without any
substance.

27. After carefully considering the evidence of the parties, I am satisfied that the
allegation of the plaintiff that defendant No. 1 took advantage of her ignorance of the
affairs of the business or of her father's serious illness or created fear in their minds and
obtained the deeds of dissolution in such circumstances has no basis whatsoever. In my
view the plaintiff and defendant No. 2 were fully aware of the accounts and stock of the
business and defendant No. 1 had not in the least gained any unfair advantage under the
above-mentioned deed from them. The grievance of the plaintiff that she had not been
paid the accumulated profit or that nothing was paid to them about the goodwill, licence,
trade marks, etc. is also without substance. The plaintiff and her father, defendant No. 2
were not ignorant about the condition of the business. It was for them to demand the
value of the above-mentioned benefits attached to the business. They did not choose to do
so. It is, therefore, not open to them after, entering into a solemn agreement, to blame
defendant No. 1 for it. Even according to Mr. Khalilur Rehman, plaintiff and defendant
No. 2 were entitled to not more than one lac 23 thousand rupees. The fact that they have
been paid one lac 10 thousand shows that defendant No. 1 had not gained any unfair
advantage over them by exclusively getting the business in dispute.

28. It was next contended by learned counsel for the plaintiff that the plaintiff was not
paid any amount out of the one lac 5 thousand-paid at the time of the dissolution of the
deed. The plaintiff received this amount jointly with her father, defendant No. 2. They
executed joint receipt in favour of defendant No. 1. It is in evidence that this amount was
deposited in the account of defendant No. 2 in Eastern Bank. The plaintiff was therefore,
herself responsible for keeping this amount with her father. If she had any grievance
against her father in this respect it was open to her to claim her share out of this amount
from her father, defendant No. 2. It is, however, impossible for me to believe that her
father has also played fraud on her. At the time of the institution of the suit and at the
final hearing of the case in this Court the plaintiff was living with her father. The ordinary
presumption, therefore, would be that the plaintiff and her father have settled between
themselves and her share in the business was paid to her. I find no substance in this
argument of the learned counsel for the plaintiff.

29. The evidence produced on behalf of defendant No. 1 leaves no doubt in my mind that
he has, after the dissolution, considerably expanded the business of Salika Sewing
Machine Co. It is in evidence that he has installed a big factory in S. I. T. E. He has also
invested further money in the business. It is further in evidence that be has also taken his
son as a partner in the said business. In these circumstances, it would be too hard and

Page No. 14 of 16
most unjust if defendant No. 1 is deprived of his fruits after a lapse of such a long time. It
will be noticed that tide dissolution took place in March 1958, and the plaintiff filed the
suit on 3rd March 1961, the last date of limitation. I find much force in the contention of
Mr. Ghani that in such circumstances even if the grievance of the plaintiff is found to be
genuine she cannot be given any relief by this Court. In this connection learned counsel
referred me to two English decisions. In United Shoe Machinery Co. of Canada v. Brunet
and others (1909 A C 330) the Privy Council in a case for injunction and damages held
that, as the respondents had not repudiated the leases after discovery of the alleged false
representations, but had continued to work the demised machines and paid the royalties
reserved, they had elected to treat the leases as subsisting, and could not afterwards avoid
them. In this connection their Lordships observed as under:-

"A contract into which a person may have been induced to enter by false and fraudulent
representation is not void, but merely voidable at the election of the person defrauded,
after he has had notice of the fraud. Unless and until he makes his lection, and by word or
act repudiates the contract, or expresses his determination not to be bound by it (which is
but a form of repudiation), the contract remains as valid and binding as if it had not been
tainted with fraud at all : Clough v. London and North Western Ry. Co. (I) approved by
Lord Blackburn in Earlanger v. New Sombrero Phosphate Co. (2) and by Lords Watson
and Davey in Aaron's Reefs v. Twiss (3). In the first mentioned case Mellor, I. says (4):
"The principle is precisely the same as that on which it is held that the landlord may elect
to avoid a lease and bring ejectment, when his tenant has committed a forfeiture. If with
knowledge of the forfeiture. he, by the receipt of rent or other unequivocal act, shos his
intention to treat the lease as subsisting, fee has determined his election for ever, and can
no longer avoid the lease."

In Thomas Clarke v. Samuel Auchmuty Dickson, John Williams and Thomas Gibbs (120
E R 463) it was held that a person induced by fraud to enter into a contract under which
he pays money may, at his option, rescind the contract and recover back the price, as
money bad and received, if he can return what he has received under it: But, when he can
no longer place the parties in status quo, as if he has become unable to return what he has
received in the same plight as that in which he received it, the right to rescind no longer
exists: and his remedy must be by an action for deceit, and not for money had received.

30. Similarly in the Sheffield Nickel and Silver Plating Company, Limited v. Unwin
((1877) Q B D 214) a Company after a lapse of a long time claimed to set aside the
resolution and enforce the guarantee, on the ground that the defendant had fraudulently
misdescribed the property sold by him. It was held that assuming that the resolution had
been passed in consequences of fraudulent misrepresentations on the part of the
defendant, his position had been so far changed that it was too late for the company to
repudiate their contract. In the light of the above discussion on this ground also the
plaintiff is not entitled to any relief on the facts of the present case, My findings,
therefore, on the issue are as under:-

Issue No. 6.-In the negative.

Issue No. 7(a) and (b).-In the negative.

Issue No. 8.-In the affirmative.

Issue No. 9.-In the affirmative.

Issue No. 10.-In the affirmative.

31. In the result, I would hold that the Plaintiff is not entitled to any relief in the suit filed
by hiss. I would, therefore, dismiss it with costs.

K. B. A.

Suit dismissed.

Page No. 15 of 16
P L D 1966 Azad J & K 31

Before Muhammad Sharif, A. C. J. and S. Yar Muhammad Khan, J

AZAD J. & K. GOVERNMENT-Appellant

versus

Sayed MOHAMMAD YOUNIS SHAH GILLANI-Respondent

Civil Anneal No. 25 of 1964, decided on 19th May 1965.

(a) Civil Procedure Code (V of 1908), O. XLII, r. 2 read with O. XLI, r.


1-Appeal-Memorandum of appeal must accompany copy of judgment appealed from-No
specific order of appellate Court dispensing with such production appearing from
record--Appeal, unaccompanied by copy of judgment, in circumstances, held not
competent.

(b) Civil Procedure Code (V of 1908), S. 96 (1)-Appeal Jurisdiction-Value of suit for


purposes of jurisdiction exceeding Rs. 2,500-Azad J. & K. High Court Rules enjoining
presentation of appeal in such cases to High Court-District Judge, nevertheless,
entertaining memo. of appeal: and finally deciding same-Decision of District Judge, held'
a nullity.

(c) Civil Procedure Code (V of 1908) O. VI, r. 17-Amendment of plaint-Valuation of


suit for purposes of jurisdiction not fixed in plaint but subsequently fixed with permission
of Court-Such amendment, being authorised, cannot be ignored.

(d) Court' Fees Act (VII of 1870), S. 7 (xii) read with Sch. II, Art. 17 - Declaratory suit -
Plaintiff alleging that the order terminating his services, being against law and Police
rules, was void and inoperative and he continues to hold his post-Suit, held, one for
declaration only, without any prayer for consequential relief-Plaintiff entitled to fix any
value for purposes of jurisdiction.

Commissioner of Income-tax v. Nanhelal A I R 1928 Nag. 241; Kamla Prasad and


another v. Jagarnath Prasad A I R 1931 Pat. 78; Kalu Ram v. Babu Lal and others A I R
1932 All. 485; Bidhu Bhusan Bakshi v. Kala Chand Roy A I R 1927 Cal. 775; Province of
East Pakistan v. K. A. Mansur P L D 1963 Dacca 21.1; Province of East Pakistan v.
Golam Sarwar P L D 1962 Dacca 557; Habib Khan v. Federation of Pakistan P L D 1954
Sind 199; High Commissioner for India and High Commissioner for Pakistan v. I. M.
Lall P L D 1948 P C 150; Sardar Muhammad v. Pakistan P L D 1961 Kar. 232; Abdul
Hanif v. Abdul Haque P L D 1961 Dacca 191 and Muhammad Wafati v. Federation of
Pakistan P L D 1956 Kar. 464 ref.

M. A. Hafeez for the State.


B. A. Farooqi for Respondent.

ORDER

MUHAMMAD SHARIF, A. C. J.-This is a second appeal against the appellate


judgment and decree of the District Judge, Muzaffarabad, dated 20-10-64 by which the
judgment and decree of the Court of the Additional Sub-Judge, Muzaffarabad, dated
11-12-63, was upheld.

The facts giving rise to this second appeal are that the plaintiff was An Assistant
Sub-Inspector of Police since 20-4-48 but the Inspector-General of Police by order dated
9-12-58 terminated his service treating him as a probationer and discharged him from the
post of A. S. I. with effect from 7-12-58. The plaintiff instituted a suit in the Court of the
Additional Sub-Judge, Muzaffaranad, on 17-7-61 for a declaration that the order of the
Inspector-General of Police No. O. B. 455 dated 9-12-58, being against law and the
Police Rules, was void and inoperative as against the rights of the plaintiff and that the
plaintiff still continues to bold the post of an Assistant Sub-Inspector of Police. The suit

Page No. 1 of 5
was contested on behalf of the Government. The learned trial Judge framed the following
issues:-

(1) Whether the plaintiff remained as a permanent A. S. I. of Police w.e.y.


20-4-1948 till 9-12-1958? (O. P. P.)

(2) Whether after the lapse of 3 years of service from its very start, i.e. after the
expiry of probation, the plaintiff's service turned to have been permanent and he
could not be ousted under Law? (O. P. P.)

(3) Were the services of the plaintiff temporary from the very beginning and he
despite clear instruction of 2-10-1950 did not go through the training and further
was also found unsuitable for service by the Medical Board and as such his
removal by an order dated 9-12-1958 was justifiable and correct? (O. P. D.)

(4) Lastly, to what relief if any, is the plaintiff entitled? (O. P. D.)

The learned Sub-Judge by his judgment and decree dated 11-12-63 decreed the plaintiff's
suit. The defendant then went up in appeal before the District Judge; Muzaffarabad, who
by his judgment and decree dated 20-10-64 dismissed the appeal with costs. The
Government has now come up in second appeal before this Court.

The learned counsel for the plaintiff-respondent had raised the following two preliminary
objections on 24-3-64. The learned counsel for the defendant-appellant wanted time to
study the points and make a reply. Arguments were heard yesterday and supplementary
arguments were heard even to-day.

The first preliminary objection was that the memorandum of appeal filed in the High
Court was not accompanied by a copy of the judgment of the trial Court which was
necessary and the appeal is not complete and, therefore, incompetent. The second
preliminary objection was that the value for purposes of jurisdiction had been fixed at Rs.
4,000, therefore, the first appeal should have been filed in the High Court but it was filed
in the Court of the District Judge; and that the present, appeal has been filed against the
judgment And decree not of the first Court but of the lower appellate Court; and that the
judgment and decree of the lower appellate Court being without jurisdiction has no
existence m law and an appeal from such judgment and decree does not lie.

As regards the first preliminary objection the reply of the learned Government Advocate
is that a copy of the judgment of the Court of the first instance is not required at all and
even if it is required by law, his position is that he had applied for a copy of the judgment
but had not been supplied with one so far. He has referred to Order XLI, rule I, C. P. C.
which provides that the memo. shall be accompanied by a copy of the decree appealed
from and (unless the appellate Court dispenses therewith) of the judgment on which it is
found. This provision relates to appeals from original decrees. The learned Government
Advocate has also referred to Order XLII, rule 1, C. P. C. which provides for an appeal
from appellate decree and reads as under:-

"The rules of Order XLI shall apply, so far as may be to appeals from appellate
decrees."

Reading Order XLI, rule 1 and Order XLII, rule 1 together tile learned Government
'Advocate has argued that it is only the copy of the decree appealed from which is a must
and a. copy of the judgment also unless dispensed with by the appellate Court but this is
not the correct legal position. We adapted the Civil Procedure Code as it applied to West
Pakistan in 1948 and it continues to remain in force so far. In West Pakistan Rule 11 had
been added to Order XLII which is reproduced below:-

"In addition to the copies specified in Order XLI, rule 1, the memo of appeal shall
be accompanied by a copy of the judgment of the Court of first instance, unless
the appellate Court dispenses therewith."

Page No. 2 of 5
So according to the law prevailing in West Pakistan on the date of adaptation by Azad
Kashmir the memorandum of a second appeal was to be accompanied not only .by a copy
of the judgment and decree of the lower appellate Court but also by a copy of the
judgment of the Court of first instance unless the appellate Court dispensed therewith.
The learned Government Advocate has, put down in the memo of appeal towards its end
that an application for obtaining copies of the judgment and decree of the Court of the
Additional Sub-Judge, Muzaffarabad, has been made and the same shall be submitted
when supplied. The learned Government Advocate on 5-12-64 presented the memo of
appeal in the High Court but the copy of the judgment of the Court of the first instance
had not been supplied so far. It cannot be said that the Court had dispensed with this copy
because there is no such order. The memo of appeal had been accepted subject to the
learned Government Advocate supplying the copy of the judgment of the Court of the
first instance. We hold that in view of the clear provisions of rule 11 to Order XL1I, C. P.
C. the memo. of appeal should be accompanied by a copy of the `` judgment of the Court
of the first instance and the appeal would not be complete without such copy. We have
come across an application made by the learned Government Advocate on 11-12-1964 for
obtaining copies of the judgment and decree of the Court of the Additional Sub-Judge in
the case "Sayed Mohammad Younis Shah Gillani v. Azad Government of the State of J. &
K." On the back of this application there is an endorsement dated 16-12-64 that the copy
had been prepared and banded over under rules. This application has been placed on the
file of the lower appellate Court. However, the contention of the learned Government
Advocate is that he has not been 1 supplied with the copy so far. If his contention is
accepted to be true or proves out to be true, the position would be that the appeal is not
yet complete and we cannot go into the merits of the case, Further it depends upon our
decision on the second preliminary objection whether we .should keep the appeal pending
or dispose it of.

Now we take up the second preliminary objection. It is not disputed that where the value
for purposes of jurisdiction exceeds Rs. 2,500 the first appeal would lie in the High Court
and not in the District Court. The learned Government Advocate tried to wriggle out of
this position by saying that the value for purposes of jurisdiction had not been fixed in the
plaint when it was first instituted; and that in spite of an objection taken by the
Government pleader in his written statement that value had not been fixed for purposes of
court-fees and jurisdiction purposes, no issue was struck by the trial Court and no action
taken in this respect. Issues were struck on 9-11-61 and the case was adjourned to
10-1-1962 for the evidence of the plaintiff. From 10-1-62 the case was adjourned to
12-3-62 and then again to 24-5-62 and again to 6-8-62 because the witnesses could not be
served. Sometime after 24-5-62 arid before the case was taken up on 6-8-62 a Clerk of
the Court appended a note on the file that the valuation for purposes of a court-fee and
jurisdiction had not been fixed in the plaint which was a necessity though this thing
should have been pointed out by the Office at the time of the presentation the `Kafiat
Sarishta'. However, the learned Sub Judge drew the attention of the counsel for the
plaintiff towards this note and he admitted it to be correct and prayed for making the
necessary correction which was allowed to be done and the file was ordered to come up
on 1-10-1962. The order dated 1-10-1962 records that the amended plaint had not been
filed. Another adjournment was granted till 22-10-1962. A further adjournment was
granted till 5-11-62. The order dated 5-11-62 recites the presence of the counsel for the
plaintiff and the Clerk of the counsel for the defendant and records that the plaintiff's
counsel had made the correction in para. 7 of the plaint in the presence of and With the
permission of the Court. The witnesses were then ordered to be summoned again. The
learned Government Advocate has referred to an unreported Division Bench judgment of
this Court which is Civil Appeal No. 4 of 1963 "Matrvali Khan v. Shah Zaman and
others", date of institution 25-4-63, date of decision 3-4-64. This judgment was delivered
by the same Bench that is hearing the present appeal and we held therein that in a. case
governed by section 7 (iv) (c) of the Court Fees Act that is where the suit is one for a
declaration with consequential relief, it is the value fixed by the plaintiff for' purposes of
court-fee that determines the value for purposes of jurisdiction also and not vice versa.
We had in the unreported judgment also ignored a certain amendment made by the
plaintiff to the plant enhancing the value for purposes of jurisdiction. The learned
Government's contention is that in the present case before us too it should be held that the
amendment made by the plaintiff in the plaint incorporating the value for purposes of
jurisdiction is to be ignored. The facts of the two cases are different. In the unreported

Page No. 3 of 5
judgment referred to above we had ignored the amendment enhancing the value for
purposes of jurisdiction because this amendment had not been applied for and had not
been authorised by the trial Court, but in the present case before us the amendment about
incorporating the value for purposes of jurisdiction was the amendment sought for and
allowed, therefore, this amendment cannot be said to be un-authorised and cannot be
ignored.

The learned Government Advocate has argued that the plaintiff in his plaint has made two
claims, one that the order of the Inspector-General of Police is void and inoperative and
the second that the plaintiff continues to hold the office of an Assistant Sub-Inspector of
Police. His contention is that the first prayer should be taken to be a declaration and the
second to be a consequential relief. It has been argued in reply by Mr. Farooqi, learned
counsel for the plaintiff -respondent that both the prayers are for a declaration and that
none of these prayers can be termed to be a consequential relief. His contention is that the
suit is pure and simple for a declaration and not for a consequential relief, therefore, it
was open to the plaintiff to pay a fixed court-fee of Rs. 10 and to fix any value for
purposes of jurisdiction that he deemed fit. The learned Government Advocate has cited
A I R 1928 Nag. 241 (1), A I R 1931 Pat. 78, A I R 1932 All. 485 and A I R 1927 Cal.
775. The learned counsel for the respondent cites Province of East Pakistan v. K. A.
Mansur (P L D 1963 Dacca 211), Province of East Pakistan v. Golam Sarwar (P L D 1962
Dacca 557) in which have also been discussed Habib khan v. Federation of Pakistan (P L
D 1954 Sind 199), High Commissioner for India and High Commissioner for Pakistan v.
I. M. Lall (P L D 1948 P C 150), Sardar Muhammad v. Pakistan (P L D 1961 Kar. 232.),
Abdul Hanif v. Abdul Haque (P L D 1961 Dacca 191) and Muhammad Wafati v.
Federation of Pakistan (P L D 1956 Kar. 464).

It was held in A I R 1928 Nag. 241 (1) that:-----

"Where the plaintiff's case was that he was the next heir to an inalienable estate
which the then holder was about to sell for Rs. 40,000 and he prayed for a decree
in the form of a declaration that would prevent him from doing so, the Court-fee
payable for such a claim was the ad valorem fee for that sum."

It was held that this was not a case of a mere declaration brought by reversioners against
Hindu widow but the claim here was much more inasmuch as it was sought to prevent the
present holder from alienating the property. We agree that the claim for preventing the
holder from alienating the estate was a consequential relief though couched in the form of
a declaration. It was laid down in A I R 1931 Pat. 78 that:----

"The substance of the plaint and not merely the exact relief ask for, has to be looked into
in order to determine the court-fees payable on the plaint. If in the substance the plaintiffs
ask for a cancellation of a deed or gift, they ask for a declaration with consequential relief
and the case clearly falls under section 7 (iv) (c) of the Court Fees Act."

There can be no dispute with the rule of law laid down in this case. It was laid down in A
I R 1932 All. 485 that:-

"The Court has to see what is the nature of the suit and of the relevant claim,
having regard to the provisions of section 7 of the Court Fees Act."

It was laid down in A I R 1927 Cal. 775 that:-

"Where in reliefs appear on their face to be of a declaratory nature, but they are
really consequential ones, ad valorem court-fees must be paid."

We have to see if the reliefs sought by the plaintiff amount to a declaration and the
consequential relief or are merely of a declaratory nature. The cases cited by the learned
Government Advocate do not help us in determining this question.

In P L D 1963 Dacca 211 the plaintiff brought a suit for a declaration that the
Government Orders Nos. 49 and 50 dated 5th January 1957, removing the plaintiff from
the post of professor of Pathology, Dacca Medical College are illegal, inoperative and not

Page No. 4 of 5
binding upon him and the plaintiff is still in service as professor of Pathology in the
College. This is a case where the declaration sought was similar to the declaration sought
by the plaintiff in the present case before us. This case was treated as for a simple
declaration. In P L D 1962 Dacca 557 the facts were that the plaintiff brought a suit for
declaration that the order of dismissal of the plaintiff from service is illegal, void and
inoperative and that the plaintiff still holds office as a Sub-Inspector of Police. It was
argued that the suit was for a mere declaration and could not proceed without prayer for a
consequential relief. The Division Bench of the Dacca High Court that the suit for mere
declaration without prayer of consequential relief was maintainable and the grant of
declaration was discretionary with the Court decided it. The two famous cases of I. M.
Lall P L D 1948 P C 150 and Habib Khan v. Federation of Pakistan were relied upon in
this case. In this case the plaintiffs sought the same declaration that Sayed Mohammad
Younis Shah is seeking in the case before us with the only difference that the plaintiff in P
L D 1962 Dacca 557 was a Sub-Inspector of Police while the plaintiff in the present case
before us is an Assistant Sub-Inspector of Police. Objection was raised in this case that
the suit in which these two prayers had been made was for a mere declaration and could
not proceed without a consequential relief but the Court held that the suit could proceed.
This case shows that wherein a suit the plaintiff seeks the declaration that the order of his
dismissal is void and inoperative and ineffective and that he continues to hold office is a
suit for mere declaration and not a suit for declaration and consequential relief. P L D
1956 Kar. 464 was also a case where the plaintiff sought a declaration that the plaintiff's
dismissal was void and inoperative and was no dismissal at all and that he continued in
service. It was held that no consequential relief arose and the suit was maintainable in the
form of a declaration.

The cases cited by the learned counsel for the plaintiff respondent are on all fours with
the case before us. We have no hesitation in holding that the plaintiff's case is for a mere
declaration and not for a declaration with consequential relief. Therefore, our unreported
judgment "Matwali Khan v. Shah Zaman Khan and others" relied upon by the learned
counsel for the defendant-appellant does not apply. We hold that the plaintiff-
respondent's suit is for a mere declaration and the plaintiff was free to fix any value for
purposes of jurisdiction as he liked because the relief claimed by him could not be
assessed to value. The net result is that the value for purposes of jurisdiction being Rs.
4,000 the first appeal lay in the High Court and not in the District Court.

We have held above that the first appeal lay in the High Court and not in the District
Court, therefore, the judgment and decree of the District Judge is a nullity and
non-existent in the eye of law and an appeal filed from such judgment and decree also is
without any force.

It was next urged by the Government Advocate that even if it be held that the first appeal
was not competent before the District Judge, the present appeal may be treated as an
appeal against the judgment and decree of the Court of the first instance but our difficulty
is that there are no copies of the judgment and decree of the Court of the first instance
before us, therefore, we cannot treat the present appeal as an appeal from the Court of the
first instance. The memorandum of appeal is accordingly rejected. In view of the fact that
the plaintiff had acquiesced in the proceedings before the lower appellate Court and had
raised no objection that the lower appellate Court had no jurisdiction, we leave the parties
to bear their own costs of the appeals.

S. A. H. Memo. of appeal rejected.

Page No. 5 of 5
P L D 1965 Dacca 439

Before K. M. Hasan, A. Sattar and A. M. Sayem, JJ

DAIBAKILAL BASAK-Petitioner

Versus

IQBAL AHMED QURAISHI AND ANOTHER-Opposite-Parties

Civil Rule No. 727 of 1961, decided on 21st August 1964.

(a) Specific Relief Act (I of 1877),

S. 39-Suit for mere declaration that document is void ab initio and of no legal
effect-Court while granting declaration not bound also to order cancellation of document
unless such further relief specifically prayed for by plaintiff-Plaintiff to pay ad valorem
court fees for relief of cancellation which is consequential relief within meaning of S. 7
(iv) (c), Court-Fees Act (VII of 1870). [pp. 443, 450, 452, 458]A, B, D, E & F

(b) Specific Relief Act (I of 1877),

Ss. 42 & 39 and Court--Fees Act (VII of 1870), S. 7(iv)(c) & Sch. II, Art. 17(iii)Suit for
bare declaration that document was forged void ab initio and of no legal
consequence-Court-fees payable on such suit under Art. 17(iii), Sch. II of Court-Fees
Act--Suit whether falls under S. 42 or S. 39 of Speck Relief Act, 1877-Plaintiff not
necessarily to pray for consequential relief by way of cancellation of document-Plaintiff
cannot be held to have made such a prayer by necessary implication.

In a declaratory suit, the plaintiff, asserting possession through tenants, alleged that
certain registered documents purporting to have been executed and registered by him,
were really executed by another person falsely personating as the plaintiff and prayed
for declaration:

"(a) that the documents as described in the Schedule "A" below are void ab initio and that
the defendants have acquired no interest in the suit premises by virtue of the aforesaid
documents;

(b) that the documents mentioned in the Schedule "A" below have been brought into
existence by forgeries and false personations and that no consideration did pass by the
said documents."

The plaintiff had valued the suit for the purposes of jurisdiction at Rs. 30,000 and had
paid a fixed court-fee of Rs. 20 claiming the suit to be for a simple declaratory decree to
which the provision of Article 17(iii) of the Second Schedule to the Court-Fees Act, 1870
applied. The trial Court, however, took the view that had the relief asked for ended with
the first part of prayer (a) namely, for a declaration that the documents in question were
void ab initio, the plaintiff would have been entitled to pay a fixed court-fee of Rs. 20
under Article 17(iii) of the Second Schedule to the Court-Fees Act. But, according to the
trial Court, the second part of the prayer (a), namely, for a declaration that the defendants
had acquired no interest -in the premises in question by virtue of the said documents,
coupled with prayer (b), took the suit out of the category of simple declaratory suits and
placed it in the category in which court-fee is payable under section 7(iv)(c) of the
Court-Fees Act, i.e., it was a suit for a declaratory decree where consequential relief is
prayed for. The Court, therefore, directed the plaintiff to pay ad valorem court-fee under
that section. The plaintiff thereupon moved the High Court in revision. The matter was
placed before a Division Bench and the Division Bench referred the case to the Full
Bench, formulating the following questions:-

(1) In a suit for a declaration that certain document was void ab initio as it was not
executed by the plaintiff but executed by somebody else by falsely personifying him to be
the executant and as such the document did not affect the right, title and interest of the

Page No. 1 of 18
plaintiff whether he is bound to pay court-fee under section 7(iv)(c) of the Court-Fees Act
as a suit for declaratory decree with consequential relief or under Article 17, Schedule II
of the Court-Fees Act as a suit for bare declaration.

(2) Whether it is necessary for the plaintiff in such a suit to ask for consequential relief as
contemplated under section 39 of the Specific Relief Act, 1877 and if he has not
specifically asked for such a relief, whether he should be held, by necessary implication,
that there is a prayer for such a relief, because it comes under section 39 of the Specific
Relief Act; and

(3) If a suit is framed as one for declaration that certain document is void, should it be
treated as one coming under section 42 or one falling under section 39 of the Specific
Relief Act;

Held: (1) A suit for a declaration that a certain document was void ab initio on the ground
that it was not executed by the plaintiff but by somebody else and that the document has
not affected the right, title and interest of the plaintiff is a suit to obtain a simple
declaratory relief, and, as such, the court-fee payable in the suit is under Article 17(iii) of
the Second Schedule to the Court-Fees Act and not under section 7(iv)(c) of that Act.

(2) It is not necessary for the plaintiff in such a suit to ask for consequential relief as
contemplated under section 39 of the Specific Relief Act, and that if the plaintiff has not
asked for such a consequential relief he cannot be held, by necessary implication, to have
made a prayer for such a relief.

(3) If a suit is framed as one for a declaration that a certain document is void, it is to be
treated as one under section 39 of the Specific Relief Act, 1877 or partly under that
section and partly under section 42 of the same Act.

Umarannessa Bibi v. Janurannessa Bibi and another 37 C L J 499; Kattlya Pillai and
another v. Ramaswamia Pillai and others A I R 1929 Mad. 396; C. R. Ramaswami
Ayyangar, Minor v. C. A. S. Rangachariar and others A I R 1940 Mad. 113; Ma Wa Nu
and others v. Ma Than A I R 1941 Rang. 269; Bishan Sarup v. Musa Mal and others A I R
1935 All. 817; Joseph Lazarus v. Isha Khan A I R 1958 Pat. 108; Kalu Ram v. Babu Lal
and others A I R 1932 All. 485; Mst. Wazir Begum v. Haji Ashiq Hussain and others P L
D 1957 Lah. 126; Mst. Rupia v. Bhatu Mahton and others A I R 1944 Pat. 17; Sri Krishna
Chandra v. Mahabir Prasad and others I L R 55 All. 791; Dusari Nagabhushanam v.
Kunameeni Venka Tappayya A I R 1935 Mad. 203; Ponnammal alias Guruvammal and
others v. Kanthammul and others A I R 1952 Mad. 552; Sultan Khan and others v.
Ziauddin and others A I R 1935 Lah. 611; Robert Fisher v. Secretary of State for India
(1898) I L R 22 Mad. 270; Partab Singh v. Bhabuti Singh (1913) I L R 35 All. 487; Deo
Kali Koer v. Kedar Nath (1912) I L R 39 Cal. 704; Ghulam Quadir v. Bulaqi Mall P L D
1949 Lah. 461; Harwant Singh v. Jagan Nath A I R 1943 Lah. 348 and Rambharosa v.
Bina Devi A I R 1956 Pat. 203 ref.

(c) Specific Relief Act (I of 1877),

S. 39-Relief of cancellation of document---Consequential relief within meaning of S.


7(iv)(c), Court-Fees Act (VII of 1870).

(d) Court-Fees Act (VII of 1870),

S. 12-Court at stage of determining question of court-fee-Not concerned with merits of


suit or its maintainability.

Bishan Sarup v. Musa Mal and others A I R. 1935 All. 817 rel.

Suresh Chandra Bose, Rajendra Kumar Banik and Nasiruddin Choudhry for Petitioner.

Asaduzzaman Khan for the Opposite-Party No. 1.

Abdul Matin Khan Chowdhury for the Opposite-Party No. 2.

Page No. 2 of 18
Syed A. B. Mahmood Hussain, Senior Government Pleader for the State.

Dates of hearing: 12th and 13th August 1964.

JUDGMENT

HASAN, J.----In his suit the plaintiff, asserting possession through tenants, and alleging,
inter alia, that certain registered documents purported to have been executed and
registered by him, some in favour of the defendant No. 1 and some in favour of defendant
No. 2, were really executed by one Kalipada Banik falsely personifying him as the
plaintiff in those documents, prayed for declaration:-

(a) that the documents as described in the Schedule "A" below are void ab initio and that
the defendants have acquired no interest in the suit premises by virtue of the aforesaid
documents;

(b) that the documents mentioned in the Schedule `A' below have been brought into
existence by forgeries and false personations and that no consideration did pass by the
said documents.

The learned Subordinate Judge was of opinion that the plaintiff was to pay ad valorem
court-fee as the plaintiff in the form of declaration was seeking some other relief which
was no doubt of consequential relief and accordingly directed the plaintiff to pay ad
valorem court-fee. As against that the plaintiff moved this Court and obtained a Rule.
That matter came up for hearing before a Division Bench of this Court, which differed
from the decision given by another Division Bench of this Court in an unreported case in
Civil Revision No. 307 of 1949 disposed of on 22nd September 1949, and referred the
matter to the Full Bench as it involved an important question of law.

Mr. Bose, the learned Advocate for the petitioner, has contended that his plaint as framed
comes under section 42 of the Specific Relief Act and as such only fixed court-fee is
liable to be paid by his client as required by Article 17(iii) of Schedule II of the
Court-Fees Act. It has been further contended that assuming the plaint also comes under
section 39 of the Specific Relief Act, even in that case, the suit being a declaratory one,
his client is liable to pay only a fixed court-fee and in so declaring if it be necessary that
the documents in question shall have to be cancelled, then, in that case, as it is the duty of
the Court to cancel those documents under the said section, his client is not liable to pay
ad valorem court-fee but a fixed court-fee. For this proposition of law he has relied on the
cases of Umarannessa Bibi v. Jahurannessa Bibi and another (37 C L J 499), Kattiya
Pillai and another v. Ramaswamia Pillai and others (A I R 1929 Mad. 396), C. R.
Ramaswami Ayyangar, Minor v. C. A. S. Rangachariar and others (A I R 1940 Mad. 113),
Ma Wa Nu and others v. Ma Than (A I R 1941 Rang. 269), Bishan Sarup v. Musa Mal
and others (A I R 1935 All. 817) and Joseph Lazarus v. Isha Khan (A I R 1958 Pat. 108),
while on the other hand, the learned Senior Government Pleader and Mr. Abdul Matin
Khan Choudhry appearing for the opposite-parties have contended that as the suit comes
under section 39 of the Specific Relief Act and also as the language of the plaint shows
that the plaintiff has claimed for several consequential reliefs, the plaintiff is liable to pay
ad valorem court-fee as observed by the learned Subordinate Judge and for this
proposition of law reliance has been placed on the cases of Kalu Ram v. Babu Lal and
others (A I R 1932 All. 485); Mst. Wazir Begum v. Haji Ashiq Hussain and others (P L D
1957 Lah. 126) and Mst. Rupia v. Bhatu Mahton and others (A I R 1944 Pat. 17).

It is found from the decisions cited by the learned Advocate for the petitioner that when a
suit comes under section 39 of the Specific Relief Act, the plaintiff is not to pay ad
valorem court fee even in presence of a prayer for cancellation as the prayer for
cancellation of document is superfluous inasmuch as under the provision of section 39 of
the Specific Relief Act the Court is bound to give that relief when it is found that the
document in question needs to be cancelled. I am unable to accept the, proposition that
whenever a suit comes under section 39 of they Specific Relief Act, though there is a
prayer or no prayer fold cancellation of the document, the Court is bound to give the
relief to the plaintiff by cancelling the instrument and the plaintiff is not to pay ad

Page No. 3 of 18
valorem court-fees for such relief. The statute lays down some procedure and the relief
that may be available to a certain person in that procedure but that does not necessarily
mean that when there is no prayer for any relief, the Court is bound to give the necessary
relief to the plaintiff. Right to sue is dependent on cause of action and the cause of action
arises when one's right is violated, and when one's right is violated one is entitled to get
relief. In order to have that relief one is to adopt an appropriate procedure provided by
law and to seek for one's relief in that. Hence in the absence of a prayer for an appropriate
relief the action is not entertainable. So in order to maintain one's action there must be
prayer for appropriate relief; and accordingly an appropriate relief may be granted when
it is prayed for and not otherwise.

Now coming to section 39 of the Specific Relief Act, we find it provides for "When
cancellation of a written instrument may be ordered". The language of the section does
not make it obligatory on Court to order the instrument to be delivered up or cancelled. It
only provides for a relief which may be sought for and may be available in an appropriate
case when it is prayed for and not otherwise.

The following reasons of mine also seem to support my above view:-

(1) where the illegality of any agreement, deed or other written instrument appears upon
the face of it, so that its nullity can admit of no doubt, the reason for the interference of
the Court to direct it to be cancelled or delivered up might not arise, as in such cases there
may be no danger as lapse of time may deprive a party of its defence but where illegality
or nullity is non-apparent, the danger of its use in defence is always there, the Court may
give the relief by cancelling or delivering up but that relief shall have to be prayed for
and unless prayed for, that cannot be imposed upon the plaintiff.

(2) A person though not a party in a written instrument directly or mediately may have
reasonable apprehension that such a document if left outstanding may cause him serious
injury, may sue to have it adjudged void or voidable. In that case he is not in a position to
pray for cancellation.

(3) A suiter has absolute liberty to frame his suit as he likes; of course, he is to suffer or
gain for so doing. The Court has, accordingly, no authority to compel him to frame his
suit in a particular manner. Hence it is his option to make or not to make a particular
prayer.

For the above, a person may or may not choose to or may or may not be required or to
pray for cancellation and as such in the absence of such a prayer the Court cannot impose
upon that person to make a prayer for cancellation and order the written instrument to be
cancelled or delivered up.

My above view is also supported by the following observation of Niamatullah, J. which I


fully endorse, in the case of Bishan Sarup v. Musa Mal.

"Consideration of the frame of the suit for the purposes of court-fee and that for the
purposes of decision of the suit must be kept severely apart. If the plaintiff says that he
deliberately limits his relief to declaration, no impediment should be thrown in his way
for that purpose. When the Court comes to consider the merits of the case, it must pin
down the plaintiff to his choice; and if he has made an error in that respect, he must take
the consequences. But in determining the court-fee payable the Court should not allow its
mind to be influenced by the consequences which might, in its opinion, follow from the
plaintiff's action. Nor should the Court be influenced by the consideration that the
plaintiff is actuated by motives of economy and is evading payment of court-fee by not
suing for cancellation and suing only for a declaration. It is perfectly legitimate for the
plaintiff to avoid the payment of highter court-fee by so framing his suit as to diminish
his liability in that respect.

Section 6, Court-Fees Act, cannot subject at plaintiff to liability to pay court-fee for a
relief which he does not ask for. If he claims both the reliefs of declaration and
cancellation as he may in certain cases, he must pay for both; but where, on the
construction of his plaint in the light of his averment, the Court comes to the conclusion

Page No. 4 of 18
that the plaintiff claims a declaratory relief and not cancellation of an instrument, there is
nothing in section 6, which justifies a demand for two fees."

In the case of Sri Krishna Chandra v. Mahabir Prasad and others (I L R 55 All. 791),
Sulaiman, C. J., observed:

"Obviously, the Full Bench did not intend to lay down that where the plaintiff
deliberately omits to claim a consequential relief and contents himself with claiming a
mere declaratory decree, the Court can call upon him to pay court-fees on the
consequential relief which he should have claimed although he has omitted to do so."

From the above observation of his Lordship Sulaiman, C. J. it appears that the decision
that was given by the Full Bench in the case of Kalu Ram v. Babu Lal and others did not
lay down the proposition that when the plaintiff did not claim for the cancellation of the
document, the plaintiff had to pay ad valorem court-fee.

The same view has also been taken in the case of Mst. Rupia v. Bhatu Mahton and others.

Having in view the above principle of law, I am to see for the purpose of court-fee only,
whether the plaintiff has prayed for any consequential relief or any substantial relief, or
merely a declaratory one. From prayer (a) it appears the plaintiff has made two prayers
for declaration (1) that a declaration be made that the documents as described in Schedule
A below are void ab initio and (2) for a declaration that the defendants have acquired no
interest in the suit premises by virtue of the aforesaid documents and from prayer (b) it
appears to me that it is nothing but the grounds in support of the prayers in prayer (a)
because the prayers (a) and (b) may be formulated as follows: A declaration that the
documents as described in Schedule `A' below are forged ab initio and that the defendants
have acquired no interest in the suit premises by virtue of the said documents for the
documents referred to in Schedule `A' below have been brought into existence by
forgeries and false personations and without any consideration.

Of the prayers as now appear the first prayer for declaration that the document as
described in Schedule `A' below are void ab initio comes under section 39 of the Specific
Relief Act and the second prayer that the defendants have acquired no interest in the suit
premises by virtue of the aforesaid documents comes under section 42 of the Specific
Relief Act. So in my opinion, the prayers as made in the plaint taken together with the
other statements in the plaint, it appears to me, show that the plaintiff only has made
some prayers for declaration and nothing more, and as such the plaintiff is liable to pay
fixed court-fee under Article 17(iii), Schedule II of the Court-Fees Act for each
declaration.

It may be noted here, that my above decision is only for the purpose of court-fees and not
for the purpose of decision of the suit.

SATTAR, J.----In this application under section 115 of the Code of Civil Procedure, an
order of the learned Subordinate Judge, 1st Court, Dacca, in Title Suit No. 129 of 1960
directing the plaintiff-petitioner before us to pay ad valorem court-fee under section 7(iv)
(c) of the Court-Fees Act on a plaint filed by him with a fixed court-fee of Rs. 20 under
Article 17(iii) of Schedule It of the Court-Fees Act has been challenged. The petitioner
has filed the suit, out of which this application arises, alleging that he is the miner and to
possession of premises Nos. 3/7/1 and 317/2 Johnson Road (now Liaquat Avenue), P. S.
Sutrapur, in the city of Dacca. He left East Pakistan in March 1950 and since then has not
returned to East Pakistan. His further case is that the defendants in collusion with others,
superstitiously, collusively and fraudulently represented one Kalipada Banik as the
plaintiff and by deceitful means the said Kalipada Banik executed a deed of agreement
for sale of the aforesaid premises on the 8th July 1959 in favour of the defendant No. 2.
Thereafter on the 9th August 1959 the said Kalipada Banik executed a deed of perpetual
lease in favour of the defendant No. I in respect of the same on alleged receipt of a
premium of Rs. 30,000. On the 15th August 1959, Kalipada Banik then executed a deed
of sale of the residuary interest in the suit premises in favour of defendant No. 1 for an
alleged consideration of Rs. 99. Lastly, Kalipada Banik executed a deed of sale on the
10th August 1959, in favour of the defendant No. 1 in respect of the arrear rents due from

Page No. 5 of 18
the tenants of the suit premises. The plaintiff has asserted that all these documents which
are described in Schedule `A' to the plaint are forgeries and therefore void ab initio. On
these assertions the plaintiff has made the following prayers:-

(a) a declaration that the documents as described in the Schedule `A' below are void ab
initio and that the defendants have acquired no interest in the suit premises by virtue of
the aforesaid documents;

(b) for a further declaration that the documents mentioned in the Schedule `A' below have
been brought into existence by forgeries and false personations and that no consideration
did pass by the said documents; and

(c) costs of the suit.

The learned Subordinate Judge after hearing the parties has taken the view that the stilt as
framed is a suit for declaration and for consequential relief and in that view has directed
the plaintiff-petitioner to pay ad valorem court-fee under section 7(iv)(c) of the
Court-Fees Act. It is against this order that the petitioner has moved this Court and
obtained the present rule.

This revisional application came up for hearing before a Division Bench of this Court. It
thought that the court-fee paid by the petitioner was sufficient and the learned
Subordinate Judge was wrong in directing him to pay additional court-fee. As, however,
it was noticed that another Division Bench in Civil Revision No. 307 of 1949 took a
contrary view in a similar case, this case was referred to the Full Bench and the following
questions were formulated for answer:-

"(1) In a suit for a declaration that certain document was void ab initio as it was not
executed by the plaintiff but executed by somebody else by falsely personifying him to be
the executant, as in the present case, and as such the document has not affected the right,
title and interest of the plaintiff whether he is bound to pay court-fee under section 7(iv)
(c) of the Court-Fees Act as a suit for declaratory decrees with consequential relief or
under Article 17 Schedule II of the Court-Fees Act as a suit for bare declaration.

(2) Whether it is necessary for the plaintiff in such a suit to ask for consequential relief as
contemplated under section 39 of the Specific Relief Act and if he has not specifically
asked for such a relief, whether he should be held, by necessary implication, that there is
a prayer for such a relief, because it comes under section 39 of the Specific Relief Act?

(3) If a suit is framed as one for declaration that certain document is void, as in the
present cast, should it be treated as one coming under section 42 of the Specific Relief
Act or as one coming under section 39 of the Act."

At the hearing of this case we felt that as it involved a question with regard to the
payment of additional court-fee, the learned Senior Government Pleader should be heard,
in accordance with rule 18, Chapter 11, Part 1 of the High Court Rules. We have had the
advantage of hearing him also in addition to Mr. Abdul Matin Khan Choudhry who
appears for the opposite-party No. 2.

Mr. Suresh Chandra Bose who appears for the petitioner has argued that as the suit has
been framed in a purely declaratory form, the court-fee paid is sufficient. According to
the learned Advocate, the fact that the declaration asked for relates to certain documents
makes no difference in regard to the payment of court-fee particularly when the petitioner
is not a party to those documents. In support of this contention, reliance has been placed
upon the case of Vsarannessa Bibi v. Jahurannessa Bibi and another (1) and some
decisions of the Madras High Court to which I shall presently refer. I have felt in stead of
examining the decisions relied on by the learned Advocates for the parties individually,
they should be considered in groups as most of them fall under distinct categories, I may
indicate at the outset that so far as the main point that calls for determination is
concerned, there is a serious conflict of opinion not only in regard to whether fixed
court-fee is sufficient in a case like the present and if not, then also in regard to the
particular provision of the Court-Fees Act under which ad valorem court-fee is payable.

Page No. 6 of 18
Without adverting to the arguments advanced before us, I have felt that I would rather
straightway proceed to consider the decisions relied on by the learned Advocates as the
arguments have more or less followed the Vines taken in these cases.

The cases of Umarannessa Bibi v. Jahurannessa Bibi and another, Kattiya Pillai and
another v. Ramaswamia Pillai and others, C. R. Ramaswami Ayyanagar v. C. S.
Rangachariar and others, Dasari Nagabhushanam v. Kunameeni Venka Tappayya (A I R
1935 Mad. 203), Ponnammal alias Guruvammal and others v. Kanthammul and others (A
I R 1952 Mad. 552), Sultan Khan and others v. Ziauddin and others (A I R 1935 Lah.
611) and Ma Wa Nu and others v. Mathan, are representatives of decisions which have
laid down that where declaration only is prayed for in regard to certain documents
payment of fixed court-fee under Article 17(iii) of Schedule II is sufficient.

In the first mentioned case Mukherjee, J. of the Calcutta High Court took the view that
when a person was induced to execute a document other than what he or she had
undertaken to execute, the document was void and such a document need not be
cancelled.

The learned Judge also came to the conclusion that as in that case, the plaintiff asserted
that she was still in possession of the property and she only prayed for a declaration that
the deed which was in the hands of the defendants was not her deed, fixed court-fee paid
on the plaint was sufficient. In the case reported in A I R 1929 Mad. 396, a Division
Bench of the Madras High Court took the view that where the plaintiff alleged that a will
put forward by the defendant was a forgery and further prayed for cancellation, payment
of fixed court-fee was sufficient as cancellation of such a will and cancellation of the
order of the Sub-Registrar registering the deed was the function of the Court and no part
of the prayer in the plaint. In the third case A I R 1940 Mad. 113 a Full Bench of the
Madras High Court has held that in respect of alienations by the father of a minor to
which the minor was not a party and which were challenged by the son in a suit for
partition against his father, the plaint need not contain a prayer for a declaration or
cancellation as the prayer is for a purely incidental but un necessary relief. When there is
no such prayer, there is no justification in implying one and then demanding a fee for it.

It will be seen, however, that Abdur Rahman, J. in his separate judgment observed that in
such a case if the plaintiff wants the Court to go into the question and prays for a relief
which must in the circumstances be taken to be tantamount to asking for an adjudication
relating to the binding nature of the alienations of family property, there is no reason why
the plaintiff should not pay the court-fee with regard to the same. According to the
learned Judge payment of court-fee as for simple declaration under Article 17-A (1) in
such a case is sufficient. In the case reported in A I R 1935 Mad. 203 it has been laid
down that when a person impeaches a deed as having been forged, to refer to him as
being a party to it, is an obvious misuse of words and where a forged instrument has been
brought into existence as if he were a party to it, it is not incumbent on him to have it
cancelled or set aside by suit. He can file a suit for a mere declaration that the document
is a forged one and such a suit is governed by Article 17-A(i) and not by section 7(iv)A.
In the case reported in A I R 1952 Mad. 552, a learned Single Judge of the Madras High
Court has taken the view that a person who is not a party to a decree or a document is not
bound to sue for its cancellation. In fact it is impossible for a person who is not a party to
a decree or a document to ask for its cancellation. In the case reported in A I R 1941
Rang. 269, a learned Single Judge of the Rangoon high Court has held that where in a
suit what the plaintiff asks for is a declaration that under a deed of gift to which he is not
a party no right, title or interest has passed to the defendant, or the declaration he asks for
is that his right, title or interest in the lands in suit is not affected by the said deed of gift,
the suit is a suit for a declaration without consequential relief. In the last case A I R 1935
Lah. 611 it has been held that where a person who is not a party to a deed or a decree sues
to have it declared void, Article 17 applies and payment of fixed court-fee is sufficient.

It will be seen that some of the above decisions have proceeded on the footing that if in a
suit declaration only is asked for that a document is void on the ground that the executant
executed a deed other than what be had undertaken to execute or that the deed is a

Page No. 7 of 18
forgery, then cancellation of such a document Is not necessary and payment of fixed
court-fee under Article 17(iii) of Schedule 11 is sufficient.

Cancellation of a document can be ordered under section 39 of the Specific Relief Act.

This section provides that any person against whom a written instrument is void or
voidable has reasonable apprehension that such instrument, if left outstanding, mal cause
him serious injury, may sue to have it adjudged void or voidable. The section further
provides that the Court may in its discretion in such a case adjudge the document as such
and order it to be delivered up and cancelled. The section goes on to say that if the
instrument has been registered under the Registration Act, the Court shall also send a
copy of its decree to the officer in whose office the instrument has been so registered and
such officer shall note on the copy of the instrument contained in his book the fact of its
cancellation. Illustration (b) to this section relates to a forged document. The provision
for declaratory decrees has been made in section 42 of the Specific Relief Act. This
section lays down that any person entitled to any legal character, or to any right as to any
property, may institute a suit against any person denying, or interested to deny his title to
such character or right, and the Court may in its discretion make therein a declaration that
be is so entitled, and the plaintiff need not in such a suit ask for any further relief. The
proviso to this section is that no Court shall make any such declaration where the
plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
Illustrations (c) and (e) to this section relate to declarations in regard to documents. If the
provisions of these two sections taken together with the illustrations mentioned above are
considered, it will be seen that they overlap each other and in a particular case it may be
difficult to express any definite opinion as to whether it falls exclusively under section 39
or section 42. It may be said to be a suit falling under both the sections. It is, however,
clear that section 39 contemplates cases in which not only cancellation can be expressly
asked for but also those in which cancellation can be granted by the Court having regard
to the case made out in the plaint.

It is difficult to see why in regard to both these classes of cases, payment of fixed
court-fee will be sufficient I am unable to agree with the view that because section 39
contemplates that the relief of cancellation is to be granted by the Court, even when the
plaintiff has not asked for the same, no court-fee need be paid for it. The plaintiff by way
of cancellation gets a relief which is other than the relief involved in the declaration or
adjudication and therefore must pay for the same.

I however accept the view that a document to which the plaintiff is not a party need not
be cancelled and a mere declaration to the effect that it is void is sufficient. It is only a
document, which has vested ex facie a valid claim, needs to be cancelled. A forged
document does not come within this category. Even in the case of a forged document,
however, if the plaintiff asks for cancellation, it will not be correct to say that he is not to
pay for it. If he has asked for both declaration and cancellation, then it will not be
permissible to urge that court-fee for cancellation need not be paid, as the relief is not
necessary or that it is logically impossible to ask for cancellation. Illustration (b) to
section 39 negatives such a contention. In determining whether in a suit cancellation has
been asked for, the plaint has to be read as a whole and the Court will not confine itself
merely to the form of the plaint but it must look to the substance of the relief claimed. If
on consideration of the plaint, the Court comes to the conclusion that the plaintiff has
asked for both declaration and cancellation or that cancellation is to be ordered having
regard to the case made out in the plaint, then it must be held that payment of fixed
court-fee under Article 17(iii) of Schedule II is not sufficient. If however it is found that a
mere declaration is sufficient and no relief by way of cancellation has been asked for by
the plaintiff, then the suit is a purely declaratory suit and payment of court-fee under
Article 17(iii) of Schedule II is sufficient. In my view it is not correct to say that since
section 39 of the Specific Relief Act falls under Chapter V which only deals with
cancellation of instruments and section 42 falls under Chapter VI and provides for
declaration in respect of legal character or any right to property, therefore declaration in
respect of a document is virtually a prayer for cancellation of the document. I do not find
any difference between a prayer to adjudge a document void or voidable and a prayer for
declaration that the document is so. If however a declaration is asked for in respect of a
document that it is void or voidable, the suit comes under section 39. It is not necessary

Page No. 8 of 18
to cancel a document in every case. It will depend upon the facts of the case. It is true that
the relief of cancellation need not be specifically asked for in view of the language of
section 39. It may be granted by the Court in the absence of a prayer to that effect. If
however such a relief has to be given, the plaintiff must pay for it and payment for mere
declaration is not sufficient.

The next question that calls for determination is under what provision of the Court-Fees
Act, court-fee is payable in a suit which is considered to be one for cancellation of a
document, be it on the ground that the plaintiff has expressly or impliedly asked for it or
that having regard to the case made out in the plaint relief by way of cancellation may be
granted by the Court. There is a serious conflict of opinion on this point. In one group of
cases of which I L R 54 All. 812, is the leading decision, it has been held that the relief of
cancellation is a substantive relief and not consequential within the meaning of section
7(iv)(c) of the Court-Fees Act and therefore court-fee is payable in a suit for cancellation
under the residuary Article 1 of Schedule I of the Court-Fees Act. This is the decision
which has been followed in Civil Revision No. 307 of 1949 decided by Shahabuddin, C.J.
and Amin Ahmed, J. The facts of the case reported in I L R 54 All. 812 are as follows: A
suit was instituted by the nephew and the son of one Sundarlal who had executed a
mortgage deed in favour of the defendant. In the mortgage suit the plaintiffs were
impleaded under the guardianship of their grandmother. The suit was decreed and a
preliminary decree was passed which resulted in a final decree later. The plaintiffs
instituted the suit and the following reliefs were asked for: (1) The mortgage deed, dated
the 20th of December 1918, may be adjudged void and ineffectual as against the plaintiffs
and it may be cancelled; (2) The compromise and the preliminary decree, dated the 16th
of September 1925, and the absolute decree, dated the 2nd of April 1927, of the Court of
the Subordinate Judge of Jhansi in re: Kalu Ram v. Sunder Lal and others, may be
cancelled. In this case a Bench consisting of 5 Judges of the Allahabad High Court has
taken the view that a relief to have a registered instrument adjudged void or voidable,
with the possible result of its being delivered up and cancelled and a copy of the decree
being sent to the registration office for a note to be made by the registering officer in his
books, is much more than a mere declaratory relief. It is undoubtedly a substantial relief
of a nature differing from a declaratory one. The case of Sri Krishan Chandra v. Mahabir
Prasad and others, is a decision by three of the learned Judges of the Allahabad High
Court who were also members of the Bench which decided the case reported in I L .R 54
All. 812. In this case the learned Judges have held that in the suit as the plaintiff merely
asked for a declaration that a decree was not in any way binding upon him and was
altogether void and ineffectual; the suit was one for obtaining a declaratory decree only
and therefore fell under Article 17(iii) of the Second Schedule. It is clear that a distinction
has been made between a document and a decree by the learned Judges in these two
cases. With due respect it is very difficult for me to follow what is really the distinction.
If a mere declaration in respect of a decree to which the plaintiff is not a party as void is
sufficient and no cancellation of such a decree is to be ordered and if, therefore court-fee
paid in such a suit under Article 17(iii) of the Second Schedule is considered sufficient,
why should it not be so in respect of a document. In the case of Bishan Sarup v. Musa
Mal and others, two of the learned Judges of a Full Bench of the Allahabad High Court
consisting of three Judges have taken the view that where a plaint is so worded as to
disclose a suit falling either under section 39 or section 42, Specific Relief Act, it is not
open to a Court to treat the suit as one falling within the perview of section 39 if the
plaintiff desires it to be construed as one under section 42. I may mention that these two
learned Judges, namely, Niamat Ullah and Rachhpal Singh, JJ. did not fully accept the
decision reported in I L R 54 All. 812.

There is another group of cases of which I have decided to select only two and I feel that
they represent those cases effectively, where it has been held that in a suit for declaration
and cancellation of a document court-fee is to be paid under section 7(iv)(c) of the
Court-Fees Act. In the case of Mst. Rupia v. Bhatu Mahton and others, the plaintiff
alleged in the plaint that the defendants fraudulently got the plaintiff to execute certain
sale deeds which were without consideration and prayed for a declaration that the sale
deeds were got up and fraudulent and that the defendants had acquired no title by virtue
of the same. It was held in this case that as the sale deeds in question on their very face
had been duly executed and properly registered carrying with them the necessary legal
consequences that title passed from the transferor to the transferees the sale deeds were

Page No. 9 of 18
necessarily required to be cancelled in order to get rid of the legal consequences attaching
to them. That being the very object of the suit, though the plaintiff did not in terms ask
for the cancellation of the deeds in question, that relief was implied in the relief sought.
The suit, therefore, being one for declaration with consequential relief was governed by
section 7(iv)(c) and not by Article 17(iii) of Schedule II of the Court-Fees Act. A similar
view has been taken in the case of Mst. Wazir Begum v. Haji Ashiq Hussain and others. I
agree with the view expressed in the last decision that in a case where a plaintiff seeks a
declaration about an order, decree, deed, instrument or transaction and wherein either
cancellation is in fact prayed for or it is implied in the declaratory relief, the case is one
of declaratory relief with consequential relief, and is, therefore, governed by section 7(iv)
(c) of the Court-Fees Act. On a careful reading of the decision reported in I L R 54 All.
812, I have not been able to agree with the view that the relief of cancellation is not a
consequential relief within the meaning of section 7(iv)(c) of the Court-Fees Act. I have
already indicated that the fact that section 39 falls in the Chapter relating to cancellation
of instruments and section 42 in the Chapter dealing with declaration does not make any
difference with regard to the question whether cancellation is a consequential relief
within the meaning of section 7(iv)(c) of the Court-Fees Act. Any relief which directly
flows from a declaration is a consequential relief. In that view it is difficult to see how
when a declaration is asked for in regard; to a document in respect of which there is
either a prayer expressly or impliedly for cancellation or such a relief has to he given
having regard to the case made out in the plaint, cancellation cannot be considered to be a
relief which flows of follows directly from the declaration in regard to the document. In
the present case of course the learned Subordinate Judge has held that the plaintiff' is to
pay court-fee under section 7(iv)(c) of the Court-Fees Act.

The learned Senior Government Pleader has argued that as the plaintiff claims possession
through tenants, it is necessary for him to get rid of the documents in suit and, therefore,
he has been rightly directed to pay court-fee under section 7(iv)(c) of the Court Fees Act.
I do not see how this fact, namely, that the plaintiff in the present suit is claiming to be in
possession of the suit properties through tenants by itself calls for payment of ad valorem
court-fee. The plaintiff's assertion is nothing but this that he is in possession of the suit
properties. If this assertion ultimately at the trial turns out to be baseless then the suit is
likely to come under the mischief of the proviso to section 42 of the Specific Relief Act;
but that is not a valid consideration at this stage when we are concerned only as to the
sufficiency of the court-fee paid on the plaint as framed.

My conclusions, therefore, are that the present suit as framed is a purely declaratory one
in which the documents in question need not be cancelled. As however the plaintiff has
prayed for declaration in respect of four documents as well as the properties in suit, he is
to pay separately for each of these declarations, that is to say, court-fees amounting to Rs.
100-Rs. 20 x 5.

A. M. SAYEM, J.---The suit has been valued for the purpose of jurisdiction at Rs.
30,000. The plaintiff has paid a fixed court-fee of Rs. 20 claiming that the suit is for a
simple declaratory decree to which the provision of Article 17(iii) of the Second Schedule
of the Court-Fees Act applies.

The plaintiff's case is that he is in possession, through tenant, of certain premises in the
city of Dacca, in relation to which certain registered documents mentioned in Schedule
`A' to the plaint have come into existence, falsely purporting to have been executed by
him in favour of the defendants, and that thereby a cloud has been thrown on plaintiff's
right, title, interest and possession in the said premises. The said premises have been
mentioned in Schedule `B' to the plaint.

Upon the above allegations, apart from a prayer for costs, the plaintiff has made the
following prayers:

(a) a declaration that the documents as described in the Schedule `A' below are void ab
initio and that the defendants have acquired no interest in the suit premises by virtue of
the aforesaid documents; and

Page No. 10 of 18
(b) a further declaration that the documents mentioned in the Schedule `A' below have
been brought into existence by forgeries and false personations and that no consideration
did pass by the said documents:

The documents mentioned in Schedule `A' are four in number. The first document which
is dated 8-7-59 is a deed of agreement for sale (bainapatra) in favour of defendant No. 2,
alleging that a sum of Rs. 14,100 was paid as earnest money to the plaintiff. The second
document which is dated 9-8-59 is a deed of perpetual lease in favour of defendant No. 1,
alleging that a sum of Rs. 30,000 was paid as premium. The third document which is
dated 10-8-59 is a deed of sale of the right to realise arrear rents due to the plaintiff from
different tenants is in favour of defendant No. 1 and alleges that a consideration of Rs.
10,000 was paid, and the fourth document, which is dated 15-8-59, is a deed of sale of the
residuary interest in the premises in question, including the right to realise the quit-rent of
Rs. 2 reserved by the second document in favour of defendant No. 1, alleging that a
consideration of Rs. 99 was paid.

Learned Subordinate Judge took the view that had the relief asked for ended with the first
part of prayer (a), namely, for a declaration that the documents in question were void ab
initio, the plaintiff would be entitled to pay a fixed court-fee of Rs. 20 under the third
clause of Article 17 of the Second Schedule attached to the Court-Fees Act. According to
the learned Subordinate Judge, the 2nd part of prayer (a), namely, for a declaration that
the defendants had acquired no interest in the premises in question by virtue of the
aforesaid documents, coupled with prayer (b), took the suit out of the category of simple
declaratory suits and placed it in the category in which court-fee is payable under section
7(iv)(c) of the Court-Fees Act, i.e., a suit for a declaratory decree where consequential
relief is prayed. He, therefore, directed the plaintiff to pay ad valorem court-fee under that
section.

The plaintiff thereupon moved this Court and obtained the present Rule, which was
placed before a Division Bench. The Division Bench referred the case to the Full Bench
upon formulating the following questions:-

(1) In a suit for a declaration that certain document was void ab initio as it was not
executed by the plaintiff but executed by somebody else by falsely personifying him to be
the executant, as in the present case, and as such the document has not affected the right,
title and interest of the plaintiff whether he is bound to pay court-fee under section 7(iv)
(c) of the Court-Fees Act as a suit for declaratory decree with consequential relief or
under Article 17, Schedule 11 of the Court-Fees Act as a suit for bare declaration.

(2) Whether it is necessary for the plaintiff in such a suit to ask for consequential relief as
contemplated under section 39 of the Specific Relief Act and if he has not specifically
asked for such a relief, whether he should be held, by necessary implication, that there is
a prayer for such a relief, because it comes under section 39 of the Specific Relief Act;
and

(3) If a suit is framed as one for declaration that certain document is void, as in the
present case, should it be treated as one coming under section 42 of the Specific Relief
Act or as one coming under section 39 of the Act.

Mr. Bose appearing for the plaintiff-petitioner insisted that the suit was one for a simple
declaratory decree without any express or implied prayer for a substantive or a
consequential relief, fully covered by the terms of section 42 of the Specific Relief Act,
both the parts of prayer (a) being prayers for simple declarations and the prayer (b) being
superfluous, the same having simply cited reasons in support of the prayer (a). He,
therefore, contended that the court-fee realisable in the suit was under Article 17(iii) of
the Second Schedule of the Court-Fees Act. He next contended that in case it was held
that the suit fell under section 39 of the Specific Relief Act, there could be no reason for
reading a prayer for cancellation therein, inasmuch as no such prayer has been made by
the plaintiff nor is he required to make such a prayer, since, according to him, in the event
of the suit being treated as one under section 39 it will, in terms of the section, be the
duty of the Court to direct cancellation. Thirdly, he contended that the plaintiff having

Page No. 11 of 18
alleged that he is not a party to the impugned deeds, the signatures wherein, according to
the plaintiff, were forged, there could be no need for cancellation of the same.

Learned Senior Government Pleader, who appeared at the hearing at our instance, and the
learned Advocate appearing for the defendants claimed that the snit fell under section 39
of the Specific Relief Act. They contended that the court-fee payable in the suit was ad
valorem on the subject-matter of the suit, namely, the suit premises under Article 1 of the
First Schedule of the Court-Fees Act, since according to them, a relief for adjudging an
instrument void could not be said to be of declaratory nature for the purpose of the
Court-Fees Act. They further referred us to the 2nd part of prayer (a), namely, the prayer
for a declaration that the defendants had acquired no interest in the suit premises by
virtue of the said documents and the last clause in prayer (b) asking for the declaration
that no consideration did pass by the said documents. It was strenuously argued that these
constituted a prayer for cancellation of the documents which, according to them, was a
substantive relief, as distinguished from a consequential relief. Reliance was placed on a
Full Bench decision of 5 Judges of Allahabad High Court in the case of Kalu Ram v.
Babu Lai, in which Sulaiman, C. J., who delivered the judgment of the Full Bench, held:

"A relief to have a registered instrument adjudged void or voidable, with the possible
result of its being delivered up and cancelled and a copy of the decree being sent to the
Registration Office for a note to be made by the Registering Officer in his books, is much
more than a mere declaratory relief. It is undoubtedly a substantial relief of a nature
differing from a declaratory one."

The facts of that case were as follows. A suit on a mortgage was compromised and a
decree for sale was passed followed by a final decree. A son and nephew of the
mortgagor, who were apparently members of a joint family with him, were also im-
pleaded defendants under the guardianship o: their grandmother. The son and the nephew
thereafter brought a suit, out of which the Full Bench case arose, for avoiding the
mortgage deed and the compromise and also the decrees on the ground that the mortgage
deed was fictitious and without consideration and legal necessity, the compromise on the
ground of fraud, and the decrees on the ground of negligence and collusion of the
guardian. Two main reliefs that were claimed were: (I) the mortgage deed be adjudged
void and ineffectual as against the plaintiff and 1t may be cancelled, and (2) the
compromise, the preliminary decree and the final decree may be cancelled. After pointing
out that section 39 of the Specific Relief Act is in Chapter V which is headed "of the
cancellation of Instruments", whereas there is a separate Chapter VI headed "of
declaratory decrees", Sulaiman, C. J. observed that it was obvious that the Legislature
intended to draw a distinction between a decree adjudging a written instrument void or
voidable, which may result in its cancellation, and a mere declaratory decree. His
Lordship proceeded to say further:-

"Though the Specific Relief Act was passed some years after the Court-Fees Act, the
distinction existed before the Specific Relief Act was passed, and it cannot be said that
for the purpose of Court-Fees Act a relief for adjudging an instrument void is of a
declaratory nature."

It was then said that "Where a suit is for the cancellation of an instrument under the
provisions of section 39 of the Specific Relief Act the relief is not a declaratory one", and
that such a suit falls neither under section 7(iv)(c) nor under Article 17(iii) of Schedule II
of the Court-Fees Act. In that view of the matter the Full Bench held that the court-fee
payable on the first relief was governed by Schedule I, Article 1. As to the second relief,
namely, cancellation of the compromise and the decrees, it was said that it was not a
declaratory relief only, since the effect of grant of such a relief is "not merely a
declaration as to a person's character or status, as contemplated by section 42 of the
Specific Relief Act, but the effect would be to render the decree void and incapable of
execution and will free the plaintiff from all further liability under it." Tile Full Bench,
therefore, held that the court-fee payable on the second relief also was under Schedule I,
Article 1, and neither under section 7(iv)(c) nor under Article 17(iii) of Schedule II of the
Court-Fees Act,

Page No. 12 of 18
I have quoted above, somewhat in extenso, the relevant observations of the Full Bench in
Kalu Ram's case. It will be evident from these observations that the Full Bench assumed
that declaratory suits, that is, suits for simple declarations or for declarations
accompanied with further or consequential relief could only be brought under section 42
of the Specific Relief Act. This view, however, is not tenable, as pointed out by the
Judicial Committee of the Privy Council in the cases of Robert Fisher v. Secretary of
State for India ((1898) I L R 22 Mad. 270), and Partab Singh v. Bhabuti Singh ((1913) I L
R 35 All. 487). In Robert Fisher's case the grantee of a perpetual lease of a village sued
for a declaration that an order of the Provincial Government directing cancellation of an
order of the Collector, though approved by the Board of Revenue, was ultra vires and
illegal, and of no binding effect on the plaintiff. No further specific relief was asked for in
the plaint. On behalf of the defendants it was urged that the plaintiff sinned against
section 42 of the Specific Relief Act, which forbids the Court to entertain a suit for a
declaratory decree which may be followed by consequential relief, unless the relief be
asked for specifically. The High Court gave effect to this contention. As the case came up
before the Privy Council, the Judicial Committee said of this section:-

"There can be no doubt as to the origin and purpose of that section. It was intended to
introduce the provisions of section 50 of the Chancery Procedure Act of 1852, 15 & 16
Vict., Cap. 86, as interpreted by judicial decision. Before the Act of 1852 it was not the
practice of the Court in ordinary suits to make a declaration of right except as
introductory to relief which it proceeded to administer. But the present suit is one to
which no objection could have been taken before the Act of 1852. It is, in substance, a
suit to have the true construction of a statute declared and to have an act done in
contravention of the statute, rightly understood, pronounced void and of no effect. That is
not the sort of declaratory decree which the framers of the Act had in their mind."

In Partab Singh's case the plaintiffs sued for a declaration that a compromise of certain
pre-emption suits and decrees passed thereunder made on their behalf when they were
minors not binding on them, having been obtained by fraud and in proceedings in which
they were practically unrepresented. The Subordinate Judge decreed the suit. The case
having ultimately gone to the Privy Council it was contended before the Judicial
Committee that the suit, having been filed for the purpose of obtaining a declaratory
decree only, was bad in form inasmuch as it did not pray that the decree should be set
aside; but that, assuming that it was rightly framed in asking only for a declaratory
decree, the Court had a discretion as to the granting or refusing such a declaration, and
the Court of the Judicial Commissioner, on appeal, was right in refusing to exercise that
discretion in favour of the plaintiff. Their Lordships of the Privy Council observed that
section 42 of the Specific Relief Act did not apply to the case and that it was not a
question of exercising a discretion under that section. Their Lordships gave the plaintiffs
a decree setting aside the decree of the Court of the Judicial Commissioner and declaring
that the agreement of compromise and the decree complained of were not binding upon
the plaintiffs. The history of declaratory decrees can also be found in the case of Deo Kali
Koer v. Kedar Nath ((1912) I L R 39 Cal. 704), decided by a Division Bench of the
Calcutta High Court, presided over by Jenkins, C. J. It is worthy of note that Sulaiman, C.
J. himself had occasion to refer to the above two decisions of the Privy Council in the
later Full Bench case of Sri Krishna Chandra v. Mahabir Prasad, in which Sulaiman, C. J.
noted the effect of the aforesaid two Privy Council cases and said that there could be no
doubt that section 42 of the Specific Relief Act was not exhaustive. I will have occasion
to refer again to this case at a later stage. Suffice it here to say that Kalu Ram's case
having been cited before a Full Bench of the Lahore High Court, in the case of Ghulam
Quadir v. Bulaqi Mall (P L D 1949 Lah. 461), Abdul Rashid, C. J., who delivered the
judgment of the Full Bench, expressed the opinion that the Allahabad Full Bench had
given too restricted a meaning to the words "consequential relief" as used in section 7(iv)
(c) of the Court-Fees Act. In the case of Wazir Begum v. Ashiq Hussain, the plaintiff,
Wazir Begum, prayed that a deed of relinquishment executed by her and others in favour
of Ashiq Hussain be declared to be fictitious, ineffective and void, and that it did not
affect the rights of the plaintiff in the estate left by her deceased father. The plaintiff also
prayed that the deed in question be cancelled. Kaikaus, J. who could not agree with the
decision in Kalu Ram's case, held, in agreement with a large number of decisions of
various High Courts, collected at page 135 of the Report, some of which were also cited
before us, that a suit for adjudging a document void, with the further prayer for its

Page No. 13 of 18
cancellation, is a suit for a declaratory decree coupled with a consequential relief, and
that the court-fee payable in such a suit was under section 7(iv)(c) of the Court-Fees Act.
His Lordship also pointed out that in determining the question of court-fees account
cannot be taken of the provisions of the Specific Relief Act, since the said Act came into
existence some years after the Court-Fees Act was passed. In view of they foregoing
discussion, I am clearly of the opinion that the relief of cancellation of a written
instrument in a suit for adjudging or declaring the instrument void or voidable is not a
substantive relief, as distinguished from a consequential relief, but is a consequential
relief within the meaning of section 7(iv)(c) of the Court-Fees Act.

Now the Senior Government Pleader's contention that the present suit for declaring
certain documents void ab initio, although the plaintiff has not prayed for cancelling
them, is not a suit of a declaratory nature is solely based on the observation in Kalu
Ram's case, appearing at page 821 of the Report to the effect that for the purpose of the
Court-Fees Act a relief for adjudging an instrument void cannot be said to be of a
declaratory nature. This is the observation that was followed in the Dacca cases also. In
the first place, this observation is an of obiter, since in that case there was actually a
prayer for cancellation of a mortgage deed and a compromise, and also of the preliminary
and final decrees passed on the said mortgage deed and the compromise, and no question
was referred to the Full Bench in relation to a case where the relief of cancellation was
not prayed for. In the second place, it may be mentioned that this view seems to have
been modified in the later Full Bench case of Sri Krishna Chandra v. Mahabir Prasad. In
Sri Krishna's case the plaintiff prayed for a declaration that a certain decree was not
binding upon him and was altogether void and ineffectual. The plaintiff, who was a
minor, alleged that he was ineffectively represented in the previous suit, and that it was
due to the negligence and carelessness of the guardian-ad-litem that the said decree was
passed against the plaintiff. It was urged on behalf of the defendants on the basis of Kalu
Ram's case, that the suit was not of a declaratory nature and that it was, in effect, a suit
for cancellation of the decree. Sulaiman, C. J., who in this case also delivered the
judgment of the Full Bench, negatived the contention and held that "inasmuch as the
plaintiff in this case merely asked for a declaration that the previous decree was not, in
any way, binding upon him acid was altogether void and effectual, his suit was one for
obtaining a declaratory decree only and falls under Article 17(iii) of the Second
Schedule". It was observed in justification of this conclusion that decrees stood on a
different footing from other documents. I do not, however, find any distinction, in this
respect, between a decree and a document of any other type. I am of the opinion that both
are written instruments in the sense the expression has been used in section 39 of the
Specific Relief Act. I am fortified in my opinion by the view taken by Kaikaus, J., to the
same effect in Wazir Begum's case. If this view be correct, there is no reason to think that
in the case before us the plaintiff's suit is not one for obtaining a declaratory decree only.
Both Niamatullah, J. and Rachhpal Singh, J., who delivered separate judgment in the Full
Bench case of Bishan Sarup v. Musa Mal, could not agree with the said observation of
Sulaiman, C. J., in Kalu Ram's case, relied upon by the learned Senior Government
Pleader, though the third Judge on the Full Bench, which consisted of three Judges, gave
a dissenting judgment. Learned Senior Government Pleader attempted also to argue, as
has already been noticed, that in view of the 2nd part of prayer (a), that is, for the
declaration that the defendants have acquired no interest in the suit premises by virtue of
the said documents and the statements in prayer (b) that no consideration did pass by the
said documents, the suit was virtually a suit for cancellation of the said documents. I find
no substance in this contention as well. In this connection, Mr. Bose contended that
prayer (b) in the plaint has not included a separate relief but it has simply indicated
grounds in support of prayer (a). The referring Bench seems to have accepted this
contention and I see no reason to take a different view. The first part of prayer (a) has
simply asked for a declaration that the said documents are void ab initio. Prayer (b) asks
for a further declaration that the' said documents have been brought into existence by
forgeries and false personations, and that no consideration did pass by the said
documents. If the documents have been brought into existence by forgeries and false
personations, there could be no passing of consideration to the plaintiff. Again, if the
documents were brought into existence by forgeries and false personations, they are no
doubt void ab initio. The statements appearing in prayer (b) cannot, therefore, but be
construed as reasons in support of the prayer for declaring the said documents void.
Prayer (b) is, therefore, superfluous. It is prayer (a) alone, therefore, with which the Court

Page No. 14 of 18
is concerned. This prayer appears to have two parts: (1) for a. declaration that the four
documents mentioned in Schedule `A' to the plaint are void ab initio and (2) for a
declaration that the defendants have acquired no interest in the suit premises by virtue of
the aforesaid documents. Unequivocally, therefore, the plaintiff has omitted to claim any
relief by way of a consequential relief in terms of section 7(iv)(c) of the Court-Fees Act
or a substantive relief, as distinguished from a consequential relief. Obviously, the first
part of the prayer (a) asking for a declaration that the documents are void falls under
section 39 of the Specific Relief Act and is its second part, which is in a negative form,
asks, in effect, for a declaration in terms of section 42 that the alleged transactions
evidenced by the said documents in favour of the defendants have not affected the right,
title and interest of the plaintiff. Illustration (a) to that section makes it clear that such a
prayer can be made in a suit under section 42 of the Specific Relief Act, being in relation
to a legal status or a right as to any property.

Relying, however, on the case of Bishan Sarup v. Musa Mal, decided by a Full Bench of
three Judges, who were naturally bound by the decision in Kalu Ram's case, Mr. Bose
contended that both the types of declaratory relief asked for in prayer (a) were such as are
contemplated by section 42 of the Specific Relief Act. The contention, however, loses
sight of the peculiar mould in which the prayer in that case was cast. There the prayer
was:-

"It may be declared that by virtue of the purchase made under the sale-deed, dated 24th
October 1931, in favour of defendant 1, and under-the sale-deed, dated 21st October
1931, in favour of defendant 2, which are null and void and ineffectual as against the
plaintiff and the joint family property-defendants 1 and 2 did not acquire any right to any
part of the houses mentioned at the foot hereof."

It was said in that case that the plaintiff might legitimately contend that the object of the
relief prayed for by him was to obtain a recognition of his right to property, and that the
void or voidable character of the instrument would come under consideration incidentally
for determining the plaintiff's right. Taking into consideration the insistence of the
plaintiff that the suit was under section 42 of the Specific Relief Act and that the same
could also be treated as of the character insisted upon, the suit was held to be under
section 42, Niamatullah, J. observed:-

"It seems to be an unheard of procedure that the Court should force upon a plaintiff a
frame of the suit which he is not willing to adopt."

There is, however, no ambiguity in regard to the relief asked for in the first part of prayer
(a) in the present case, namely, "a declaration that the documents as described in
Schedule `A' below are void ab initio." It is unambiguously in terms of section 39. , But
as to the second part of the said prayer, as I have already said, there is no difficulty in
giving effect to Mr. Bose's contention. Both the types of relief prayed for thus being for
simple declarations, section 7(iv)(c) can have no application, and the suit must be held to
be governed by the provisions of Article 17(iii) of the Second Schedule of the Court-Fees
Act. It is now well-settled that at the stage of determination of the question of court-fee
the Court is not concerned with the merits of the suit or its maintainability. This rule has
been elaborately, stated in Bishan Sarup's case by Niamatullah, J. in the following
words:-

"Consideration of the frame of the suit for the purposes of court-fee and that for the
purposes of decision of the suit must be kept severely apart. If the plaintiff says that he
deliberately limits his relief to declaration, no impediment should be thrown in his way
for that purpose. When the Court comes to consider the merits of the case, it must pin
down the plaintiff to his choice; and if he has made an error in that respect, he must take
the consequences. But in determining the court-fee payable the Court should not allow its
mind to be influenced by the consequences which might, in its opinion, follow from the
plaintiff's action. Nor should the Court be influenced by the consideration that the
plaintiff is actuated by motives of economy and is evading payment of court-fee by not
suing for cancellation and suing only for a declaration. It is perfectly legitimate for the
plaintiff to avoid the payment of higher court-fee by so framing his suit as to diminish his
liability in that respect."

Page No. 15 of 18
As to the second question referred to us, Mr. Bose's contention was that in a suit under
section 39 of the Specific Relief Act, the plaintiff need not specifically pray for
cancellation, and that the section casts a duty on the Court to grant the relief by way of
cancellation. In support of this contention Mr. Bose referred us to a Division Bench
decision of the Madras High Court in the case of Kattiya Pillai v. Ramaswamia Pillai. In
that case, the plaintiff alleged that a will put forward by the defendant was a forgery and
prayed in his plaint (1) that the will be declared to be forgery; (2) that it be cancelled; and
(3) that the order of the Sub-Registrar registering the will also be cancelled. The Bench
took the view that in such a suit it is the Court's function to order the instrument to be
cancelled and that it would be the duty of the Court to send a copy of its decree to the
Registration Officer, who is to note in his book that the instrument has been so cancelled.
The Bench concluded that the prayer for the cancellation of the will and the registration
was unnecessary and superfluous. The Bench thereupon held that the suit was on for a
declaration without consequential relief. This conclusion, in my opinion, is in excess of
the extent warranted by the section. No exception can be taken to the conclusion in so far
as it relates to the third prayer in the plaint before the learned Judges. But I cannot
pursuade myself to agree with their view that the second relief, which was for
cancellation of the will, was unnecessary and superfluous. The learned Judges used two
different terms, namely, `function and duty' function in relation to the second relief and
duty in relation to the third-and yet they reached the same conclusion in respect of both
the reliefs. Leaving aside the illustrations, section 39 of the Specific Relief Act is in the
following terms:-

"39. Any person against whom a written instrument is void or voidable, who has
reasonable apprehension that such instrument, if left outstanding may cause him serious
injury, may sue to have it adjudged void or voidable; and the Court may, in its discretion,
so adjudge it and order it to be delivered up and cancelled.

If the instrument has been registered under the Indian Registration Act, the Court shall
also send a copy of its decree to the officer in whose office the instrument has been so
registered; and such officer shall note on the copy of the instrument contained in his
books, the fact of its cancellation."

It appears to me on a plain reading of section 39 that it is only the relief specified in the
second paragraph of the section that need not be prayed for and is to be granted as a
matter of course, in the event of the Court passing an order of cancellation of the written
instrument, upon adjudging or declaring it void. This relief, in my opinion, has been set
out in a separate paragraph, with a view to keeping it in a category different from that of
reliefs specified in the first paragraph in which the words "the Court, in its discretion"
occur. They are not peculiar to section 39. I am not aware of any authority maintaining
that a discretion conferred on the Court is to be exercised in favour of a party, even
though the party chooses not to ask for its exercise. Nor do I find anything in the latter
part of the first paragraph of the section, which defines the powers of the Court, that
might induce me to take such a view. The discretion mentioned in the section, as I read it,
can not relate to adjudgment alone, but also to the relief of cancellation. It does not
appear to me that once an instrument is adjudged void in the discretion of the Court
cancellation is to follow, just as the relief set out in the second paragraph is to follow an
order of cancellation. Section 39, in my view, primarily provides a relief by way of a
declaration. It does not expressly provide, as is done by the proviso to section 42, that an
omission to pray for a further relief that might be asked for in the suit would entail its
dismissal. If cancellation is not prayed in such a suit, or having been prayed for has been
refused, in a subsequent suit for cancellation the plaintiff may be confronted with the bar
under Order II, rule 2 of the Code of Civil Procedure, or by a bar of limitation, or by
some other bars. But that cannot be a reason for the Court to assume that every suit
brought tinder section 39 of the Specific Relief Act is to contain a prayer for cancellation,
and so to insist on payment of an encashed court fee. It is only after the trial, as has
already been noticed, that the Court is called upon to consider the question as to if, in
exercise of its discretionary power under the section, a bare declaration should be
granted. If the plaintiff is a party to the instrument the court refuses, as a rule, to grant
such a declaratory relief, on, the ground that the instrument, in such a case, need be
avoided by cancellation. The plaintiff in such a case is required to pray for cancellation,

Page No. 16 of 18
by way of a consequential relief, where, however, the plaintiff is not a party to the
instrument no such difficulty arises. Numerous decisions were cited by Mr. Bose in
support of the proposition that where the plaintiff is not a party, he is entitled to a simple
declaratory relief and need not pray for cancellation or any other consequential relief. The
position is not different in respect of suits under section 42 of the Specific Relief Act, I
shall content myself by referring to only a few of them. In the Full Bench case of
Ramaswami v. Rangachariar, Leach, C. J., who delivered the judgment of the Full Bench
(three other Judges having concurred), said:-

"If a person not having authority to execute a deed or having such authority under certain
circumstances which did not exist, executes a deed, it is not necessary for persons who
are not bound by it, to sue to set it aside for it cannot be used against them. They may
treat it as non-existent. In the case of Harwant Singh v. Jagan Nath A I R 1943 Lah. 348,
a Division Bench of the Lahore High Court held that in a suit by a stranger for a
declaration that an auction sale in execution of a decree passed in a suit in which he was
not actually or constructively represented it was not for the plaintiff to ask for
cancellation. I propose to refer to two more decisions that are still more relevant."

Those are Ponnammal v. Kanthammal and Rambharosa v. Bina Devi (A I R 1956 Pat.
203) in which the plaintiff alleged forgery. In each of the cases it was held that the
plaintiff hearing claimed that he was not a party to the instrument he was- not required to
ask for its cancellation. I am in respectful agreement with this view.

For the aforesaid reasons, I would answer the questions referred to us as follows:-

Answer to question No. 1.-A suit for a declaration that a certain document was void ab
initio on the ground that it was not executed by the plaintiff but by somebody else and
that the document has not affected the right, title and interest of the plaintiff is a suit to
obtain a simple declaratory relief and, as such, the court-fee payable in the suit is under
Article 17(iii) of the Second Schedule, and not under section 7(iv)(c) of the Court-Fees
Act.

Answer to question No. 2.-It is not necessary for the plaintiff in such a suit to ask for
consequential relief as contemplated under section 39 of the Specific Relief Act, and that
if the plaintiff has not asked for such a consequential relief he cannot be held, by
necessary implication, to have made a prayer for such a relief.

Answer to question No. 3.-If a suit is framed as one for a declaration that a certain
document is void, it is to 'be treated as one under section 39 of the Specific Relief Act,
and not under section 42. But since in the present suit in addition to the said relief, the
plaintiff has asked for another declaratory relief, namely a declaration that the defendants
have acquired no interest in the premises mentioned in Schedule `B' of the plaint by
virtue of the aforesaid documents, the suit falls also under section 42 of the Specific
Relief Act, because of the last mentioned relief.

The Court.-Our answers to the questions framed by the Division Bench are as follows:-

(1) First part-No.

Second part-Yes.

(2) No.

(3) It falls under both the sections. The first part of prayer `A' falls under section 39 and
second part of the said prayer under section 42 of the Specific Relief Act.

The Rule is made absolute and the order of the learned Subordinate Judge directing the
plaintiff-petitioner to pay ad valorem court-fee is set aside. The petitioner, however, is
directed to pay additional court-fee of Rs. 80 within one month from the date of arrival of
the records in that Court, an intimation of which must be given to the plaintiff's lawyer
within three days from the receipt of the records. In default, the plaint will stand rejected.
The parties are to bear their own costs.

Page No. 17 of 18
K. B. A. Rule made absolute.

Page No. 18 of 18
P L D 1965 (W. P.) Lahore 686

Before Sardar Muhammad Iqbal, J

MUHAMMAD SHARIF-Petitioner

Versus

Mst. NATHO AND ANOTHER-Respondents

Civil Revision No. 37 of 1 60, decided on h February 1964.

(a) Civil Procedure Code (V of 1908)-----

----S. 115-Revision-Court below ordering plaintiff to pay larger amount of court fee than
paid on plain-Failure to pay such court fee bound to result in rejection of plaint-Such
order, held, open to examination by High Court in revision.

The lower Court required the plaintiff to pay a larger amount of court-fee than what he
paid on the plaint. If the court-fee was not paid, as ordered by the Court, it was bound to
result in the rejection of the plaint. If such order is erroneous, it finally deprives the
plaintiff from all redress in the suit itself. However, much the Court may have jurisdiction
to make such an order, if the effect of it is a refusal to proceed to trial at all in
circumstances when the Court is bound to do so, it will be a refusal by the Court to
exercise' jurisdiction which vested in it by law. In such a case when it is held that a plaint
is improperly or insufficiently stamped, the revision filed against such an order has to be
entertained and heard, and if it is found on examination in revision that the plaint was
properly or sufficiently stamped, the obvious conclusion will be that the Court has
refused to exercise jurisdiction vested in it by law to hear and decide the suit. It is,
therefore, open to High Court to examine the case and see that the order was legally
justified.

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

----Sch. II, Art. 17 (vi)-Suit for partition-"Physical" possession of property not necessary
to attract application of Art. 17 (vi)-Allegation in plaint of "actual" or "constructive"
possession sufficient-Determination of court fee-Courts to see nature of cause of action
and relief claimed.

To attract the application of Article 17 (vi) of Schedule II of the Court Fees Act, it is not
necessary that the plaintiff should .be in physical possession of the property in which he
claims a share. It is sufficient if the plaintiff alleges in the plaint to be in actual or
constructive possession. The law makes no distinction between the plaintiff who is in
actual possession and the one who is merely in constructive possession of the property
sought to be partitioned.

Asa Ram and others v. Jagah Nath and others A I R 1934 Lah. 563 and Dewan Chand v.
Dhani Ram A I R 1941 Lah. 523 ref.

In a suit in which the plaintiff alleged that .he was in joint possession either actual or
constructive and claimed by partition separate possession of his share in the alleged joint
family property the court-fee payable is to be determined according to Article 17 (vi),
Court Fees Act.

Mahendr Chandra Gangoli v. Ashutosh Gangoli 20 Cal. 762 ; Jhoti Parashad v. Jogendra
Ram A I R 1928 Cal. 878 ; Parmeshur Din v. Hergovind Prasad A I R 1939 Oudh 90 ;
Abdur Rahman v. A. B. Crisp A I R 1930 Rang. 164; Jai Partab Narain v. Rabi Partab
Narain A I R 1930 All. 443 ; Rama Sowami v. Ranaga Chariar A I R 1940 Mad. 103 ;
Ramautar Saho v. Ram Gobind Saho A I R 1942 Pat. 60 and Bhaddo v. S. A. Sado A I R
1924 Nag. 86 ref.

Page No. 1 of 4
It is the allegation of the plaintiff and not of the defendant that determines the nature of
the relief claimed. In order to determine the amount of court-fee payable on a plaint, the
Court should see the nature of the cause of action and the reliefs claimed in the plaint.

The Court Fees Act was passed in order to secure revenue for the benefit of the State and
not to arm a litigant with a weapon of technicality to harass his opponent. The Courts are
to be astute to see that litigants should have no chance of escape or no means to secure
the evasion of tax it would be extremely dangerous for them to leave the question of
requisite court-fee to depend not on the nature of the plaintiff's claim but on what the
defendants choose to plead, true or false.

Rachappa Subrao v. Shidappa Venkatrao A I R 1918 P C 188 and Partigton v.


Attorney-General (1869) 4 H L C 100 ref.

It is thus not permissible to speculate upon what may, be the real object of the plaintiff.
The pleas raised by the defendants cannot furnish any basis for deciding this question. If
the plaintiff in a plaint alleges to be in actual or constructive possession, the court-fee
payable would be Rs. 10.00 under Article, 17(vi) of Schedule II of the Court Fees Act.

Secretary v. Lakhanna A I R 1933 Mad. 430 and Asa Ram and others v. Jagan Nath and
others A I R 1934 Lah. 563 ref.

It may, however, be noticed that the plaintiff has to pay the court-fee on the allegations
made in the plaint and it will, of course, have no effect on the merits of the case. It may
turn out at the trial that the subject of the contest between the plaintiff and the defendant
is not properly represented by the form in which the plaintiff has chosen to put his claim
or the allegation of joint possession in the plaint is not borne out by the evidence, the
obvious result would be that the suit would fail unless the plaint is suitably amended
under orders of .the Court and further court-fee paid.

Asa Ram and others v. Jagan Nath and others A I R 1934 Lah. 563 ref.

(c) Interpretation of statutes-----

-----Fiscal statutes to be construed strictly and in favour of the subject-Court Fees Act
(VII of 1870).

Sh. Muhammad Iqbal Husain for Petitioner.

M. Z. Khalil for Respondents.

Date of hearing : 4th February 1964.

JUDGMENT

This is a revision petition against the order of the trial Court, dated the 3rd of February
1960, whereby it directed the plaintiff-petitioner to fix the value of the suit for the
purposes of Court-fee on the market price of his share which he had already fixed for the
purposes of jurisdiction at Rs. 1,000.00.

2. The petitioner instituted a suit for possession through partition of his share of 2/3rd of
half of houses Nos. F-1487 and F-1488 situate in Haveli Kabli Mal, Kucha Billa
Kabuterbaz, Lahore; claiming to be an owner in joint possession of them with the
defendant. The suit was valued for purposes of jurisdiction at Rs. 1,000.00 and a fixed
Court-fee of Rs. 10.00 was paid on the plaint. It was presumably under Article 17 (vi),
Schedule II, of the Court Fees Act.

3. The defendant did not admit the plaintiff to be in possession and claimed to be in
exclusive possession of the suit property. Based on these averments he took a preliminary
objection that the plaint' was not sufficiently stamped as the plaintiff had failed to pay ad
velorum Court-fee on the market price of his share in the suit property. The trial Court

Page No. 2 of 4
held that the plaintiff was not in actual physical possession of any part of the property in
dispute and the suit, therefore, had not been properly valued for the purposes of
Court-fee.

4. On behalf of the respondent an objection was taken to the very competence of the
revision petition. To answer this question, let us examine as to what is precise scope of
the order. The order of the lower Court requires the plaintiff-petitioner to pay a larger
amount of Court-fee than what he paid on the plaint. If the Court-fee is not paid, as
ordered by the Court, it is bound: to result in the rejection of the plaint. If the order is
erroneous, it finally deprives the plaintiff from all redress in the suit itself. However,
much the Court may have jurisdiction to make such an order, if the effect of it is a refusal
to proceed to trial at all in circumstances when the Court is bound to do so, it will, in my
opinion, be a refusal by the Court to exercise jurisdiction which vested in it by law. In
such a case when it is held that a plaint is improperly or insufficiently stamped, the
revision filed against such an order has to be entertained and heard, and if it is found on
examination in revision that the plaint was properly or sufficiently stamped, the obvious
conclusion will be that the Court has refused to exercise jurisdiction vested in it by law to
hear and decide the suit. It is, therefore, open to us to examine the case and see that the
order was legally justified.

5. The sole basis for the trial Court to hold that the plaintiff was liable to pay ad velorum
Court-fee was that he was not in actual physical possession. According to its decision
unless a person was in actual possession he had to pay ad velorum Court-fee. In other
words, Article 17 of the Schedule to the Limitation Act could apply only if the plaintiff
was in actual possession; and in other cases including constructive possession the
Court-fee had to be calculated as it was a suit for possession. The view of the trial Court
on this point is not correct. To attract the application of Article 17 (vi) of Schedule II of
the Court-fees Act, it is not necessary that the plaintiff should be in physical possession of
the property in which he claims a share. It is sufficient if the plaintiff alleges in the plaint
to be in actual or constructive possession. The law makes no distinction between the
plaintiff who is in actual possession and the one who is merely in constructive possession
of the property sought to be partitioned. In the Full Bench decision of the Lahore High
Court in Asa Ram and others v. Jagan Nath and others (A I R 1934 Lah. 563) the learned
Judges after a resume of the case-law on the subject, laid down, "that in a suit for
partition of joint property, where the plaintiff alleges that he is in actual or constructive
possession Court-fee payable would be Rs. 10 under Article 17 (vi) Schedule II of the
Court Fees Act." This decision was followed in a later Full Bench decision it Dewan
Chand v. Dhani Ram (A I R 1941 Lah. 523) where it was held that in at appeal arising
from a suit for partition of joint properties of which the plaintiff claimed to be in actual or
constructive possession, a Court-fee of Rs. 10.00 is payable on the memorandum of
appeal, even though the trial Court had found the plaintiff not to be in possession of some
or all the properties in the suit. There is, in fact, a consensus of opinion of all the High
Courts in Pakistan and India that in a suit in which the plaintiff alleged that he was in
joint possession either' actual or constructive and claimed by partition separate possession
of his share in the alleged joint family property, the Court-fee payable is to be determined
C according to Article 17 (vi), Court Fees Act. This was the view taken in Mahendr
Chandra Gangoli v. Ashutosh Gangoli (20 Cal. 762) Jhoti Parashad v. Jogendra Ram (A I
R 1928 Cal. 878); Parmeshur Din v. Hergovind Prasad (A I R 1939 Oudh 90); Abdur
Rahman v. A. B. Crisp (A I R 1930 Rang. 164) ; Jai Partab Narain v. Rabi Partab Narain
(A I R 1930 All. 443) ; Rama Sowami v. Ramga Chariar (A I R 1940 Mad. 103);
Ramaular Saho v. Ram Gobind Saho (A I R 1942 Pat. 60) and Bhaddo v. S. A. Sado. (A I
R 1924 Nag. 86)

6. The order of the trial Judge is otherwise erroneous because in giving his finding on
preliminary objection he has gone beyond the allegations made in the plaint. It is a
well-established principle that it is the allegation of the plaintiff and not of the defendant
that determines the nature of the relief claimed. In order to determine the amount of
Court-fee payable on a plaint, the Court should see the nature of the cause of action and
the reliefs claimed in the plaint. The Court Fees Act like the other fiscal statutes is to be
construed strictly and in favour of the subject. In Rachappa Subrao v. Shidappa Venkatrao
(AIR 1918 P C 188) the Judicial Committee observed that the Court Fees Act was passed
in order to secure revenue for the benefit of the State and not tot arm a litigant with a

Page No. 3 of 4
weapon of technicality to harass his opponent. It was further held that though the Courts
are to be astute to see that litigants should have no chance of escape or no means to
secure the evasion of tax it would be extremely dangerous for them to leave the question
of requisite Court-fee to depend not on the nature of the plaiptiff's claim but on what the
defendants choose to plead, true or false. The House of Lords had earlier in Partigton v.
Attorney-General ((1869) 4 H L C 100) held as:

"If the person sought to be taxed comes within the letter of the law he must be taxed,
however, great the hardship may appear to the judicial mind to be. On the other hand, if
the Crown, seeking to recover the tax cannot bring the subject within the letter of the law,
the subject is free, however, apparently within the spirit of the law the case might
otherwise appear to be."

It is thus not permissible to speculate upon what may be the real object of the plaintiff.
The pleas raised by the defendants cannot furnish any basis for deciding this question. In
Secretary v. Lakhanna (A I R 1933 Mad. 430), it was observed:

"in determining the proper Court-fee payable on the plaint it should be no concern of the
Court to see whether the allegations in the plaint were true or probable."

In Asa Ram and others v. Jagan Nath and others, their Lordships after very exhaustive
discussion of the subject observed:

"The principle is well-recognised that, in determining the provisions of the Court Fees
Act applicable to a particular suit, the allegations made by the plaintiff alone must be
considered and that the pleas raised by the defendant do not affect the question."

This decision leaves no doubt that if the plaintiff in a plaint alleges to be in actual or
constructive possession, the Court-fee payable would be Rs. 10.00 under Article 17 (vi)
of Schedule II of the Court Fees Act.

6. It was alleged in the plaint that the plaintiff was in constructive possession. On the
basis of the allegations in the plaint, the suit was properly valued for purposes of
Court-fee which was rightly paid under Article 17 (iv) of Schedule II. It may, however, be
noticed that the plaintiff has to pay the Court-fee on the allegations made in the plaint and
it will, of course, have no effect on the merits of the case. It may turn out at the trial that
the subject of the contest between the plaintiff and the defendant is not properly
represented by the form in which the plaintiff has chosen to put his claim or the allegation
of joint possession in the plaint is not borne out by the evidence, the obvious result would
be that the suit would fail unless the plaint is suitably amended under orders of the Court
and further Court fee paid. This point was also considered in Asa Ram and others v. Jagan
Nath and others and their Lordships of the Judicial Committee held :-

"If the Court finds, on a plea being raised by the defendant, this allegation to be untrue,
then ordinarily the suit will be dismissed solely on the ground that the plaintiff being out
of possession is not entitled to sue for partition without asking for possession of the
property in dispute unless for special reasons the Court deems it proper to allow an
amendment of the plaint on payment of the requisite Court-fee stamp."

7. In the result, I hold that the plaint has been properly valued for the purpose of
Court-fee and the order of the Civil Judge in this behalf being not warranted by law is
hereby set aside. The revision petition is, therefore, accepted with costs.

S. Q. Petition accepted.

Page No. 4 of 4
P L D 1962 (W. P.) Karachi 209

Before A. S. Faruqui, J

ZAINAB BAI----Plaintiff

Versus

IBRAHIMJI AND OTHERS-Defendants

Suit No. 1011 of 1955, decided on 2nd October 1961

(a) Partnership-Matter of agreement-Young persons having no capital of their own and


not capable of making any contribution to business of firm-Cannot be presumed, in
absence of other evidence, to have been admitted to partnership.

(b) Partnership Act (IX of 1932), Ss. 14 & 46-Sections not override mandatory
provisions of S. 17 (b), Registration Act (XVI of 1908).

(c) Registration Act (XVI of 1908), Ss. 17 (b) & 49Document purporting to bring
immovable property belonging to a partner into common stock of
partnership-Registration under S. 17 (b) necessary-Deed merely acknowledging existing
right into immovable property-Registration not compulsory.

When immovable property belonging to a partner is by means of a deed brought Into the
common stock of the firm so as to become the property of all the partners in the firm,
registration of the document under section 17 (b) of the Registration Act, 1908 is
compulsory. When, however, there is already an existing right in an immovable property
and there is merely a declaration by way of a settlement this would merely amount to an
acknowledgment of an existing right and the document containing such a declaration
would not be compulsorily register-able.

Premraj Brahmin v. Bhaniram Brahmin 49 G W N 794 dissented from.

Sunder Singh Majithia v. Commissioner of Income-tax A I R 1938 All. 452; S. Rao and
another v. C. Venkatratnam and others A I R 1925 Mad. 945 and Bageshwari Charan
Singh v. Thakurain Jagarnath Kuari and another A I R 1932 P C 55 ref.

(d) Registration Act (XVI of 1908), S. 17 (b)-Document requiring registration and not
registered-May nevertheless be looked into for determining nature of possession.

Although a deed transferring Interest in immovable property, if not registered, is not


admissible for giving effect to the disposition of the immovable property yet it can be
looked into for the purposes of determining the nature of possession.

Varada Pillay v. Jeevarathnamal I L R 43 Mad. 244 ref.

(e) Limitation Act (IX of 1908), Art. 144-Adverse possession-Question of fact-Elements


necessary to constitute adverse possession-Partnership-Immovable property belonging to
a partner was described as partnership property in unregistered deed of partnership-Right
in such property cannot be claimed by asserting adverse possession against real owner.

The question of adverse possession is essentially a question of fact. Possession, to be


adverse, must be actual, visible exclusive hostile and continued during the time necessary
to create a bar under the statute of limitation. Whenever any of these elements is lacking,
no claim of adverse possession can ripen.

Commentary by Rustamji on Limitation Act (6th Ed.) p. 826 ref.

When Immovable property belonging to a partner of a firm is by means of a deed brought


into the common stock of the firm so as to become the property of all the partners
registration of the deed is necessary. In the absence of such a document the mere fact that

Page No. 1 of 13
the property was described or treated as partnership property, does not constitute the
hostile act against the true owner of the property. Exclusive and hostile possession by one
partner against another of property which is treated as partnership property, is a
contradiction in terms. Therefore, if a partner is to succeed in respect of his claim in
immovable property of one of the partners and which had been treated as partnership
property, he has got first to show that the property legally became the property of the
partnership, and the interest of the partners was validly created in it. Where this has not
happened, a partner cannot turn round and claim any right in the immovable property by
asserting adverse possession against the real owner who is also a partner of the firm.
There may be an extreme case where one partner may really be holding a particular
property adversely to all the partners and may even get his title perfected by this process,
but that would be by virtue of his exclusive, open and hostile possession as against the
real owner. But he cannot achieve this result merely by saying that he was a partner of the
firm and the immovable property was being treated as property of the firm. Whatever
other incidents may arise from such a situation, it cannot be the basis of a plea of adverse
possession against a partner.

(f) Partnership-Suit for accounts and share of dissolved partnership-To be brought


within 3 years of date of dissolution.

Ismail v. Tyeballi Essaji 24 S L R 81 held, not applicable.

(g) Registration Act (XVI of 1908), Ss. 17 (b) & 49Dissolution of partnership-Deed of
dissolution by which one partner relinquishes his share in immovable property of firm-
Requires registration to constitute effective relinquishment.

Though it is not necessary to have a written document to evidence dissolution of


partnership yet when the parties have entered into an arrangement by which one partner
purports to release his share to the partnership which was reduced to writing, that writing
in order to be admissible and to constitute an effective relinquishment in respect of
Immovable property, requires registration if any interest in immovable property of more
than Rs. 100 in value has been released under the document.

(h) Court Fees Act (VII of 1870), Sched II, Art. 17 (vi)-Suit for partition alleging joint
possession-Fixed Court fee paid under Art. 17 (vi)-Allegation of joint possession
subsequently not borne out by evidence-Suit to be dismissed unless plaint suitably
amended and ad valorem Court fee on value of property paid.

Where a partition suit is brought on the allegation of joint possession and a fixed
Court-fee under Sched. II, Article 17 (vi) of the Court Fees Act, 1870 is paid and
subsequently if and when a Court comes to the conclusion that the allegation of joint
possession in the plaint is not borne out by the evidence, the plaintiffs' suit must be
dismissed unless the plaint is suitably amended and ad valorem Court-fee on the value of
the property is paid.

Permananda v. Dhirendra Nath Ganguly and others A I R 1950 Cal. 397 rel.

Sadulla Abbasi for Plaintiff.

Ramchandani for Defendants.

Dates of hearing: 24th November 1960; 6th, 21st December 1960 ; 5th, 6th and 20th
January 1961 and 9th September 1961.

JUDGMENT

This is a suit for partition, separate possession and accounts instituted by Zainab Bat, a
married daughter of Abdul Hussain Marvi who died in the year 1950 leaving as his heirs
the plaintiff and the defendants I to 4 and another son Ghulam Husain who died in the
year 1953 and whose heirs are also joined in the suit as defendants 5 to 16. Defendants 1,
2 and 3 are the sons of Abdul Husain Marvi. No. 4 is another daughter. No. 5 is the
widow of Ghulam Husain. Nos. 6 to 13 are the sons of Ghulam Husain and Nos. 14 to 16

Page No. 2 of 13
are his daughters. The defendants 7 to 14 are minors and are represented by their mother,
defendant No. 5, as her guardian ad litem. The wives of Ghulam Husain Marvl had
pre-deceased him.

2. The following family tree will show the relationship of the parties:-

ABDUL HUSAIN MARVI


____________________________|________________________________
| | | | | |
Ibrahimjee | Hatimbhai Fida Ali Kulsum Bai Zainab
deft.1 | deft.2 deft. 3 deft. 4 Bai
| plaintiff
|__________________
|
Ghulam Husain died in 1953 represented
by defts. 5 to 16

It is the case of the plaintiff that Abdul Husain Marvi was the exclusive owner of the
properties shown in Schedules A & B and was the mortgagee of the property shown in
Schedule C; that on the death of the said Abdul Husain Marvi the aforesaid heirs
including the plaintiff jointly inherited the property left by him in separate share as
detailed in the annexure attached to the plaint. According to this the share of the plaintiff
comes to 1/10 while the share of the three living sons and the deceased son Ghulam
Husain come to 2/10 each and the remaining 1/10th came to Kulsum Bai, another
daughter of Abdul Husain.

It is further alleged that as dispute arose between the parties about the joint enjoyment of
the aforesaid properties the plaintiff called upon the defendants to partition the same and
settle accounts of the properties shown in Schedules B & C, but the defendants have
avoided to do so and hence this suit. The cause of action is said to have arisen in the
month of October 1954 when the defendants are alleged to have called upon to partition
the property and when they refused to do so. A Court-fee of Rs. 15 was paid under
section 7 (fv) (c) and Article 17 (vi) of the Court Fee Act.

4. Schedule A attached to the plaint contains the three immovable properties which are
described as follows:-

"(1) A plot of land with building thereon bearing City Survey No. E. 1/1605, new
Survey No. 6/20, situate in Wadhomal Odharam Quarters, Water Course Road,
Karachi.

(2) A plot of land with building thereon, bearing City Survey No. C-6/59, new
Survey No. M. R. 2/48, situate in Market Quarters, Marriot Road, Karachi.

(3) A plot of land with building thereon bearing Survey No. 1/260-C, new S. No.
W. O. 6/6, situate in Wadhomal Odharam Quarters, Bunder Road, Karachi."

5. Schedule B contains the description of two firms, namely, (1) Abdul Husain Karimji
Marvi & Sons, Hardware Merchants, Marriot Road, Karachi and (2) Adam Trading Co.,
Ranchore Lines, Bhorapir, Karachi.

6. Schedule C contains the description of two mortgaged transactions, in one of which the
mortgagee was Abdul Husain Marvi and in the second Kulsum Bai, defendant No. 4 a
daughter of Abdul Husain Marvi. It is alleged that the money upon both these mortgages
was advanced by Abdul Husain Marvi who was the real mortgagee in both the cases and
the defendants should render accounts of the moneys received under these transactions.

7. Only the defendant No. 1 filed a written statement in the case. This was adopted by the
other defendants and the material allegations of it are these: It was denied that Abdul
Husain Marvi was the exclusive owner of the properties shown in Schedules A & B or
that the mortgaged amount mentioned in Schedule C belonged to him. It was further
stated that Abdul Husain Marvi used to carry on business in partnership jointly with his

Page No. 3 of 13
two sons, namely, Ibrahimjee defendant No. 1 and the deceased son Ghulam Husain, and
under partnership deed dated 21-1-30 executed by Abdul Husain Marvi and these two
sons the immovable property then possessed or acquired by them were treated as
partnership property and the properties Nos. 1 and 2 mentioned in the Schedule A were
specifically mentioned to be the partnership property of the firm of Abdul Husain
Karlmjee Marvi & Sons, who were in possession thereof; that by another partnership
deed dated 6-2-40 the defendants Nos. 2 and 3 (who by then had attained majority) were
also taken up as partners in the business of the said firm and all the properties of the
partnership including the property mentioned In Schedule A were again mentioned
therein as the partnership property ; that property No. 3 of Schedule A was as a matter of
fact purchased by the partnership sometime in 1939 out of the partnership funds ; that
thereafter by a dissolution deed dated 30th June 1945 the partnership was dissolved and a
property bearing survey No. 8, sheet W. O. 8 (which is not the subject-matter of the suit)
was taken over by Abdul Husain Marvi in full settlement of his share in all the
partnership assets, stock-in-trade and other immovable properties including the amounts
advanced on mortgage and goodwill of the business ; that the entire business of Abdul
Husain Karimjee Marvi & Sons with all its assets, immovable properties, amounts due on
the mortgages and the three properties mentioned in Schedule A of the plaint were taken
over by his sons, namely, defendants Nos. 1, 2 and 3 and Ghulam Husain, who was then
alive, and which thereafter belonged exclusively to them. It was further alleged that
Abdul Husain Marvi also confirmed by declarations in writing that be had no interest in
the abovementioned properties or the business etc., and mutation in the Record-of-Rights
was accordingly entered; that the deceased Abdul Husain Marvi made a Waqf of the
property bearing survey No. 8, sheet W. O. 8 for charitable purposes. It was further stated
that the three properties mentioned in Schedule A were subsequently divided between the
defendants 1 to 3 and Ghulam Husain sometime in 1947, and ever since then each one of
them has been In exclusive possession of what came to their share and subsequently in
1953 the defendant No. 1 had given away his property by way of gift to his sons. With
reference to the firms mentioned in Schedule B it was stated that Abdul Husain Marvi
had no interest in them and one of the firms, namely, Adam Trading Co. was started for
the first time in 1948 by two sons of the defendant No. 1 out of their own funds.

8. With reference to the property in Schedule C it was stated that the mortgage loan of Rs.
45,000 advanced to Premji Coonwerji was advanced by the firm Abdul Husain Karimjee
Marvi & Sons and was, therefore, a partnership asset and on dissolution in 1945 fell to
the share of the sons of Abdul Husain Marvi, and in 1947 on partition between the
brothers this item of property was taken over by the deceased Ghulam Husain and Fida
Ali, defendant No. 3. The other item of mortgage belongs exclusively to Kulsum Bai,
defendant 4, who had advanced Rs. 30,000 In 1944 to one Muhammadali Muhammad on
the mortgage of the property mentioned therein and Abdul Husain Marvi had no interest
in it at any time.

9. It was admitted that Abdul Husain Marvi died in 1950 a4d left as his heirs the persons
mentioned in the plaint but it was denied that the deceased left any property which any of
his heirs inherited. It was also admitted that Abdul Husain on his death in 1950 left
behind as his heirs the defendants No. 5 to 16.

10. It was further alleged that the deceased during his lifetime had given to the plaintiff
jewellery worth Rs. 10,000 which he confirmed by a will and that the plaintiff's suit for
shares in the properties mentioned in the plaint was a false one.

11. It was alternatively pleaded that the plaintiff's suit was time-barred. It was alleged that
the Immovable properties Nos. 1 and 2 mentioned in Schedule A were in the possession
of the firm of Abdul Husain Karimjee Marvi & Sons from 1930 which always remained
in possession and collected rent and profits thereof and property No. 3 in Schedule A at
no time belonged exclusively to the deceased but was acquired out of the partnership
firm. It was for these reasons stated that the deceased had no subsisting interest in the
properties at the time of the death of Abdul Husain Marvi. Likewise, the plaintiff's claim
in respect of the business of the firm of Abdul Husain Karimjee Marvi & Sons was also
time-barred as was the claim in respect of the mortgage amounts. The cause of action was
denied and it was denied that any demand was made by the plaintiff as alleged in 1954.

Page No. 4 of 13
12. In para. 15 of the written statement it was alleged that the suit for partition was not
maintainable and the suit was not properly valued, nor was the Court-fee paid proper, as
the properties and other assets were in the exclusive possession of the defendants.

13. The following issues, which were submitted by the Advocates of the parties, were
adopted by the Court:-

"(1) To whom the suit property belonged ?

(2) Was there any partnership between the defendants as alleged and late Abdul
Husain Marvi ?

(3) Were any of the properties mentioned in Schedules A & B of the plaint
properties of the partnership firm ? If so, what is its effect ?

(4) Was there a deed of dissolution between the late Abdul Husain Marvi and the
defendants ? If so, is it a valid document ?

(5) Was the alleged Waqf made by Abdul Husain Marvi valid and binding on the
plaintiff?

(6) To what share, if any, is the plaintiff entitled ?

(7) Are the defendants liable to render accounts of the property ?

(8) What is the interest of the plaintiff in the mortgage loan stated in para 7 of the
written statement ?

(9) Is the suit time-barred ?

(10) To what reliefs is the plaintiff entitled or what should the decree be ?"

14. It has been noticed in the pleadings that Schedule A of the plaint contains three items
of immovable property. Of these Items Nos. 1 and 2 admittedly were two of the five
properties which were awarded to Abdul Husain in the award, Exh. P-13, which had been
made on 10th November 1924, in an arbitration proceeding between Abdul Husain son of
Karimjee Marvi on the one hand and his brother Tayabali on the other. The defendant No.
1, Ibrahimjee, has admitted the correctness of this award in his evidence. It was admitted
by Ibrahimjee that his father Abdul Husain and his brother Tayabali were working
together in the hardware business since the year 1900 and that Tayabali had claimed share
in all the properties including the business and all this was a subject of the arbitration on
which the award was made. It was, however, the case of Ibrahimjee that he and his
brother Ghulam Husain were also working with their father since 1915 so that in the year
1930 when the partnership deed, Exh. D-21, was drawn and an admission in that deed
was made that these two properties and one more, which has since been sold away, were
the properties of all the three partners, namely, Abdul Husain, Ibrahimjee and Ghulam
Husain, the declaration in that deed was merely a statement of a fact which had already
existed and it did not create or transfer any interest in immovable property. It has already
been noticed that in the year 1924 Abdul Husain had parted with his brother Tayabali as a
result of the arbitration award, Exh. P. 13. It was stated by the defendant Ibrahimjee that
items 1 and 2 of Schedule A of the plaint were purchased in the year 1920 and that his
father must have purchased these properties out of the income of the business which he
was carrying on with Tayabali. After the partition between the two brothers of the
business and all the properties as a result of the award the first partnership deed which
came to ' be executed was the one of year 1930, Exh. D. 21. In this deed it is recited that
the father and the two sons above-named had been carrying on business in partnership in
the name of Abdul Husain Karimjee Marvi & Sons but had not executed any partnership
deed between themselves and whereas they were desirous of having a formal partnership
being drawn up and executed it was mutually agreed etc. And then follow the terms of the
partnership According to the evidence of Ibrahimjee the business until 1924, so long
Tayabali was working with Abdul Husain, was carried on in the name of Abdul Husain
Karimjee Marvi and it was after 1924 that the name was changed to Abdul Husain

Page No. 5 of 13
Karimjee Marvi & Sons. In this partnership deed, Exh. D. 21, paragraph 3 recites as
follows:-

"The capital of the partnership shall be the stock-in-trade of the existing business
its outstandings and moneys in the bank and the credit of the partnership in all
which each partners has and shall have equal 1/3rd share fn the profits and loss as
defined fn para 4 below and also in all the immovable properties described in the
Schedule A hereto annexed. Though the immovable properties all stand in the
name of Abdul Husain Karimjee Marvi each partner has an equal 1/3rd share
therein as is hereby admitted by Abdul Husain Karimjee Marvi."

The schedule of the Immovable properties attached to this partnership deed contained 3
properties, 2 of which are the items 1 and 2 of the Schedule A of the plaint. This
admission in the partnership deed was strongly relied upon on behalf of the defendants In
order to establish the ownership of the two sons in the said Immovable properties and it
was contended, and rightly so, that as Abdul Husain was a party to this admission the
burden of proof that this was not correct must be on the plaintiff. I shall now proceed to
examine whether this admission has been disproved.

15. It has been admitted that these Immovable properties were purchased in the year
1920, out of the Income of the business which Abdul Husain was carrying on with
Tayabali. In the award, which is a very exhaustive document, there is no mention of the
two sons of Abdul Husain and admittedly they were not parties to these arbitration
proceedings. By this award the entire immovable property which was held by the two
brothers jointly and of the business carried on by them In the name of Abdul Husain
Karimjee Marvi in partnership between the two brothers, was partitioned between the two
of them. The entire property which was the subject of the partition was valued at Rs.
4,05,000. From this was deducted the sum of Rs. 1,05,000 which was the liability of the
joint business thus leaving property of the value of Rs. 3,00,000. Out of this, property of
the value of Rs. 1,60,000 was awarded to Abdul Husain and the remaining property of
Rs. 1,40,000 to Tayabali. If Ibrahimjee and Ghulam Husain had been partners in this
business they would have been joined as parties in these arbitration proceedings and in
any case there would have been mention of them in the award, but nothing of the kind
happened. It must also be noted that on Ibrahim's own admission he was only about 17 or
18 years of age when these immovable properties had been purchased which was in the
year 1920. The other brother Ghulam Husain was even younger than Ibrahim so that it is
impossible to hold that they bad made any contribution towards the acquisition of these
properties, and even if these two brothers attended the shop before 1924-a fact of which I
am very doubtful-it is plain that they had not become partners in the business. Partnership
is a matter of an agreement and it is hard to believe that these two young boys would be
made partners at a time when neither of them had any capital of his own nor would be in
a position to make any other contribution worth the name to the business of the firm. The
Issue is further clinched by the fact that neither of them had either been parties to the
arbitration proceedings nor did they get anything in the award. That was the position till
November 1924 and I do not think that there was any partnership between 1924 and
1930, between Abdul Husain and his aforesaid two sons. In fact, on the first day when
Ibrabimji gave evidence he made a categorical admission that there was no partnership
between him and his father before 1930. When he came on the following day he
attempted to dilute this admission by saying what he had meant was that there was no
written partnership until 1930. I do not accept this explanation and I am of the opinion
that his earlier unequivocal statement that there was no partnership between him and his
father before 1930, represents the true state of affairs. I, therefore, hold that there was no
partnership between Abdul Husain and his two sons namely, Ibrahimjee and Ghulam
Husain before the year 1930, and the admission to the contrary in the partnership deed
stands rebutted. In fact, the admission is only that they had been carrying on business in
partnership but it was nowhere said as to since when they had been so carrying on the
business and, therefore, even if they became partners in 1924 after Tayabali had parted
that would not entitle them to claim that the immovable properties bad been acquired
jointly by them or they had any right or share in it. In fact the quotation from the
partnership deed, Exh. D-21, which has been reproduced above, does not say that these
two sons have been joint owners of these immovable properties, much less than they had

Page No. 6 of 13
jointly acquired them with the father. All that it says is that all the three partners have
equal 1/3rd share in these properties.

16. This conclusion is further strengthened by the fact that on 11th November 1939, two
other sons of Abdul Husain, namely, Hatim Bhai and Fida Ali, defendants 2 and 3 who
had by then become majors, were also taken in the partnership business of Abdul Husain
Karimjee Marvi & Sons and in the new deed of partnership which was executed on
6-2-1940, Exh. D-22, the share of the father and the two senior sons, in the immovable
properties was reduced from 1/3rd to 1/5th so that all the 5 partners according to this new
partnership deed were to have equal 1/5th share in the business as well as In the
immovable properties described in Schedule A of that deed. That schedule contains the
two immovable properties viz., items 1 and 2 of the Schedule A of the plaint which are
the subject-matter of the present discussion. If these properties had been jointly acquired
by the father and the two elder sons, long before 1930, or if the two sons had become sole
owner of 1/3rd share in those two immovable properties according to the partnership
deed, Exh. D.-21, they would not have allowed it to be split up between Hatimali and
Fida Ali who had only on attaining majority joined this firm in 1939. From all the
circumstances of the case I have reached the conclusion that these properties had not been
jointly acquired by Abdul Husain, Ibrahimjee and Ghulam Husain and that Abdul Husain
had never intended to give away 1/3rd share in the immovable properties to the two sons
in 1930, or 1/5th to the four sons in the year 1940. These properties which had been
acquired long before this partnership between the father and the sons came into existence
remained the property of the father notwithstanding these partnership deeds and the fact
that they were shown as partnership property in the Record-of-Rights.

17. It was then contended on behalf of the defendants that by virtue of the partnership
deed, Exh. D.-21, dated 21-1-1930, and by the subsequent deed of partnership, Exh. D.
22 dated 6-2-40, these two items of property had become the property of the firm Abdul
Husain Karimjee Marvi & Sons and on the dissolution of that firm would be liable to be
distributed among3t the partners in terms of their share which was 1/5th each, and this is
what happened when the dissolution in this case took place on 31-6-45, by Exh. D.-25
which has to be read with the waqf dated 13-6-45, Exh. D.-24. It was further contended
that to bring certain immovable property into a firm no writing or registration is required.
There is no doubt that this contention of Mr. Ramchandani finds support from a decision
of the Calcutta High Court reported in Premraj Brahmin v. Bhaniram Brahmin (49 C W N
799). In that case relying upon section 253 of the Contract Act, which was replaced by
section 14 of the Indian Partnership Act, and section 265 of the Contract Act, which was
replaced by section 46 of the Partnership Act, it was held that these sections do not
prescribe any particular mode by which properties have to be brought into common stock
and, therefore, as soon as the partners intend that their separate properties should become
partnership property and they are treated as such, then by virtue of the above provisions
these properties become property of the firm, This result, in the opinion of the learned
Judges, was not prohibited by any provision in the Transfer of Property Act or the Indian
Registration Act. It may be noted that it had been conceded before their Lordships by the
learned Advocate appearing for the respondent that a registered document was not
necessary to bring in the land and the structure into the common stock. With great
respect, I find it impossible to accept the above conclusion. The provisions of section 14
of the Partnership Act, which describes the property of the firm, and section 46 of the
same Act which deals with the B right of partners to have business wound up after
dissolution, do not override the mandatory provision of the Indian Registration Act.
Section 17 (b) of the Registration Act makes compulsorily registerable, non-testamentary
instruments which purport or operate to create, declare, assign, limit or extinguish,
whether in present or in future, any right, title or interest whether vested or contingent, of
the value of one hundred rupees and upwards, to or in immovable property. Section 49 of
the Act lays down that no document required by section 17 to be registered shall affect
any immovable property comprised therein and shall not be received as evidence of any
transaction affecting such property or conferring such power. There can be no doubt that
when an immovable property belonging to a partner is by means of a deed so brought into
the common stock of the firm so as to become the property of all the partners in the firm,
it clearly, comes within the mischief of section 17 (b) of the Registration Act. It is true
that when there is already an existing right into an immovable property and there is
merely a declaration by way of a settlement it would merely amount to an

Page No. 7 of 13
acknowledgment of an existing right and a document containing such a declaration would
not be compulsorily registerable. But that is not the case here. I have already held that the
two sons of Abdul Husain did not have any existing right in the immovable properties
which were brought into the partnership and in which 1/3rd share each was given to the
two sons. Much less there was any existing right of Hatim Bhai and Fida Ali when they
joined the firm upon which the partnership deed dated 6-2-40, Exh. D-22, was executed
and which gave 1/5th share to each of the four sons including Hatim Bhai and Fida Ali.
The Allahabad High Court in a case reported in Sundar Singh Majithia v. Commissioner
of Income-tax (A I R 1938 All. 452) took a similar view as Indicated by me above. Their
Lordships held:

"It is true that the partnership deed does not specifically mention buildings, but
we are clearly of opinion that, since depreciation on account of buildings was
claimed by this `firm' it must be held that, if the sugar factory was the self-
acquired property of Sir Sundar Singh, shares in the buildings as well as in the
business and machinery were distributed among the sons and wife of the owner.
And such distribution could only be effected by means of a registered
instrument."

18. In a case of the Madras High Court reported in S. Rao and another v. C. Venkatratnam
and others (A I R 1925 Mad. 945) it was held as follows:

"Though it is not necessary to have a written document to evidence dissolution of


partnership yet when the parties have entered into an arrangement by which one
partner purports to release his share in the partnership which was reduced to
writing, that writing requires registration if any interest In immovable property of
more than Rs. 100 in value has been released under the documents."

19. In a Privy Council case reported in Bageshwari Charan Singh v. Thakurain Jagarnath
Kuari and another (AIR 1932 P C 55) the distinction between the acknowledgment of an
existing right and creation or declaration of any right or title was clearly laid down. In
that case an owner of an impartible estate had made a gift of certain land to his second
wife and placed her in possession. This gift was void In view of certain provision of
Chota Nagpur Encumbered Estate Act, 1876. In 1916, the donor applied for validation of
the gift and produced the deed of gift. Nothing was done and the donor died in 1924. His
successor sued to recover possession of the land conveyed by the gift. The trial Court had
held that the petition for the validation of the gift was compulsorily registerable under
section 17 of the Indian Registration Act. Their Lordships held that the petition did not
require registration inasmuch as it was not itself one which created or declared any right
or title in the alienor but merely acknowledged as a fact that such right or title was hers.
Their Lordships further went on to observe that an instrument to come within section 17
(1) (b) of the Indian Registration Act must in itself purport or operate to create, declare,
assign, limit or extinguish some right, title or interest of the value of Rs. 100 and upwards
in immovable property.

20. In the present case there was no existing right in the sons of Abdul Hussain in the
immovable properties and both the partnership deeds, Exhs. D-21 and D-22, purport to
create and declare a right in immovable property and for want of registration they do not
affect the property and are inadmissible in evidence to that extent. I, therefore, hold that
the two partnership deeds did not effectively create any right or interest in favour of the
four sons in the two immovable properties, items 1 and 2 of Schedule A of the plaint.

21. It was next contended by Mr. Ramebandani that in so far as these properties were in
fact brought into the partnership in the year 1930, in which partnership the father and the
two elder sons were the partners and then subsequently by the partnership deed Exh.
D-22 the father and the four sons became partners and the properties have been shown in
the Record-of-Rights as the firm's properties, the four sons must be held, at least from
1940, to be in adverse possession of their 1/5th share each and the suit which was brought
in 1955, was barred by limitation. The burden of proving adverse possession would
naturally be on the defendants. There is not one word in the evidence of Ibrahimjee to the
effect that he and Ghulam Hussain were holding their alleged 1/3rd share in these two
properties adversely to their father Abdul Hussain from 1930, when the first deed of

Page No. 8 of 13
partnership, Exh. D-21, came into being or that the four sons including Hatim Bhai and
Fida Ali were holding their alleged 1/5th share in the said properties adversely to their
father from 1940, when the second deed of partnership was executed. No evidence from
the account-books have been produced to show how the income of these properties was
actually appropriated. Mr. Ramchandani, however, relies upon the statement of
Ibrahimjee where he says that the rents and profits of these properties were being
collected by the firm and that this property was being treated as the property of the firm,
and subsequent to the deed of relinquishment on 1945, the father made statement as per
Exh. D-37 before the Revenue Authorities that he had no interest in these properties and
therefore, this is sufficient to hold that at least from 1940, the possession of the four sons
in respect of the 4/5th share in the property was adverse to the father. There is no doubt
that as from the date of dissolution which is 31-6-45, in which the father had disclaimed
all interests in any of the properties including the other partnership assets, the possession
of the sons would become adverse. This deed of dissolution is not effective for the
purposes of the release by the father of his right in the immovable property as this deed is
not registered as required by the Registration Act. But, there is ample authority for the
proposition that even the deed is not admissible for giving effect to the disposition of the
immovable property it can be looked into for D the purposes of determining the nature of
possession. This is the view taken by the Privy Council in the case of Varada Pillay v.
Jeevarathnamal (I L R 43 Mad. 244). In fact, at the time of the argument it was conceded
by Mr. Abbasi, the learned counsel for the plaintiff, that adverse possession would
commence from 31-6-45, which is the date of the deed of dissolution which also deals
with the distribution of properties. But this would not help the defendants because the suit
was instituted in 1955, that is, within 10 years of the dissolution and distribution. The
question then for determination is whether adverse possession has been established from
1930, (Exh. D-21) or at least from 1940, as a result of Exh. D: 22.

22. A great deal of case law was cited by Mr. Abbasi, ail of which was on the point that
possession of one co-owner is possession on behalf of all the co-owners. These cases,
however, do not render any assistance, because it is not the case of the plaintiff that the
sons had become co-owners of the two immovable properties by virtue of the partnership.
The question which needs determination is whether in spite of the fact that no title was
conferred by the two partnership deeds upon the sons they can be held to have been in
possession of their shares as described in the deed, adversely to their father Abdul
Husain. No parallel case was cited at the bar on this point, nor have I been able to find
one. The question of adverse possession is essentially a question of fact. What constitutes
adverse possession has been succinctly put in the commentary by Rustamji on the
Limitation Act at page 826 of its sixth edition. This is what the learned author has said

"No matter in what jurisdiction the determination of what constitutes adverse


possession may arise, the decisions and text-books are unanimous in declaring
that the possession must be actual, visible, exclusive, hostile, and continued
during the time necessary to create a bar under the statute of limitation. Whenever
any of these elements is lacking, no title by adverse possession can ripen."

The rule is so exiomatic that it is unnecessary to refer to case law on the point. What is
the evidence in this case regarding the possession of the- sons being either exclusive or
hostile to the father ? Such conclusion cannot be reached merely from the fact that these
properties were described as partnership properties or even treated as such. Such a right
could only be created by a proper deed duly registered, In my opinion in the absence of
such a document, the mere fact that property was described or treated as partnership
property, does not constitute the hostile act against the true owner. Exclusive and hostile
possession by one partner against another of a property, which is treated as a partnership
property, is a contradiction in terms. Therefore, if a partner is to succeed in respect of his
claim in an immovable property of one of the partners and which had been treated as a
partnership property, he has got first to show that the property legally became the
property of the partnership, and the interest of the partners was validly created into it.
Where this has not happened, I do not think a partner can turn round and claim any right
1n the immovable property by asserting adverse possession against the real owner who is
also a partner of the firm. There may be an extreme case where one partner may really be
holding a particular property adversely to all the partners and may even get his title
perfected by this process, but that would be by virtue of his exclusive, open and hostile

Page No. 9 of 13
possession as against the real owner. But he cannot achieve this result merely by saying
that he was a partner of the firm and the immovable property was being treated as a
property of the firm. Whatever other incidents may arise from such a situation it cannot
be the basis of a plea of adverse possession against a partner. I, therefore, hold that the
defendants have failed to establish that they have become the owners of the properties by
adverse possession or for that reason the suit of the plaintiff in respect of these two
properties is barred by limitation. Adverse possession only commenced in 1945, and if
we take that as a point of time of the commencement of adverse possession the
defendants' title had still to ripen and the suit was brought within time.

23. I have so far dealt only with the properties which are described by items 1 and 2 of
the Schedule A of the plaint. I shall now proceed to deal with the third property in that
schedule and the claim for accounts in respect of the two firms which are the
subject-matter of Schedule B, and the further claim in respect of the two mortgages
which are tile subject-matter of Schedule C of the plaint.

24. The third item of the immovable property in Schedule A is a plot of land with
building thereon bearing survey No. W. O. 6/6 situate in Wadhomal Odharam Quarters,
Bunder Road, Karachi. This property was purchased by a registered sale deed dated
11-7-39, Exh. D-23. The purchaser of this property is the firm itself, in whose favour the
sale deed stands. There is no evidence worth the name that this property was purchased
by the funds provided by Abdul Husain alone. I cannot accept the evidence of the
plaintiff or her husband that this property or the business and the movable assets of the
two firms exclusively belonged to Abdul Husain and this immovable property, item No. 3
of Schedule A, had been, only nominally purchased in the name of the firm. The plaintiff,
who was 25 years of age when she gave evidence on 24-11-60, could have no personal
knowledge of these facts and her husband to whom she was married in 1952 could not
have any better knowledge. Inasmuch as this immovable property was purchased by the
firm and considering that it was throughout treated as the partnership property I hold 1n
the absence of any reliable evidence to the contrary that it was not the exclusive property
of Abdul Hussain in which the plaintiff could claim 1/10th share. This being a partnership
property by virtue of the sale deed itself it was properly dealt with at the time of the
dissolution of the firm.

25. Coming to the Schedule B, which contains two items viz. the firm of Abdul Husain
Karimjee Marvi & Sons and Adam Trading Co., I cannot upon the evidence hold that the
four sons of Abdul Husain were not the partners of this firm and that the partnership was
only in name for the purpose of avoiding the incident of income-tax. It is an old firm and
was registered with the Registrar of Firms as far back as 1933 (Exh. D-31), and the
plaintiff has failed to prove that this partnership was merely in name and that Abdul
Husain continued to be the sole owner of all its assets. As regards the other firm viz.
Adam Trading Co., there is the evidence of Ibrahimjee to the effect that this firm was
started in the year 1948 and the two partners of it were his two sons who later on were
joined by his third and fourth sons. The partnership deed of this firm was executed in
1949 (Exh. D-30) and supports Ibrahimjee's version. This partnership was formed after
the dissolution of the firm Abdul Husain Karimjee Marvi & Sons. In this firm Abdul
Husain had clearly no right or interest.

26. There is another fatal objection to the plaintiff's claim in respect of the movable assets
of the firm Abdul Husain Karimjee & Sons. A suit for accounts and share of profits of a
dissolved partnership must be brought within 3 years of the date of dissolution. The
dissolution in this cast took place on 30-6-45 and the plaintiff's claim, therefore, to that
extent is clearly barred by time. Mr. Ramchandani relied upon a case of the Sind Judicial
Commissioner's Court reported in Ismail v. Tyeballi Essaji (24 S L R 81). It supports him
only to the extent that a partner can only sue for the settlement of accounts of the
partnership and the assets thereof, but this case does not help him with regard to the other
two immovable properties for the simple reason that I have found that those properties
had not become the property of the partnership.

27. With regard to the claim to the mortgages contained in Schedule C of the plaint, in the
first mortgage relating to plot No. W. O. 3/20, known as Premji Kunwarji Building, the
original mortgage deed clearly shows that the mortgagee was not Seth Abdul Husain

Page No. 10 of 13
Karimjee Marvi but the firm. The mortgagee described in the deed as Seth Abdul Husain
Karimjee Marvi & Sons by their managing partner Seth Ibrahimjee Abdul Husain Marvi.
This mortgage transaction was clearly in favour of the firm by means of a registered deed
of mortgage and in the absence of any reliable evidence to the contrary 9t must be held to
have been the property of the firm, and was thus properly dealt with on the dissolution of
the firm. The second mortgage was in favour of Mst. Kulsum Bai, defendant No. 4. This
mortgage was also by means of a registered deed and there is no reliable evidence upon
which I can hold that Kulsum Bai was merely a Benamidar and that the mortgage interest
belonged to Abdul Husain. 1, therefore, hold that the plaintiff has no right to any claim in
respect of these two mortgage transactions.

28. We then come to the point when the firm was dissolved which event was followed by
private partition of immovable properties amongst the sons and later on amongst the heirs
of Ghulam Husain who died in 1953. This deed of dissolution was executed on 30-6-45.
It is an unregistered document. But before this deed was executed there was a deed of
settlement dated 13th June 1945 whereby the immovable property bearing survey No. 8/8
situate in Wadhomal Odharam Quarters became the subject-matter of a charitable trust to
be utilized for maintaining a maternity home for the benefit of the Dawoodi Bohra Com-
munity. This property is not the subject-matter of the suit. But it was the contention of the
defendants that this trust was made solely at the instance of Abdul Husain Kurimjee and
in consideration of this he relinquished all his rights, title and interest in all other
properties including the assets and goodwill of the firm of Abdul Husain Karimjee Marvi
& Sons. This is a properly registered deed of settlement. A perusal of this deed clearly
shows that this charitable trust was created not merely by Seth Abdul Husain but by him
and all the four sons who were partners with him in the firm. The settlement for the
charitable purpose is made by the firm and the 5 settlers are the aforesaid partners. In
fact, in this transaction it was the eldest son Ibrahimjee who had played the leading part
and bad acted as the attorney of Seth Abdul Husain Karimjee Marvi for the purpose of
creating this trust. Ibrahimjee in his evidence has stated that this charitable trust bad been
made at the instance of Abdul Husain alone. I cannot accept this in view of the ciear
recital in the document itself Exh. D-24. We then come to the deed of dissolution, Exh.
D-25. It no doubt recites that in consideration of Abdul Husain receiving this property,
survey No. 8/8, (of which a Waqf was created at his instance) he had retired from the
partnership anti in effect would have no interest in the firm, or its assets, or the
immovable properties, or the H mortgages. This statement in order to constitute an
effective relinquishment in respect of immovable property would be inadmissible
inasmuch as this deed of dissolution is an unregistered document. Furthermore I have,
upon the basis of clear recital in the deed of settlement itself, held that that settlement was
done by all the five persons and not by Abdul Husain alone. But, apart from the
immovable properties, there is no doubt that this deed of dissolution is effective with
regard to all other assets of the firm.

29. The plaintiff and her husband and a tenant P. W. 3 have attempted to make out that
Abdul Husain in consequence of paralysis in 1945 had lost control of all his senses and
was completely unfit to understand the transaction which are evinced by the documents
Exhs. D-24 and D-25 and the subsequent disclaimer by him before the revenue
authorities. On this point however I am inclined to accept the statement of Ibrahimjee that
even though Abdul Husain had received a paralytic stroke he had more or less recovered
from it and was in complete control of his senses. This conclusion is borne out by the fact
that even though Abdul Husain got this stroke in 1945 lived for another 5 years and died
in 1950. I am, therefore, of the opinion that this is not a ground upon which the
dissolution etc., can be challenged. In view of the conclusion recorded by me my findings
on the issues are as follows:-

30. Issue No. 1.---Item No. 3 in Schedule A of the plaint (which contains the three
Immovable properties) belonged to the firm of Abdul Husain Karimjee Marvi & Sons.
Item Nos. 1 and 2 belonged to Abdul Husain Karimjee Marvi tbotagh from the date of the
dissolution deed it was held by the defendants adversely to Abdul Husain.

31. Issue No. 2.-There was a partnership since 1930 between Abdul Husain and his two
sons, namely, Ibrahimjee and Ghulam Husain in the first instance, and from 1940

Page No. 11 of 13
between Abdul Husain and his four sons, namely, Ibrahimjee, Ghulam I3usain, Hatim
Bhai and Fida Ali.

32. Issue No. 3.-The finding on issue No. 1 covers the first part of this issue which relates
to the properties described in Schedule A of the plaint, As regards Schedule B my finding
is that the movable assets and item No. 3 of Schedule A belonged to the firm of Abdul
Husain Karimjee Marvi & Sons. I further find that this firm had no connection with the
other firm, viz., Adam Trading Co. which belonged to the sons of Ibrahim.

33. Issue No. 4.---Yes, there was a deed of dissolution Exh. D-25, dated 30-6-45 between
Abdul Husain and his four sons. It is a valid document only as far as the movable assets
of the said firm are concerned.

34. Issue No. 5.-This issue was not pressed and was dropped.

35. Issue No. 6.-There is no dispute that the plaintiff would, according to Muhammadan-
Law, by which the parties are admittedly governed, be entitled to 1/10th share in t-he
property, it' any, left by the deceased Abdul Husain. I find accordingly.

36. Issue No. 7.-The defendants are not liable to render accounts as claimed and the
plaintiff's claim in this regard is barred by time.

37. Issue No. 8.-The plaintiff is not entitled to claim anything in respect of the two
mortgage loans which are the subject matter of Schedule C of the plaint.

38. Issue No. 9.---The plaintiff's suit with regard to accounts is barred by time, but her
claim in respect of her 1/10th share in the properties, viz. items 1 and 2 of the plaint is not
barred by time inasmuch as adverse possession commenced on 30-6-45 and the suit was
brought on 2-3-55.

39. Issue No. 10.-In view of my findings recorded above the only question which remains
for consideration is whether I can grant to the plaintiff the relief oz partition and separate
possession in respect of the properties, viz., items 1 and 2 of Schedule A of the plaint.

40. In para. 9 of the amended plaint this is what the plaintiff pleaded :

"That the value of this suit for the purposes of jurisdiction is Rs. 200 in the first
instance but as the parties are in joint possession of the property in suit, a fixed
Court-fee stamp of Rs. 15 is paid herewith under Article 17 (iv) (c) and Article 17
(vi) of the Court Fee Act."

The plaintiff thus framed the suit on the allegation of joint possession and paid a fixer:
Court-fee under Article 17 (vi) of the Court Fees Act on the ground that the relief for
partition was such which it was not possible to estimate at a money value. There is
nothing, in the evidence on the side of the plaintiff to show that she was in joint
possession of any of the properties. In fact, in view of overwhelming documentary
evidence to the contrary even if some evidence had been led it would not have been
possible to accept it. In consequence of the dissolution of the firm as evinced by Exh.
D-25 dated 30th June 1945. Abdul Husain retired from the partnership. The sons then
entered into a fresh partnership by a deed dated 24th November 1945, Exh. D-26. On the
dissolution of the firm mutation in respect of the immovable properties in question was
effected in favour of the new firm which consisted of the 4 sons, namely, Ibrabimjee,
Ghulan Husain, Hatim Bhai and Fida Ali. This is in the evidence of Ibrahimjee which is
supported by the extracts of property register, Exhs. D-32/5 and D-32/7. There was then
an oral partition of these immovable properties including the property bearing item No. 3
in Schedule A of the plaint, whereby the property item No. 1 fell to the share of Ghulam
Husain and Fida Ali while the property item No. 2 went to defendant No. 1 Ibrahimjee
and the property item No. 3 went to defendant No. 2 Hatim Bhai. This division was duly
recorded in the Record of Rights, and is evidenced by extracts of the property register,
Exhs. D-32/6, D-32/8 and D-32/9. After this private partition a fresh partnership deed was
drawn up between the four sons on 10th March 1947 and no immovable property was
shown as an asset of that firm. Thereafter, the sons and, after the death of Ghulam Husain

Page No. 12 of 13
in 1953, his heirs, have been in exclusive possession of the property which fell to their
share in the private partition. Where then is the question of joint possession by the
plaintiff ? No attempt was made to amend the plaint even though it had been conceded
that the adverse possession in respect of the immovable properties commenced from 30th
June 1945 which is the date of the deed of dissolution. That being so, the suit being based
on the allegation of joint possession must fail. I may refer to a Bench decision of the
Calcutta High Court reported in Premananda v. Dhirendra Nath Ganguly and others (A I
R 1950 Cal. 397). In that case also a fixed Court-fee of Rs. 15 had been paid and after
both the parties had examined their witnesses and produced documents and closed their
evidence the learned trial Judge heard the arguments and then passed an order directing
the appointment of a Commissioner to ascertain the proper valuation of the suit property
as he was of the opinion that ad valorem Court-fees on the value of the property was
payable on the plaint. This order was challenged by an application in the High Court, and
their Lordships held as follows:-

"Whatever may transpire in the evidence, the plaint remains the same until and
unless it is amended, and a conclusion on a consideration of the evidence that the
plaintiff is or is not in possession cannot affect the nature of the suit as instituted
in the plaint. In this case the plaint as already stated was for partition on the
allegation of joint possession with other co-sharers and so long as that plaint is not
amended it must be held that the Court-fees paid are sufficient, no matter what
may transpire in the evidence.

If and when a Court comes to the conclusion that the allegation of joint possession in the
plaint is not borne out by 1 the evidence the obvious result would be that the plaintiff's
suit would fail unless the plaint is suitably amended and further Court-fees paid."

41. In the present case also the plaintiff's suit for partition was based upon the allegation
of joint possession, which allegation has been decisively disproved and the plaintiff's
claim with regard to partition and separate possession of the immovable properties, items
Nos. 1 and 2, must be dismissed on the ground stated above. Her claim for mesne profits
in respect of the said property must also fail. With regard to the property, item No. 3, and
the claim for accounts in respect of the two firms and the share in the two mortgaged
transactions I have already held that she is not entitled. I, therefore, dismiss the plaintiff's
suit, but having regard to all the circumstances of the case make no order as to costs.

K. B. A. Suit dismissed.

Page No. 13 of 13
P L D 1961 Supreme Court 349

Present: A. R. Cornelius, C. J., S. A., Rahman, B. Z. Kaikaus and Hamoodur


Rahman, JJ

AJIRUDDIN MONDAL AND ANOTHER-Appellants

versus

RAHMAN FAKIR AND OTHERS-Respondents

Civil Appeal No. 39-D of 1960, decided on 28th April 1961.

(On appeal from the judgement and order of the High Court of East Pakistan, Dacca,
dated the 28th May 1959, in appeal from Original Decree No. 96 of 1956, read with the
judgment dated the 8th March 1960, in Application for leave to appeal to the Supreme
Court No. 72 of 1959).

(a) Special leave to appeal to Supreme Court------

---Granted where law point involved required an authoritative decision by Supreme


Court-[Scot for partition-Jurisdictional value of suit when plaintiff alleges joint
possession -(East Pakistan case)]-Court Fees Act (VII of 1,370), Sch. II, Art. 17
(v-a)-Suits Valuation Act (VII of 1887)-Constitution of Pakistan (1956), Art. 160.

(b) Stare decisis-----

----Principle-Application-[Jurisdictional value of partition suit where plaintiff" is -in joint


possession]-Principle applied (Cornelius, C. J.)-Principle not applied (S. A. Rahman and
Hamoodur Rahman, JJ.).

(c) Suits Valuation Act (VII of 1887)------

----S. 11-Partition suit by plaintiff, in joint possession-Value for jurisdiction-Plaintiff


fixing at value of entire estate, High Court, holding that such value is value of plaintiff's
share, returning Memorandum of appeal to be presented to District Court-Held (per
Cornelius, C. J.) Supreme Court could make a direction under S. 11 even though no
ground of appeal was taken in terms of that section.

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

-----Sch. II, Art. 17 (v-a) read with S. 7 (vi-A) and with Suits Valuation Act (VII of 1887),
Ss. 8 & 9-(East Pakistan cave)-Partition suit-Value for purposes of jurisdiction where
plaintiff is in joint possession-Value of share of plaintiff (per majority: S. A. Rahman,
Kaikaus and Hamoodur Rahman, JJ.)-Value of entire estate (per Cornelius, C. J.)-[Patak
Chandara Haldar 9 D L R 190 and Khayertullah Mondal and others v. Kamala Kanta
Saha and others P L D 1960 Dacca 565 approved (by majority) ; disapproved (by
Cornelius, C. J.). Bai Shevantibai v. Janardhan Raghunath Warick 71 I A 142
distinguished (by S. A. Rahman, J.), ref. (by, Kaikaus, J.) ; Rajani Kanta Pal v. Raja Bala
Dasi I L R 52 Cal. 125 considered (by Hamoodur Rahman, J.)]

Held (by majority : S. A. Kahman, Kaikaus and Hamoodur Rahman, JJ.) that the value
for jurisdictional purposes of a suit for partition is the value of the plaintiff's share in the
joint property, where the plaintiff is in joint possession.

[The above view was based mainly on the application of the principle that the value of
suit for purposes of jurisdiction is to be determined by the value of the relief sought, and
further, on the necessity to avoid the anomaly arising out the other view (viz., that such
value is the value of the entire estate) when compared with provisions of section 7 (vi-A),
Court Fees Act, 1870, which prescribes the value of the plaintiff's share as the value for
jurisdiction where the plaintiff is excluded from possession].

Page No. 1 of 19
Patak Chandra Haldar 9 D L R 190 and Khayertullah Mondal and others v. Kamala Kanta
Saha and others P L D 1960 Dacca 565 approved.

Bai Shevantibai v. Janardhan Raghunath Wariek 71 I A 142 distinguished.

Rajani Kanta Pal v. Raja Bala Dasi I L R 52 Cal. 125 considered.

Held (per Cornelius, C. J.) that the value of a partition suit, where the plaintiff' is in
possession should be the value of the entire joint property.

[This view was based mainly on the necessity to uphold, consistently with the principle
of stare decisis, a course of decisions in Bengal by which litigants have been guided for
half a century. The question, indeed, should not (according to Cornelius, C. J.) have been
made the subject of a judicial decision but should rather have been dealt with, within the
field of "subordinate legislation" under section 9, Suits Valuation Act, 1887, which
empowered High Courts to fix jurisdictional values of suits in certain cases].

Patak Chandra Haldar 9 D L R 190 and Khayertullah Mondal and others v. Kamala Kanta
Saha and others P L D 1960 Dacca 565 disapproved.

M.A Khandker Senior Advocate Supreme Court (Shafiqur Rehman, Abdul Hakim and
Abdul Wadud Chowdhury Advocates Supreme Court with him) instructed by Abdul
Wadood Mian Attorney for Appellants.

Respondents : Ex parte.

Date of hearing : 13th April 1961.

JUDGMENT

CORNELIUS, C. J.-I have given to the question raised in this appeal my best
consideration and my view is that the proper order which should be made in this case is
one allowing the appeal and directing that the Memorandum of Appeal which Ajiruddin
Mondal and Khairat Ali Mondal had filed before the High Court should be recalled and
proceeded with in that Court. I regret greatly that in coming to this conclusion I find
myself in disagreement with my learned brethren. The occasion is one however which I
consider it appropriate to use for the purpose of examining a situation which has been
apparently in an unsatisfactory state for a considerable number of years.

The relevant facts to be stated for the purpose of my judgment lie within a small
compass. The appellants before us were plaintiffs in the suit, claiming as
successors-in-interest to certain defendants from whom they had purchased a share in a
joint family property. Stating that they were owners and in possession of the share of their
vendors, they claimed to be put into separate possession of a defined share in the
property. The suit was thus by co-sharers in a joint property claiming to be joint
possessors of such property and seeking to have their share demarcated and to be placed
in separate possession. The suit fell clearly under item (v-a) in Article 17 of the Second
Schedule to the Court Fees Act, and was taxable with a fixed court-fee of Rs. 20. The
item in Article 17 reads as follows and it will be convenient to reproduce along with it
item (vi) in the same Article :-

---------
"(v-a) for partition and separate possession |
of a share of joint family property or of joint |
I property, or to enforce a right to a share in | Twenty rupees
I any property on the ground that it is joint |
family property, or joint property if the plaintiff |
is in possession of the property of which |
he claims to be a coparcener or co-owner. |
--------

Page No. 2 of 19
--------
(vi) every other suit where it is not possible |
to estimate at a money-value the subject | Twenty rupees
matter in dispute, and which is not otherwise |
provided by this Act." |
---------

A fee of Rs. 20 by way of court-fee was paid, but as to jurisdiction, it was placed in the
plaint at Rs. 5,350, being the market value of the entire joint estate, out of which the
plaintiffs claimed their separate share. The question which has arisen in this case is
whether for the purpose of jurisdiction, the suit was correctly valued at the market-value
of the entire estate, and whether the value should not be confined to the interest claimed
by the plaintiffs in the estate. The point appears to be of importance only for determining
the forum of the trial and the consequent appeal. Under the law in force, if the suit had
been correctly valued at a sum in excess of Rs. 5,000 for the purposes of jurisdiction, the
appeal Jay in the High Court where the Memorandum of Appeal war, actually presented.
If, on the other hand, the value be placed at less than Rs. 5,000, the appeal would fall to
be heard by a District Judge. The finding of the High Court is that the correct value for
the purpose of jurisdiction was below Rs. 5,000, and accordingly the Division Bench
returned the Memorandum to the appellants for presentation in the Court of the District
Judge.

My first .reason for thinking that this appeal should be allowed is that as the point of
valuation for purposes of jurisdiction was not taken in the Court of first instance, under
section 11 of the Suits Valuation Act, no objection on the ground of over-valuation or
under-valuation should have been entertained by the appellate Court, i.e. the High Court,
even if that Court were of the opinion that the valuation was wrong, unless the Court held
the opinion that "`the over-valuation or under-valuation thereof has prejudicially affected
the disposal of the suit (or appeal, on its merits". On the facts, as they appear, no such
prejudice can be found. I observe that the learned Judges of the Division Bench which
dealt with the application of the appellants for a certificate to enable them to appeal to
this Court, expressly referred to this section, and suggested that if the appellants were to
move a petition for review of the judgment directing return of the Memorandum, they
could be confident that the matter would be dealt with under section 11 aforesaid. The
suggestion was not accepted, and no review was attempted, nor was section 11 mentioned
in the petition for special leave to appeal, or in the concise statement of the appellants, in
this Court. I consider however that sitting in finial appeal, and having power to do full
justice in the case, it is open to us to make a direction under section 11, even though the
point was not referred to in his arguments before us by Mr. M. H. Khundkar. The Courts
have no interest in multiplying proceeding, and if the dispute between the parties can be
brought to finality more swiftly by the appeal being dealt with in the High Court,
assuming what is obvious, that this can be done without prejudice to its disposal on the
merits, that would be of advantage to all concerned.

Mr. Khundkar's principal objective in bringing this appeal for a final decision by this
Court is to obtain an examination of the correctness of a recent decision on the point by
the Dacca High Court, namely, the case published as Khayertullak Mondal v. Kamala
Kanta Saha (P L D 1960 Dacca 565). It was held in that case that the correct valuation of
a suit such as the present one, for purposes of jurisdiction is not the value of the whole
estate, as has been believed and followed in this region for over half a century, but is the
value of the share which the plaintiff seeks to secure, in separate possession. After a
careful examination of the relevant provisions of the Court Fees Act and the Suits
Valuation Act, I have formed the opinion that the question of valuation for jurisdiction in
such a suit cannot be settled by mere judicial decision on a priori grounds, but must be
based either upon interpretation or interpretative application of the provisions of the Suits
Valuation Act, or if this be not possible, then by the method of subordinate legislation
under section 9 of that Act.

That section empowers the High Court, with the previous sanction of the Provincial
Government, to make direction fixing the valuation for purposes of jurisdiction in suits
not falling within paragraphs (v) and (vi) and clause (d) of paragraph (x) of section 7 of

Page No. 3 of 19
Court Fees Act, and which possess the quality that in the opinion of the High Court, their
subject-matter does not admit of being satisfactorily valued. It appears that no directions
have been issued under this section by the Dacca High Court or by its predecessor in this
region, namely, the Calcutta High Court. That is not the case with all the High Courts.
For instance, the Lahore High Court has issued an elaborate set of rules on the subject,
which is supported by a lengthy schedule. There are specific pr, visions in this schedule
for cases falling under section 7 (iv) (b), Court Fees Act relating to suits to enforce the
right to share in any property on the ground that it is joint family property. For the
purposes of the Suits Valuation Act, it is prescribed by the Lahore High Court that where
the subject-matter is land, the valuation shall be fixed under section 4 of the Act read with
rules made by the Provincial Government under section 3, and this will be in relation to
the reliefs sought as stated in the plaint. The Punjab Rules under section '3 and the Lahore
High Court Rules under section 9 of the Suits Valuation Act will be found printed as
Appendix V to the valuable commentary on the Court Fees Act and the Suit Valuation Act
by Hasu, published by the Eastern Law House Limited, Calcutta.

With reference to suits of the nature here in question, it has been settled for over 50 years
by a chain of decisions given by the Calcutta High Court, that the correct valuation is the
value of the whole estate in which the share is claimed. Suits of this nature fall within the
general description stated in section 7 (iv) (b), Court Fees Act, viz., suits "to enforce the
right to share in any property on the ground that it is joint family property. The amount of
court-fee payable on the suit was ad valorem, in proportion "to the amount at which the
relief sought is valued in the plaint or memorandum of appeal". This sub-clause was
omitted from section 7, Court Fees Act by a Bengal amendment as far back as 1935. It is
important to note this, as it is a point of appreciable weight to be borne in mind in
considering this case that there is a regional aspect to this law. That is apparent from the
power given to the Provincial Government by section 3 of the Suits 'valuation Act to
make rules for determining the valuation of suits under certain clauses in section 7 of the
Court Fees Act, which values are to apply also, under section 4 of the Suits Valuation Act,
for the valuation of properties in suits in cases falling under section 7 (iv), Court Fees
Act, as well. It appears even more prominently from section 9, Suits Valuation Act which
has already been mentioned. These provisions have the effect of impressing upon the
mind the necessity of regarding the law and its application in a regional manner, and
therefore, of obliging the Court to give due weight to such a consideration as that, in a
particular 'region over a long period of years, the law has been applied for the resolution
of disputes affecting property in a particular way. A long settled practice of a High Court
in a matter of procedure not governed by rules has often to be allowed a binding effect,
since the rights of litigants may be materially affected hereby. The case is much more
clear where the question is one of jurisdiction of the Courts which are established in a
graded series, to which the litigant classes are entitled to have recourse, according to their
respective jurisdictions as settled by law, in which expression, decisions of long-standing
by the superior Court of the region must be allowed. a place. It cannot be denied that the
right to approach a Court of superior jurisdiction rather than one of inferior jurisdiction,
is a valuable right, and if upon a long settled course of decision by the High Court of
particular region, litigants within that region have been allowed the right upon a certain
view as to valuation, to approach a superior Court of appeal, whereas upon a different
view, they 'might have been required to go to an inferior Court, I am inclined to the view
that the right reserved by the settled course of decision within that region should not
lightly be disturbed. It is a case which in my judgment can be brought within the
principle of stare decisis in the general public interest, and for the enforcement of due
discipline in the operation of the Courts. If there to be disturbance, I am clearly of the
opinion that it should be effected, in a case like the present, by the method of subordinate
legislation under section 9, Suits Valuation Act.

Now, it had been held by the Calcutta High Court that on a correct interpretation of the
Court Fees Act, no suit affecting land could be brought within section 7 (iv) (b) of the
Court Fees Act, and the reason given was as follows, namely, that where the plaintiff is
out of possession, he has to sue for recovery of possession by partition and must pay ad
valorem fees as for a suit for possession, while if he is in joint possession, then the suit is
one filling under item (vi) in Article 17 of the Second Schedule to the Court Fees Act, i.e.
a suit, "where it is not possible to estimate at a money-value the subject-matter in
dispute" for which a fixed fee is provided. In other words, it was held to be not possible

Page No. 4 of 19
to estimate in terms of money the exact advantage which the plaintiff would enjoy from
having his joint possession of the entire estate converted into separate possession of his
defined share in the estate. That being the view, it was logical to conclude that the
plaintiff was unable to set any value upon the relief which he sought in such a case, and
no ad valorem court-fee could therefore be charged, and therefore, a fixed court-fee was
provided in Schedule It. It is mostly with regard to suits of this nature, where the
court-fee is fixed, and therefore the machinery of section 8, Suits Valuation Act, making
the valuation for purposes of jurisdiction equal to that for purposes of court-fee is not
available that require action under section 9 of that Act to enable fixation of the
jurisdictional valuation.

It appears that in implementation of this view the Court Fees Act was amended for
Bengal. Firstly, sub-clause (b) was omitted from section 7 (iv) of the Court Fees Act.
Secondly, a new clause (vi-A) was added in the same section, which provided that where
the plaintiff having been excluded from possession of the joint family property, files a
suit for partition and separate possession or otherwise to in-force a right to a share, he
shall pay court-fees "according to the market-value of the share in respect of which the
suit is instituted". In such a case, by the operation of section 8, Suit Valuation Act, the
valuation for purposes of jurisdiction would also be the market-value of the plaintiff's
share in respect of which he was suing. At the same time, as these two amendments were
made, a third amendment was made for Bengal in Article 17, by addition of an item (v-a)
which provided a fixed fee now standing at Rs. 20 as the court-fee payable on suits by a
plaintiff in possession who seeks partition and separate possession of a share of joint
property or to enforce a right to a share in such property. Coming as this item does
immediately before item (vi) which relates to every other suit where it is not possible to
estimate the money value of the subject-matter in dispute" the implication seems clear,
viz. that in the view of Legislature, a suit by a plaintiff in joint possession, for partition,
and for separate possession of his share fell with the category of suit in respect of which
the relief sought could not be estimated at a money value. As we have seen, the method
of requiring the plaintiff to value the relief which he, seeks was rendered unavailable in a
suit of this kind by the excision of clause (b) from section 7 (iv) for the Bengal Province.
The question of what value was to be placed upon the suit for purposes of jurisdiction
was thus left at large. It was settled by the Calcutta High Court over a series of years in
the following way, namely, that in such suits the valuation for the purposes of jurisdiction
was the value of the entire estate to be partitioned. Arguments have been advanced in
support of this view, with which I find myself in sympathy, although I entirely disagree
that a judicial decision was the appropriate method by which the question was to be
resolved. To my mind there can be no doubt that when one of a number of co-sharers,
whether he be in possession or out of possession, seeks to obtain severance of his share,
so that he can enjoy it separately and without interference from any of the other
co-sharers, he is attempting something which is calculated to disturb the settled
occupation and enjoyment by each of the other co-sharers of the whole estate. So long as
that estate remains joint, he and each of the other co-sharers has a right in respect of
every particle of the estate, to have and to enjoy such particle and it must be supposed
that prior to the suit, those rights have been reconciled with each other in an orderly
fashion, and have continued to be thus enjoyed over a period of years. Disturbance in the
enjoyment of these rights is an interference which affects every particle of the estate in
this sense that no co-sharer is secure in his possession or enjoyment of any such particle
until the suit is finally decided, and the plaintiff's share has been partitioned off. Such
disturbance will be of an extreme nature where the plaintiff was previously out of
possession. In that case every particle of the land could be liable to be taken forcibly out
of the possession and enjoyment of the co-sharers 'in possession, and this makes it plain
that the jurisdiction of the Court pervades the entire estate and is not confined to the
fraction of it which the plaintiff may eventually be found entitled. These and other
aspects of the matter have been fully dealt with in a long series of judgments delivered
not only in the Calcutta High Court, but also in the Patna High Court and the Madras
High Court. It is true that in a number of other High Courts; a contrary view has been
taken, namely, that the valuation for the purposes of jurisdiction in suits of this kind is
limited by the value of the share which the plaintiff is seeking, but without accepting that
these High Courts possessed, any more than did the Calcutta Patna and Madras High
Courts, the right in law to 'fix the valuation irrespective of interpretation of provisions
made by or under the Suits Valuation Act, the reason may fairly be advanced for not

Page No. 5 of 19
allowing the view of the Courts other than the Calcutta High Court to carry the same
weight as the view of that High Court that those Courts were laying down the law for
other regions. The law of suits valuation was expressly framed by the Central Legislature
of the sub-continent so as to give definitive weight to control by regional authorities, both
Executive and Judicial.

But even excepting the argument by which the view of the Calcutta High Court is
supported in regard to the true valuation of suits of the nature here in question. I am of
the opinion that in coming to that conclusion on the judicial side, and leaving the matter
at that, there has been defeat of the legislative provision by which the resolution of this
question was to be effected in a different mode, namely, under section 9 of the Suits
Valuation Act. The decision, in effect, has the quality of legislation in a field reserved by
the relevant statute for subordinate legislation. . For the mode of section 9, Suits
Valuation Act, it was necessary that there should first be a direction by the High Court.
Speaking generally, one may say that the settled view of the High Court expressed in a
course of decisions lasting over fifty years would have at least as much effect as a
direction, although, in form it might not be the same thing. But for the purposes of
section 9 a mere direction by the High Court was not sufficient. It was necessary also that
the direction should be supported by the sanction of the Provincial Government. The
necessary provision was never made in this mode. Yet, if regard be had to the purpose of
section 9, it might be thought that the Calcutta High Court had fulfilled it in a different
mode, for the true 'purpose could only be to save the litigant public from falling into
doubts and difficulties such as the difficulty of being pushed from one Court to another,
by settling it once for all what the valuation should be for the particular type of suit.
Through the firm decision of the Calcutta High Court that in suits for partition, the Courts
having jurisdiction would be those Courts which had jurisdiction in respect of the entire
estate in terms of money-value, litigants had been enabled over a long series of years to
determine for themselves in which Court their suits and appeals of the relevant kinds
properly lay.

The effect which has been produced in relation to the situation by the judgments of the
Dacca High Court delivered in the case of Patak Chandra Haldar (9 D L R 190) and the
more recent case of Khayertullah Mondal and others v. Kamala Kanta Saha and other' is
to diminish the valuation and bring it down to the value of the share which the, plaintiff
claims. These decisions have been given within the last four years, and do not possess the
sanction of long standing, and moreover the present is the first occasion when the matter
has come up before the Supreme Court for examination The objection that anything in the
way of a settled course of practice would be disturbed if the Full Bench decision in the
last mentioned case were upset, can hardly be taken.

In the view which I take of the matter, viz. that the definitive resolution of the question
has been placed by the Legislature within the sphere of subordinate legislation, there has
been an irregularity in the use by the Calcutta High Court of the method of judicial
decision to control the relevant jurisdiction, and this error is being repeated in the
decision by the Dacca High Court, varying from that Calcutta decision. It is in my view,
time that the matter is looked. at in the correct light, and the true intention of the
Legislature is carried out. There is no doubt that to ascertain exactly in terms of money
the advantage to a plaintiff who is in joint possession of a joint estate, obtaining by means
of a suit, separate possession of a demarcated share, is impossible and the case therefore
falls squarely within section 9 of the Suits Valuation Act. A fixed court-fee gets over the
difficulty from the taxation point of view, but provides no aid, such as the ad, valorem
court-fee provides, for ascertaining the correct jurisdictional value. I consider that the
proper course in the case is not that the, Dacca High Court should alter the long
established line of decisions by which litigants in the region have hitherto been guided to
their advantage, although it appears clearly enough to be an encroachment into the sphere
of legislation, but that it should undertake the duty of legislation under section 9 of the
Suits Valuation Act. Until that is done, my opinion is that the rule of stare decisis requires
that the previous view of the Calcutta High Court should be allowed to prevail.

If my view be correct, this appeal should be allowed and the High Court should be
directed to recall the Memorandum of Appeal from the District Judge, and to dispose of it
in accordance with law. But as my learned brethren are of the opposite view, and that is

Page No. 6 of 19
also the view of the majority of the Bench, the appeal will be dealt with as proposed by
them, viz. that it will be dismissed.

S. A. RAHMAN, J.-This is a plaintiffs' appeal brought by special leave of this Court and
raises the question whether in a suit for partition of joint property by a person, claiming
to be in joint possession thereof, jurisdiction is determined by the value of the share of
the plaintiff in the property or the value of the joint property as a whole. The question has
arisen in the following circumstances.

The plaintiffs-appellants instituted partition Suit No. 58 of 1954 in the Court of the
Subordinate Judge at Bogra, for partition by metes and bounds, of their twelve annas
share in 8.85 acres of land, of which they claimed to be in joint possession with the
respondents. The entire lands in suit were valued at Rs. 5,350 for the purposes of
jurisdiction. A fixed court-fee of Rs. 20 was paid, as provided for in Article 17 (v-a) of
Schedule II to the Court Fees Act. The trial Judge dismissed the suit on the 22nd June
1955 and the plaintiffs appealed to the High Court. As the value of the plaintiffs' twelve
annas share in the property in suit was less than Rs. 5,000 the High Court held that the
appeal lay to the District Judge. Under section 21 of the Bengal, Agra and Assam Civil
Courts Act, it is only appeals in suits in which the subject-matter is valued at over Rs.
5,000 that an appeal lies to the High Court. The Memorandum of appeal was, therefore,
directed to be returned to the appellants for presentation to the proper Court. An
application for grant of a certificate to appeal to this Court was also refused.

The Court Fees Act, 1870, which is a Central Act, was amended by Provincial Act VII of
1935 and paragraph 7 (vi-A) was inserted therein to read as follow:-

"In suits for partition and separate possession of a share of joint family property or of
joint property, or to enforce a right to a share in any property on the ground that it is joint
family property or joint property-

if the plaintiff has been excluded from possession of the property of which he claims to
be a co-parcener or co-owner according to the market-value of the share in respect of
which the suit is instituted."

Under this provision, it is clear that if a plaintiff out of possession, seeks either joint
possession of joint property or separation of his own share and its enjoyment in severalty.
he will have to pay court-fee ad valorem on the market value of his share so far as this
Province is concerned. At the same time, in Schedule II to the Act, item (v-a) was
inserted in Article 17 thereof, which provided for a fixed court-fee in suits "for partition
and separate possession of a share of joint family property or of joint property, or to
enforce a right to a share in any property on the ground that it is joint family property or
joint property, if the plaintiff is in possession of the property of which he claims to be
co-parcener or co-owner."

Section 8 of the Suits Valuation Act, 1887, enacts: "Where in suits other than those
referred to in the Court Fees Act, 1870, section 7, paragraphs (v), (vi) and (ix), and
paragraph (x), clause (d), court-fees are payable ad valorem under the Court Fees Act,
1870, the value as determinable for the computation of court-fees and the value for
purposes of jurisdiction shall be the same". It will be noticed that this section contains no
exception in favour of suits contemplated by section 7 (vi-a). In a case, falling within
section 7 (vi-a), therefore, the jurisdictional value would follow the value of the plaintiff's
share fixed for purpose of court-fees. This section, however, could not be pressed into
service for cases falling within Article 17 (v-a) of the Second Schedule to the Act, as only
a fixed court-fee as contrasted with ad valorem court-fee is payable in such suits. No
rules have been framed under section 3 of the Suits Valuation Act by the Provincial
Government or under section 9 thereof by the High Court. There is thus no distinct
provision of law under which the jurisdictional value in a suit of the type under
consideration could be fixed.

The question that falls for determination is what should be regarded as "the value of the
suit" within the meaning of section 21 of the Bengal, Agra and Assam Civil Courts Act in
such cases. The Calcutta High Court apparently has been following the view that the

Page No. 7 of 19
value of the suit shall be the value of the whole property if the plaintiff was in joint
possession, but that if he was out of possession, the value of his share alone should be the
basis for the jurisdictional value. The Dacca High Court has differed from this view in a
Full Bench decision, reported as Khayertullah Mondal v. Kamala Kanta Saha (P L D
1960 Dacca 565). It was held therein "that in suits for partition where the plaintiff claims
to be in joint possession, if the suit as framed discloses that the object of the suit is
merely to separate the share of the plaintiff from that of the defendant, the value of the
share would determine the forum of the suit". While discussing this question, the learned
Judges have pointed out that the view expressed by the Calcutta High Court. though
shared by the Patna High Court, has been dissented from by several other High Courts in
India. It is contended before us, that the view that found favour with the Dacca High
Court is erroneous in so far as it extends the principle, governing suits for partition when
the plaintiff's is out of possession embodied in statutory provisions, to cases where the
plaintiff is in joint possession of the property in suit. The very fact, that the Legislature
has not provided for such a contingency, it is urged, should have persuaded the learned
Judges not to disturb the long line of decisions given by the Calcutta High Court and
applied to the area which is now East Pakistan. Learned counsel for the appellants has
apparently in mind the principle of stare decisis. That principle has been successfully
invoked where interference with a long-accepted view would disturb settled rights to
property. In a matter of fixing the forum for a trial or appeal, however there would be no
such pressing consideration militating against change of precedent.

It was argued before the Dacca High Court and has been reiterated before us that a
partition suit is one in which really a joint declaration of the rights of all persons
interested in the property is sought, that in such a suit every defendant has a right to ask
to have his own share divided, that a co-sharer claiming partition claims his respective
share in every inch of the property sought to be partitioned, that the question of retention
of possession of particular parcels of the land by some of the parties may arise and that,
therefore, the subject matter of the suit should be regarded as the whole property and not
merely the share claimed by the plaintiff. The Dacca High Court has opined that in
determining the question of jurisdictional value, the allegations made by the plaintiff
alone must be considered and that the pleas raised by the defendants should not affect the
question. It was pointed out by the learned Judges that in suits of this nature; the plaintiff
does not seek to enforce a right to a share in the property on the ground that it is joint
property but seeks to obtain separate possession of a share therein and thus merely asks
for a change in the mode of enjoyment thereof The view was, therefore, expressed that
the same principle should be adopted for fixing the jurisdictional value in suits falling
within Article 17 (v-a) of the Second- Schedule as prevails in the case of suits covered by
section 7 (vi-a). Reference was made to a 'decision of the Privy Council, reported as Bai
Shevantibai v. Janardhan Raghunath Warick (71 I A 142) as lending support to this view.
In that case, appellant's claim for partition of joint family property had been dismissed by
the Courts below on the ground of limitation. It was held that the value of the
subject-matter in dispute on appeal to the Privy Council for the purposes of section 110 of
the Code of Civil Procedure, was the value of the share of the joint family property in
respect of which the appellant was claiming. Indeed, this proposition was not con-
troverted before the Privy Council. Their Lordships went on to examine whether the
decree, refusing partition on the ground that the claim was barred by the law of limitation
involves directly or indirectly some claim or question to or `respecting' the joint family
property as a whole". It was observed by the Privy Council that their Lordships "feel no
doubt that a question as to the title of the plaintiff to the share which she claims in the
joint property does not become a question respecting -the whole of the joint family estate
merely because if her title is established it will result in the joint family estate being
partitioned'". This remark, in my opinion, affords some assistance to the position adopted
by the Dacca High Court.

The matter may be looked at another way. If in a suit for partition, where the plaintiff is
in possession of the joint property, the forum is determined by the value of the whole
property, while in case the plaintiff is out of possession, only the value of his share is
taken as the basis for the jurisdictional value; it would involve the anomaly that a suit
asking for a higher relief would be adjudicated upon in a lower forum and that asking for
a lesser relief which was included in the other suit might go to a 'higher Court. The merit
of the view taken by the Dacca High Court is that it avoids such an anomaly. I would,

Page No. 8 of 19
therefore, hold that the Dacca view should be upheld as in consonance with the general
principles and the spirit of the statutory provisions governing suits for partition by
plaintiffs who are out of possession. I would, dismiss the appeal, but in view of the
circumstances, leave the parties to bear their own costs in this Court.

B. Z. KAIKAUS J. -This is an appeal by special leave against the order of High Court of
East Pakistan refusing to entertain an appeal on the ground that it lay to the District
Judge.

The suit out of which this appeal arises was one for partition of land. The-plaintiff had
alleged in the plaint that he was in joint possession of the property in suit. He had valued
the - whole property at Rs. 5,350, he himself being entitled to a 12 anna share in it. The
suit having been dismissed he filed an appeal to the High Court. Following Khayertullah
Mondal and others v. Kamale Kanta Saha and others (P L D 1960 Dacca 565) which is a
Full Bench case, the learned Judges of the High Court held that value for jurisdiction of
the suit was the value of the share of the plaintiff, and that being below Rs. 5,000 the
appeal lay not to the High Court but to the District Judge in accordance with section 21 of
the Bengal, Agra and Assam Civil Courts Act which provides that in cases where the
value of the original suit is less. than Rs. 5,000 appeal will lie to the District Judge. The
sole question in the present appeal is whether the value of the original suit is the value of
the share of the plaintiff or the value of the whole of the joint property in suit.

The value far jurisdiction has to be determined in accordance with the provisions of the
Suits Valuation Act. The scheme of that Act is that by reference to classes of suit, as they
appear in the Court Fees Act, it provides by its section 8 that the value for jurisdiction for
some of those classes will be the same as the value for court-fees; by its section 9 it
authorizes the High Court to frame rules regulating the value for jurisdiction for some
classes, and for the remaining classes it makes no provisions at all except that, by section
8 it authorizes the Provincial Government to frame rules for determining the value of land
or an interest in land. In a case which is not covered either by section. 8 or by a rule
framed by the High Court or the Provincial Government the value for jurisdiction will be
the true value of the subject-matter of the suit to be determined by the Court itself. '

The case before us is one for which there is no provision either in section 8 or in any rule
and the Court has itself to determine the proper value of the subject-matter of the suit.
The, question therefore to which the Court would have to address itself in a case like the
present would be what is the subject-matter of a suit for partition, and this is the point
which will ultimately have to be discussed -in this judgment. But before proceeding to
discuss it I have to mention an aspect which is almost conclusive of the matter unless we
are prepared to introduce a serious inconsistency in the-assessment of jurisdiction values.
That aspect is that so far as East Pakistan is concerned the jurisdictional value of a suit
for partition in case the plaintiff is out of possession is in accordance with section 8 of the
Suits Valuation Act the value of the plaintiffs' share. For an explanation of this matter it is
necessary to make some reference to Provincial amendments made .to the Court Fees Act
in Bengal. In 1935 by a Provincial amendment section 7 (iv) (b) of the Court Fees Act
which related to a suit to enforce a right to a share in joint family property was deleted
and section 7 (vi-a) was added which ran:

"In suits for partition and separate possession of a share of joint family property or of
joint property, or to enforce a right to a share in any property on the ground that it is joint
family property or joint property-

If the plaintiff has been excluded from possession of the property of which he claim to be
a coparcener or co-owner according to the market value .of the share in respect of which
the suit is instituted."

This subsection applies not only to joint family property but to all joint property and fixes
the value for the purpose of court-fee as the share of the plaintiff. At the same time, to
Article 17 of Schedule II, sub-article (v-a) was added which runs:-

----------
"in Bengal (v-a) for partition and separate |

Page No. 9 of 19
possession of a share of joint family property |
or of joint property, or to enforce a right to |
a share in any property on the ground that | Fifteen rupees
it is joint family property or joint property. |
If the plaintiff is in possession of the property |
of which he claims to be a coparcener or co |
owner." |
------------

According to this provision a fixed court-fee was to be paid in a case where the plaintiff
was in possession of the joint property. Previous to this addition in Article 17, the various
High Courts of India had taken the view that the case where a plaintiff was in possession
would fall under Article 17 (vi) which provides for a suit the subject-matter of which it is
not possible to estimate in money value.

On account of the introduction of section 7 (vi-a) the value for jurisdiction of a suit for
partition where the plaintiff was out of possession became fixed at the value for
court-fees on account of section 8 of the Suits Valuation Act, which funs :-

"Where in suit other than those referred to in the Court Fees Act, 1870, section 7,
paragraphs (v), (vi) and (ix), and paragraph (x), clause (d), court-fees are payable ad
valorem under the Court: Fees Act, 1870, the value as determinable for the computation
of court-fees and the value for purposes of jurisdiction shall be the same."

In accordance with this section if the suit is not one of the classes mentioned in it and
court-fees are payable ad valorem, the value for court-fee and jurisdiction has to be the
same. Section 7 (vi-a) is not one of the provisions mentioned in section 8 and court-fees
have under it to be paid ad valorem, therefore the value for jurisdiction and court-fee of
such a suit are indentical.

Under the circumstance, it is not quite easly for the plaintiff to allege that the value for
jurisdiction of the present suit should be more than the value of the plaintiff's share. In
suit for partition where the plaintiff is out of possession obviously the plaintiff is claiming
a higher relief than in a case where he is in possession ; not only that, the relief in the first
kind of suit actually includes the relief in the second kind of suit. When the plaintiff is out
of possession of joint property the grant to him of separate possession of his partitioned
share amounts really to two reliefs

(1) joint possession of his share, and,

(2) the transformation of that joint possession into separate possession of his partitioned
share,

for (and it is a proposition well supported by authority) a plaintiff out of possession is not
entitled to partition unless he first gets joint possession. If the Legislature assess the
jurisdictional value in case of two reliefs at the value of the plaintiff's share it is evidently
creating an inconsistency to say that the jurisdictional value in the case of one out of
those two reliefs should be the value of the whole property. The difficulty which this
inconsistency will creates may be illustrated by referring to an example Suppose, the
plaintiff who alleges that he is in joint possession of property of which he holds
one-tenths share files a suit for partition fixing the jurisdictional value at the value of the
whole property. The defendant objects that the plaintiff is not in possession and an issue
is farmed, and it is decided that the plaintiff is not in possession: The plaintiff is then
allowed to amend the plaint (because it is only proper that he should be allowed to amend
by including a prayer for possession). Now while the plaintiff adds this relief he will at
the same time have to bring the jurisdictional value to only one-ten of what it originally
was.

Another inconsistency will be created by the acceptance of the plea of the appellant bet to
that inconsistency no reference was made at the hearing and I prefer dealing with it latter
in the judgement at what I regard as a more appropriate place.

Page No. 10 of 19
The argument on behalf of the plaintiff-appellant is this the view of the Legislature that in
a suit for partition when the plaintiff is out of possession the subject-matter is only the
share of the plaintiff is really not correct ; in so far as there is a specific statutory
provision we are bound to obey the Legislature and, therefore, in a case where the
plaintiff is out of possession the jurisdictional value must be according to the share of the
plaintiff but there is no reason why we should accept this wrong basis in a case whose we
are not bound do so, and therefore even if this inconsistency is involved we should in a
case where the plaintiff is in possession accept what on logical reasoning is the value of
the subject-matter of the suit for partition.

This is the way the plaintiff puts it. I would put it a little different, that is, that we should
not create an inconsistency unless we are forced to do so. However, let us consider, apart
from section 7 (vi-a) of the Court Fees Act which after all is only a Provincial
amendment, what should be the jurisdictional value of a suit for partition? The answer
depends upon the view we take as to what is the subject-matter, of such a suit is the
subject-matter of a suit for partition the right of the plaintiff or the property in relation to
which he claims that right? If it be the right of the plaintiff there can be no question that
in a case like the present the jurisdictional value would be only the share of the plaintiff. `
I do not think it is possible to support the proposition having regard to the various
provisions of the Court Fees and the Suits Valuation Acts that the Subject-matter,' of a
suit is the physical property to which the right of the plaintiff relates. When a suit is filed
for joint possession of a share of immovable property nobody has ever contended, nor
cite`' it be reasonably contended that either the value for court-fees or the value of
jurisdiction is to be determined on the basis of the whole property, and not the plaintiff's
share Suits for easements, for benefits, to arise out of land, for leases, for injunctions,
may relate to large areas of immovable property, but there valuations is in accordance
with that value of the right claimed by the plaintiff. No plaintiff is bound to pay court fee
on the entire property to which his right relates. A tenant who is dispossessed by his
landlord can recover the property on paying court-fees on one year's rent and the
jurisdictional value in such a case follows the value for court-fees. Similar is the case of a
landlord suing to eject his tenant, the right in dispute in such a suit being .only the
encumbrance .on the owner's right created by the lease. It is not necessary to multiply
examples, for it is to difficult to contest this proposition, but I may in-this connection
refer to the fact that in jurisprudence ownership, strictly speaking, relates not to any
physical property but to a right. As is stated in Salmond's Jurisprudence "Ownership in its
most comprehensive significance denotes the relation between a person and any right
vested in him. That which a man owns in this sense is in all, cases a right". When a
plaintiff comes to Court he claims certain rights which are in dispute, it is that which is
the subject-matter of the suit. I want to draw attention here pointedly to the fact that it is
the rights of the "plaintiff" that is to c institute the subject-matter. The subject-matter has
no reference to the rights of the defendant or to the issues which may incidentally arise in
the suit. Quite apart from the provisions of the Court Fees and the Suits Valuation Acts it
must be head on general principles the subject-matter of a suit is the right claimed by the
plaintiff in respect of which he prays for relief and it runs through the provisions of these
two Acts that the subject-matter is such right alone.

There two possible arguments in favour of` the view that the whole property is the
subject-matter of the partition suit. The first is that title to the whole of the property may
be determined in such a suit; the second is that the Court may have to deal with the whole
property by partitioning it and in such a case the whole property becomes the
subject-matter.

So far as the first point is concerned, it will be observed that there will be no reason for
treating a suit for joint possession differently from a suit for partition. When a person
sues for joint possession of one-hundreth share, title to the whole of the property may
incidentally have to be determined in the same way as in a suit for partition, but it is not
contended that in a suit for joint possession jurisdictional value should be the value of the
whole of the joint property: Similarly, in cases where some right in relation to corporeal
property is claimed by the plaintiff the questions of title in respect to whole of the
property may have to be decided. In suits for rights of way on land, for rights of fishery,
navigation, mining, rights of lease and mortgage question of title may have to be decided
relating to the whole propery. One would have to run counter to the whole scheme of the

Page No. 11 of 19
two Acts and a volume of case law in order to hold that in such cases the subject -matter
of the suit is the property in relation to which a right is claimed. It will not be out of place
to refer here to section 3 of the Suits Valuation Act. It empowers the Provincial
Government to frame rules for determining the value of "land" or an "interest in land". If
in a suit for the recovery of an interest in land the subject matter was the whole land and
not merely the interest there would be no need to determine the value of the interest.

As regards the contention that the whole property may have to be divided, and if the
whole of the property is dealt with, it becomes the subject-matter of the suit we will have
to consider what is the nature of a partition suit. But let me state what I regard to be the
fundamental point never to be lost sight of, namely, that the valuation of a suit depends
upon the right which the "plaintiff" claims. This value is fixed as soon as a suit is filed,
and is not enhanced or diminished, except in cases where the valuation is originally
notional, and the true value is to be determined only after a finding by the Court.
However, to proceed with the question of the scope of a suit for partition, what are the
matters which the Court is to decide. It appears to me the ordinary rule that the Court is
concerned with the fight of the plaintiff applies to this suit as it applies to other stilts. In a
partition suit the only issue as to title would be does the plaintiff own the share he claims?
The Court may while determining the right of the-plaintiff incidentally determine rights
of other persons, but that will be only to the extent to which it is necessary to do for
determining the title of the plaintiff. If the Court decides the question of title in favour of
the plaintiff it will then proceed to partition the property, but let me point out here that the
partition is really an enforcement of the right which has been found in favour of the
plaintiff and may well have been left to the executing Court. It is just a matter of
procedure that we call the decree declaring the right of plaintiff a preliminary decree; we
may well have called it a final decree and the actual partition may have been regarded as
an execution and in that case there could not have been an argument that because the
Court has to partition the whole property, the whole property is the subject-matter, for the
jurisdictional value cannot increase after decree. As things stand at present, up to the
stage of preliminary decree the subject-matter is only the share of the plaintiff and it is
only when the Court may have to divide the whole property that the subject-matter in
accordance with the argument I am considering increases. Let me state here that the
plaintiff himself can never ask for the separation of shares of the defendants. He has no
right to pray for that, for he can only enforce his own right and that is confined to the
separation of his share. The original scope of the suit is therefore only the separation of
the share of the plaintiff and it is only if the defendants too ask for a separation of their
shares that a question arises as to whether the subject matter has increased and the
jurisdictional value has been affected. The original jurisdictional value has to be the share
of the plaintiff for the defendants may not ask for separation of their shares at all. The
Court may simply determine the share of the plaintiff and separate it. In the view that I
take I am supported by the decision of the Judicial Committee of the Privy Council in Bai
Shevantibai v. Janardhan Raghunath Warick (71 I A 142 at p. 147). That was a partition
suit which had been dismissed on the ground of limitation by the High Court and
certificate for leave to appeal having been applied for a question arose as to whether:

(1) the subject-matter on appeal to the Privy Council was the share of the plaintiff or the
whole of the joint family property ; and

(2) the appeal involved directly or indirectly a claim or question as to title to the whole of
the joint property.

Both questions were answered in the negative as will appear from the following extract
from the judgment

"Their Lordships are satisfied that the appellate Court were correct in holding that the
value of the subject-matter in dispute on appeal to His Majesty in Council must be taken
to be the value of the share of the joint family property in respect of which the appellant
is claiming, and, indeed, this view was not disputed before their Lordship's Board. A
further question however, remains, namely, whether the decree refusing partition on the
ground that the claim is barred by the law of limitation involves directly or indirectly
some claim or question to or "respecting" the joint family property as a whole. Their
Lordships do not find it necessary to decide whether the words of the second clause in

Page No. 12 of 19
section 110 can on their true construction ever refer to any property but that outside the
suit. It is enough for the purposes of the present case to say that their Lordships feel no
doubt that a question as to the title of the plaintiff to the share which she claims in the
joint property does not become a question respecting the whole of the joint family estate
merely because if her title is established it will result in the joint family estate being
partitioned."

I proceed now to consider the situation that arises if some defendant asks for separation
of his share. There is, strictly speaking, no rights at all in a defendant to have his share
partitioned any person who wants some relief from a Court has to file a suit and to pay
court-fee on it. The defendant may be out of possession and he cannot have his share,
separated and possession granted to him just because he happens to be a defendant in the
suit. Even if he be in possession, he wants to get relief for which he would otherwise
have to pay court-fee under Article 17 (v-a), Schedule II. If a defendant wants to have his
share partitioned the ordinary rule should be that he files a suit for it. We may, waiving a
formality, allow him to make such a claim even in a written statement provided he pays
court fee on this claim. In such a case, truly speaking, the written statement is only a
plaint, and proceedings in the two suits, that is one filed by the plaintiff and the other by
the defendant, are deemed to be consolidated, and the answer to the question as to what is
henceforth the jurisdictional value of the suit would depend upon whether we regard the
two suits as one or whether we regard it an ordinary case of consolidation. If it is a simple
consolidation of two suits, i e., there is no effect on jurisdictional value. If we take the
view that the defendant who has prayed for a partition of his share should also be
regarded as plaintiff in the suit then the jurisdictional value would be the total of the
values of the shares of the plaintiff and of those defendants who claim to have their
shares separated. The question as to which of these two views should be adopted is not
necessary for the purpose of this case. I would prefer the view that the jurisdiction value
of the original suit does not change and one of my reasons for taking this view is that
assuming that the other view is also possible, we would prefer the view which does not
create a clear inconsistency. It is to be kept in mind that even in a suit where the plaintiff
is out of possession the defendants may claim to have their shares separated, and if we
are to be consistent then even in such a suit jurisdictional value should increase by the
fact that defendants have claimed separation of shares, but we are debarred from doing so
on account of section 8 of the Suits Valuation Act in a case where the plaintiff is out of
possession and therefore we' should not do it even in a case where he is in possession. I
would put the matter thus : to avoid all inconsistencies we should take the view that the
initial value of the suit never changes, that the suit substantially comes to an end with the
determination of the plaintiff's right and the proceedings subsequent to such
determination are proceedings for enforcement of that right and therefore proceedings in
execution and the mere fact that in enforcement of the right of plaintiff we have to take
some action in respect of other shares should riot affect jurisdictional value.

I will now state the inconsistency which I said I will state at an appropriate place. Section
4 of the Suits Valuation Act will clearly stand in the way of the interpretation contended
for by the appellant in a case where rules have been framed by a Provincial Government
under section 3 of the Act. According to section 4 if rules have been framed with respect
to an interest in land the jurisdictional value of the suits which fall under Article 17,
Schedule II, cannot exceed the value of the interest in land to which the suit relates The
suit for partition which the plaintiff is in possession falls under Article 17 (v-a) so far as
East Pakistan is concerned, and under Article 17 (vi) with respect to West Pakistan. The
value of the interest in land to which the suit relates is clearly the value of the shares of
the plaintiff alone, for the suit as it is filed relates only to the interest of the plaintiff and
the question of the inclusion in the jurisdictional value of the value of the interests of the
defendants arises only if and when a claim for partition of shares is made by a defendant.
I do not think it is possible to contend that initially the suit relates to any interest except
that of the plaintiff. Therefore, the initial valuation must always be put at a figure less
than the value of the interest: As there is no provision in section 4 for subsequent
enhancement of the valuation of a suit the valuation must remain as it originally was.

The plaintiff who asks us to create inconsistencies has not even the support of much
authority. In pre-Partition India it was only the Calcutta High Court which took the view
that in a suit for partition the subject-matter was the whole of the joint property and the

Page No. 13 of 19
Patna High Court did follow this view. Learned counsel for the appellant confessed that
the was unable to cite any case from any other High Court which supported him, and the
judgment of the Full Bench reported in P L D 1960 Dacca 565 on which the decision of
the High Court in the present case was based refers to a number of cases where the
various Indian High Courts have taken the contrary view. There is also the Privy Council
judgment to which I have already referred and which I regard as an authority directly in
point for there is no reason for holding that the subject-matter on appeal, in case a suit for
partition is dismissed as time-barred, is different from the subject-matter of the suit.

I would hold that the jurisdictional value could not exceed the share of the plaintiff and
that the appeal should be dismissed, without any costs for the respondents have not
appeared.

HAMOODUR RAHMAN, J.-This appeal, by special leave, is against an order of a


Division Bench of the High Court of East Pakistan directing that the memorandum of
appeal filed in First Appeal No. 96 of 1956, be returned for presentation before the proper
forum.

The said First Appeal arose out of a partition suit which was valued for purposes of
jurisdiction at Rs. 5,350. The plaintiffs, who are also the appellants in this Court, claimed
to have purchased an undivided 12 annas share in the properties sought to be partitioned
from the pro forma defendants in the suit on the 1st of June 1953. According to them;
their vendors jointly owned and possessed the said lands along with their other co-sharers
and since their purchase they had also been jointly owning and possessing the same.

The reliefs that they claimed in the suit were as follows :-

(1) That the properties in the Schedule below be partitioned and a specified Saham for 12
annas shares of the plaintiffs be made and they do get Khas possession therein.

(2) That a Commissioner be appointed by the Court and the works of partition be done by
him.

(3) That plaintiffs do get all other relief to which they may be entitled in law and equity.

The High Court of East Pakistan relying on another decision of a Division Bench of the
same Court in the case of Patak Chandra Haldar and another v. Sademan Howladar and
others (P L R 6 Dacca 628), took the view that in a suit for partition the value of the
plaintiff's share determines the jurisdiction and as such in the case under consideration,
since the value of the plaintiff's share was below Rs. 5,000, the proper forum for the
appeal was the Court of the District Judge and directed the return of the memorandum of
appeal.

The plaintiffs then applied to the High Court under clause (c) of Article 159 of the late
Constitution read with section 109 (c) of the Code of Civil Procedure, for a certificate
that the case was a fit one for appeal to this Court, on the ground that it involved a
substantial question of law relating to the valuation of partition suits for the purposes of
jurisdiction. The High Court again refused to grant the certificate, as in its view the
question of law involved had in the meantime been dealt with by a Full Bench consisting
of five Judges of the same High Court in the case of Khayertullah Mondal and others v.
Kamalakanta Saha and others (12 D L R 326 ; P L D 1960 Dacca 565).

Special leave was, however, granted to the appellants, as it was considered that the point
requires an authoritative decision by this Court. The point of law, as formulated in the
order granting leave, is as follows :--

"Whether in a suit for partition of joint property by a person, claiming to be in joint


possession, the valuation for purposes of jurisdiction is determined by the value of the
share of the plaintiff in the property or the value of the whole property."

The contention put forward on behalf of the appellants is that the view taken by the High
Court of East Pakistan both in the case of Patak Chandra Haladar and others and in the

Page No. 14 of 19
case of Khayertullah Mondal and others is erroneous and is based on a mis-appreciation
of the true nature and scope of a partition suit. It is also complained that it has had the
effect of disturbing a long established practice which had been prevailing in this part of
the country since 1924.

It appears that the Calcutta and the Patna High Courts have consistently since the
decision in the case of Rajani Kanta Pal v. Raja Bala Dasi (I L R 52 Cal. 125) recognised
the view as firmly established that in a case for partition the valuation of the entire
property sought to be partitioned determines the forum of the trial as also of the appeal.
This practice was also followed in the High Court of East Pakistan until the decision in
the case of Patak Chandra Haladar, when the said High Court took the view that the
Calcutta practice with regard to suits for partition, where the plaintiff was excluded from
possession could not be treated as the correct practice after the Introduction of paragraph
(vi-a) in section 7 and Entry No. (v-a) in Article 17 of Schedule II of the Court Fees Act,
1870, by the Court Fees (Bengal Amendment) Act, 1935. In the said case the plaintiff,
who was out of possession, claimed partition and paid ad valorem court-fee on the market
value of the share but valued the suit as well as the appeal preferred against the decree
passed in the suit at a higher figure for purposes of jurisdiction. R was not necessary in
the said case for the High Court to deal with the question of valuation for purposes of
jurisdiction in respect of suits for partition where the plaintiff claimed to be in joint
possession but the High Court purported to lay down the same rule for determining the
valuation for purposes of jurisdiction in such cases as well. As this was subsequently
considered to be in the nature of an obiter dictum, a reference was made to the Full Bench
in the case of Khayertullah Mandal for clarification of the latter question.

The Full Bench reconsidered the question and laid down the following rules :-

"(a) That in suits for partition where the plaintiff claims to be in joint possession the value
of his share would determine the forum of the suit, if the suit, as framed, discloses that
the object of the suit is merely to separate the share of the plaintiff from that of the
defendant or defendants.

(b) On the other hand, if the object of the suit is to partition ' the entire estate, the value of
the entire estate will determine the forum of the suit."

The judgments in both of the above-mentioned cases were delivered by me and I have
now had the good fortune of listening to the criticisms of my own previous judgments. I
propose, however, to deal with this question once again, as far as practicable, without
being obsessed by my previous views in the matter.

So far as the jurisdiction of Civil Courts, in this Province, is concerned, it has been
defined in sections 18 to 21 of the Bengal, Agra and Assam Civil Courts Act, 1887 (now
called the East Bengal Civil Courts Act, 1887).

Under section 18 thereof the jurisdiction of a District Judge or Subordinate Judge


extends, subject to the provisions of section 15 of the Code of Civil Procedure, to all
original suits and under section 19 the jurisdiction of a Munsif is limited to suits of which
the value does not exceed Rs. 1,000. The Provincial Government can, however, by
notification empower a Munsif to try suits upto Rs. 2,000 or even upto Rs. 3,500,