P L D 1991 Karachi 347 (PLP)

This application has been moved by the plaintiff for refund of amount of court‑fees paid in excess of Rs.15,000, the maximum limit which was provided in the Court Fees Act prior to the amendment as provided by sections 4 and 6 of the Sindh Finance Act, 1990. Learned counsel for the plaintiff has placed reliance on a D.B. decision of this Court in the case of Sindh High Court Bar Association and A another v. Islamic Republic of Pakistan and another P L D 1991 Kar.

178. Learned counsel for the plaintiff has submitted that the Division Bench of this Court in the above‑cited case has held that the said amendment brought through sections 4 and 6 of the Sindh Finance Act, 1990 is repugnant to the injunction of Islam and violative of Articles 2‑A and 37(d) of the Constitution of Islamic Republic of Pakistan (1973). From this the learned counsel has submitted that the plaintiff would, therefore be entitled to refund of the court‑fees stamps paid in excess of maximum limit of Rs.15,000 which was effective prior to the said amendment. He has further submitted that the aforesaid judgment would be operative retrospectively. He has placed reliance on provisions of sections 11 and 12 of the Court Fees Act. Mr. K.M. Nadeem, AA.‑G. has opposed this application. He has submitted that the learned Division Bench in the aforesaid judgment has not granted the relief of declaration to the effect that the said amendment is invalid piece of legislation and thus is not enforceable in law. He has further submitted that by the said judgment the learned Division Bench has only issued a directive prospectively. that the aforesaid judgment shows that the said petition was filed by the petitioner praying for the following reliefs:‑‑ "(a) That this Hon'ble Court be pleased to declare that the Court Fees Act, 1870, being contrary to and repugnant to the Injunctions of Islam as contemplated by 1973 Constitution, is invalid piece and legislation and is not enforceable; (b) That this Hon'ble Court be pleased to declare that the amendment to the Court Fees Act, 1870, through sections 4 and 6 of the Sindh Finance Act (IV of 1990), could not be enacted by respondent No.2, in view of the provisions of 1973 Constitution and as such the same is invalid piece of legislation and it is not enforceable; (c) That this Hon'ble Court be pleased to declare that, in any case, on the original civil side of this Hon'ble Court, court‑fees is not payable under the provisions of Court Fees Act, 1870:" Prior to the above said amendment the plaintiff was required to pay Court Fees Stamp at the rates of 7.5 percentum of the first thousand, 5 percentum of the next 29 thousand and 2k percentum of amount of above Rs.30,000 subject to a maximum of Rs.15,

000. By this amendment brought under sections 4 and 6 of the Sindh Finance Act, 1990 the following amendments were introduced: "

4. In the Court Fees Act, 1870, in its application to the Province of Sindh, in the First Schedule, in Article 1‑‑ (a) in clause (iii) in column 3, for the words "exceeds thirty thousand rupees", the words "exceeding thirty thousand rupees" but does not exceed "six lac rupees" shall be substituted; (b) after clause (iii), amended as aforesaid, the following clause shall be added:‑‑ "(iv) exceeds six lac rupees, seven and a half percentum of the firs thousand, five percentum of the next twenty‑nine thousand rupees, twc and a half percentum of the next five lacs and seventy thousand rupee: and two percentum of the remaining value;" The Court a (Sindh Ame=ndment) Ordinance ,1977, is hereb rcncaled." In the above, judgment‑ as cited ,above the Division Bench of this Court having taken into consideration the arguments of the learned counsel for the parties and amicus curiae have come to the conclusion that the said amendments are repugnant to the injunctions of Islam and also violative of Articles 2‑A and 37(d of the Constitution but the relief sought in the petition has not been granted. 1 will be advantageous to reproduce the concluding paragraphs 18 and 19 of the said judgment:‑‑ "

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 provision 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 diectives to regulate its working and procedure 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 riot enacted: (b) Similar directive be issued to all Courts subordinate to the Sindh High Court and exercising civil jurisdiction. This Constitutional Petition stands disposed of in the above terms with no order as to costs:" The perusal of the above paragraphs will show that it has been observed that it will remain doubtful whether the declaration can be given under Article 199 of the Constitution that a statutory provision is void on the ground that it is repugnant to the Injunctions of Islam till the Hon'ble Supreme Court gives its final verdict on Constitutional provisions relating to Islamization of laws. It has also been observed in the above paragraph 18 that the Court can give appropriate directives to regulate its working and procedures and so also of the Courts subordinate to it. In this context the directions have been given as contained in paragraph 19 of the aforesaid judgment by the learned Division Bench of this Court. These directives appear to be prospective in nature, to regulate the working and procedures of the Court. However, as no declaration has been granted by the learned Division Bench, it appears that the question has been left open till the final decision is given by the Hon'ble Supreme Court as observed therein. I would, therefore, reject this application at this stage. However, it will be open for the plaintiff to move such application in case the final verdict is given by the Hon'ble Supreme Court. M.BA./S‑738/K Application rejected.