P L D 1964 (W (PLP)

Muhammad Aslam Khan v. Muhammad Hassan P L D 1959 Pesh. 101 ref. S. A. Moulvi for Appellant. Mazhar Imam for Respondent. Date of hearing : 19th March 1964. In this revision the question for consideration is whether the direction of the learned Sub‑Judge First Class, Karachi, by order dated 3rd February 1962, calling upon the petitioner to pay deficit Court‑fee under section 7(iv)(c) of the Court‑Fees Act is in accordance with the law or not.

2. Briefly the facts leading to this revision petition are that the petitioner filed Suit No. 60 of 1961, in the Court below for a declaration that the decree under a compromise in Suit No. 896 of 1961 was obtained under coercion and passed by a Court which had no jurisdiction in the matter and, therefore, not binding on him. A further prayer for permanent injunction was also made. The learned subordinate Court in the above. mentioned order held that the suit filed in this Court was not covered by Article 7. clause (v), Schedule II of the Court Fees Act, but falls under section 7 (iv) (c) of the Court Fees Act. The learned subordinate Court relying on a decision of a Full Bench in Lakhomal Deepchand v. Deepchand Tolaram (A I R 1937 Sind 241) in which it was held that in a suit to set aside a decree or an award were consequential relief is sought by way of an injunction restraining the decree‑holder from enforcing his decree, the fixed fee prescribed by clause (5) of Article 17, Bombay Court Fees Amending Act, is not the only fee payable and it is not open to the plaintiff to value the injunction arbitrarily and pay Court‑fee thereon ; such value can be revised by the Court. It was further held in the above‑mentioned Full Bench decision that a suit for a declaration and an injunction is a suit for consequential relief. In such suit it is not open to the plaintiff to put any arbitrary value upon the injunction sought and pay Court‑fee on such value. Since the decretal amount in Suit No. 896 of 1961 was in the sum of Rs. 22,600, the learned subordinate Court directed the petitioner to pay Court‑fee on that amount under section 7(iv)(c) of the Court Fees Act.

3. Mr. S. A. Moulvi, the learned counsel for the petitioner has referred me to two decisions of the Lahore High Court in Mian Karam Elahi v. Muhammad Bashir (P L D 1949 Lab. 8) and B. Ghulam Qadir v. Bulaqi Mall & Sons (P L D 1949 Lah. 461). In both the decisions the Full Bench of the Lahore High Court held that under section 7(iv)(c) of the Court Fees Act the plaintiff has an absolute discretion to put his own valuation on the relief that he claims and the Court has no jurisdiction to question the valuation however arbitrary it may be. The learned subordinate Court has also referred to a decision of this High Court in Muhammad Aslam Khan v. Muhammad Hassan (P L D 1959 Posh. 101). In that case also a suit was filed for setting aside a decree alleged to have been obtained by fraud. It was held by a Division Bench of this Court that the averments in the plaint, should be taken as a whole to determine whether suit is with or without consequential relief, though relief is couched in simple declaratory form. It was further held that suit for declaration that decree was obtained by fraud involved a consequential relief namely of setting aside of decree and falls within the purview of section 7(iv)(c). It was further held in the above‑mentioned decision that in such cases the value of suit for purposes of Court‑fee and jurisdiction under sections 8 and 9 and suit valua tion must be the same and the value stated by the plaintiff for purposes of jurisdiction should be taken to be as value for purposes of Court‑fee.

4. In the present case the petitioner in the suit filed by him neither has put any valuation for purposes of Court‑fee nor for purposes of jurisdiction under section 7(iv)(c). On the other band he has valued the suit separately for purposes of Court‑fee treating the suit as falling under Article 17, clause (v) of Schedule II and for purposes of permanent injunction under section 7(iv) (d) of the Court Fees Act and has paid fixed Court fee separately on that basis. It is quite correct that on the view taken in the above‑mentioned Lahore Full Bench case the plaintiff should be allowed to fix valuation for purposes of Court‑fee and jurisdiction under section 7(iv)(c). But since in this region uptil now the Full Bench decision of the Sind Court reported in Lakhomal Deepchand v. Deepchand Tolaram is followed, I am not inclined to review the case law on the subject and disturb the view hitherto followed by this Court. According to the Sind Full Bench Decision the valuation for purposes of Court‑fee under section 7(iv)(c) in a suit for setting aside a decree should be the amount involved in the impugned decree. I would, therefore, uphold the view of the learned subordinate Court In calling upon the petitioner to pay deficit Court‑fee on that basis. The petitioner is allowed to pay the deficit Court‑fee within one month.

5. In the result the petition is dismissed with costs. K. B. A. Petition dismissed.