P L D 1993 Supreme Court 76 (PLP)

NASIM HASAN SHAH, J.‑The facts, which form the background to this appeal, are explained with completeness and clarity in the order granting leave and are, accordingly, being reproduced below unchanged:‑‑ "This petition for leave to.‑appeal is directed against the order dated '19th January, 1986, whereby a Division Bench of the Lahore High Court, dismissed two refund of court‑fees. applications of the petitioner (now appellant) for The facts so far as relevant are that the petitioner (appellant herein) instituted a suit for recovery of Rs.3,40,000 under Order XXXVII, C.P.C. against the respondents on the basis of cheques. The learned Additional District Judge, Lahore, in whose Court the suit. was pending rejected the plaint on the ground that the suit filed by the petitioner was not competent. The petitioner (appellant herein) challenged the order passed by the learned Additional District Judge in an appeal before the High Court. This appeal was admitted to regular hearing and order under Order XXXVIII, rule 5, C.P.C. Zirecting the respondents to furnish security for the payment of amount claimed by the petitioner (appellant herein) was also passed, which was complied with by the respondents. However, on 14th December, 1985, the petitionees counsel withdrew the appeal on a statement to the effect that the parties had compromised their dispute outside the Court. The appeal was, accordingly, dismissed as withdrawn. It is in these circumstances that the petitioner (appellant herein) made two applications, C.M.5638/C/85, under section 151, C.P.C praying for a certificate authorising him to receive back from the Collector the amount of Rs.50,000 paid by him for affixing court‑fee on the plaint rejected by the trial Court; and C.M.5639/C/85 with a similar prayer in respect of court‑fee paid by him on a memo. of the appeal in the High Court under section 13 of the Court Fees Act, 1870. The learned Judges of the Division Bench took the view that the provisions of section 13 of the Court Fees Act were not attracted in the facts of this case, as neither the plaint having been rejected by the trial Court, had been ordered to be received, nor the suit was remanded in appeal under Order XLI, rule 23,, C.P.C. On the contrary, the petitioner (appellant herein) having taken the benefit of the appeal by securing the order of security, it could not be said that the petitioner (appellant herein) had withdrawn the appeal before exercise of the judicial power. Learned Judges did not follow the view taken in Bhola v. Sardar Muhammad PLD 1976 Lahore 1268 and distinguished the same on the ground that it was passed on principles of policy contained in Article 37(d) of the Constitution. They preferred to follow the Division Bench's judgment of the Sindh High Court reported as Trade Well (Pakistan) v. The Standard Bank Limited PLD 1975 Karachi 178, in which it was held that "the levy of the court‑fee if sanctioned by a' statute cannot be ordered to be refunded unless the law so expressly provided and that the Court has no inherent power to refund the court‑fee as prescribed by law Learned Judges of the Sindh High Court have further observed that inherent jurisdiction can only be invoked in cases where the amount paid as court‑fee was in fact not payable in law and not otherwise like in cases of mistake of the party or Court. In Bhola's case (supra) on the other hand it has been held that the High Court in its inherent jurisdiction can order refund of court‑fee on the withdrawal of the appeal, the proceedings in which had not gone beyond the stage of admission and that section 13 of the Court Fees Act is not exhaustive on the ground for refund of court‑fee, which view fully supports the contention of the petitioner (appellant herein). Learned counsel has also referred us to Nabi Bux Khan Bhurgari v. National Bank of Pakistan PLD 1988 Karachi 24 in which view has been expressed that section 13 of the Court Fees Act can be supplemented by other grounds in the exercise of inherent power subject, however, to the condition that the exercise of power is in the interest of justice only. . There appears to be conflict of opinion between the views of the two Courts as mentioned above and an authoritative pronouncement of this Court is, therefore, necessary to resolve the same. Leave is, accordingly, granted." We have heard Dr. Basit for the appellant. None has appeared to contest and the respondents are, therefore, being proceeded against ex parte. Dr. Basit has submitted that the High Couit in its impugned judgment has erred in following the view taken in Trade Well (Pakistan) v. The Standard Bank Limited PLD 1975 Karachi 178, in preference to the view taken in Bhola v. Sardar Muhammad PLD 1976 Lahore 1268 even though the Sindh High Court had itself modified the earlier view expressed in the case of Trade Well (Pakistan) PLD 1975 Karachi 178 and had veered round to the view of the Lahore High Court in Bhola's case PLD 1976 Lahore 1268 in its subsequent judgment reported as Nabi Bux Khan Bhurgari v. National Bank of Pakistan PLD 1988 Karachi

24. The submission is that in adopting the view it has expressed in this case it has taken a retrogressive step which is against the avowed aim of the State to make justice available to its citizens without placing undue burdens on them. We find force in these submissions. Under Article 2‑A of the Constitution of 1973 (as amended in 1985) the State is obligated to further. the ends of social justice which, inter alia, obligate it to *ensure inexpensive and expeditious justice" (see Article 37(d) of the. Constitution). To require a party to pay court‑fee in a proceeding where the parties have compromised their dispute outside the Court and decided to withdraw the proceedings pending before the Court, thereby not burdening it (the Court) to expend its valuable time in examining the case, in hearing arguments in connection therewith, deliberating over the judgment thereon and then in formally taking time to write it; manifestly defeats the above mandate of the Constitution as it penalises the party for approaching the Court, instead of assisting it to obtain inexpensive and speedy justice. It was incumbent upon the High Court to adopt the interpretation which furthered the objectives of the Constitution rather than negated them. Thus the conclusion reached by through Court cannot be sustained. The result is that this appeal is allowed and it shall issue the necessary certificate authorising the appellant to recover the amount incurred by him on payment of court‑fee on the plaint and memo of appeal. No costs. AA./R‑206/S Appeal allowed.