2002 PLP 1628 (YLR)

Ijaz Ahmad Chaudhry for Petitioner. The applicant has filed this application for issuance of certificate to refund the court‑fee paid on memo. of appeal.

2. The brief facts of the case are that respondent/Corporation filed a suit for the recovery of Rs.3,37,500 against the applicant and the same was decreed vide judgment and decree, dated 25‑5‑2000. Thereafter, the applicant filed R.F.A. No. 93 of 2001 on 20‑6‑2001 which was admitted to regular hearing on 19‑7‑2001. However, the appeal was dismissed as withdrawn on 4‑6‑2002. Now the applicant has requested for issuance of a certificate to refund the court‑fee paid on memo. of appeal.

3. We have heard the arguments of the learned counsel for the applicant and perused the record.

4. The learned counsel for the applicant has relied upon the case of Sh. Riaz‑ud‑Din v. Aqil‑ur‑Rehman Siddiqui and 4 others PLD 1993 SC 76 to contend that, as the applicant has withdrawn his appeal on the basis of compromise, he was entitled to receive back the court‑fee amount paid on the memo. of appeal upon the principles enunicated therein. He asserted that as this Court was not called upon to decide the appeal on merits and as no time was thus, expended by this Court, he should be refunded the court‑fee in furtherance of social justice and to ensure in expensive dispensation of the same.

5. The facts in the precedent case were that the plaintiff's suit for the recovery of money, upon which, he had paid court‑fee had been rejected as being not maintainable. He preferred an appeal, upon which, he again paid the requisite court‑fee. Later, he withdrew the appeal on the basis of compromise. It was in these peculiar circumstances that he provision of section 13 of the Court Fees Act; 1870 was invoked and the appellant in the precedent case was held entitled to the issuance of the necessary certificate authorising him to recover the amount incurred by him as court‑fee on the plaint as well as the appeal.

6. The circumstances of the instant case are, however, vastly different. The applicant was defendant in a suit for the recovery of money which was filed by the respondent on the basis of a pronote and receipt. The applicant had resisted the suit tooth and nail denying the loan and the execution of pronote and receipt. The learned Trial Court framed issues, put the parties to trial and ultimately decreed the suit against the applicant with costs, against which, the applicant preferred an appeal on 19‑7‑2001.Obviously, he had to affix the court‑fee on the memo. of appeal. While admitting the regular first appeal, an order suspending the operation of the decree was passed subject to the deposit of bank guarantee equal to the decretal amount. No such bank guarantee was furnished. The appeal was adjourned at least on 4 dates of hearing whereafter the applicant applied for the withdrawal of his appeal on the basis of some compromise.

7. The case of the applicant is not covered under section 13 of the Court Fees Act, 1870, as neither his plaint was rejected nor his appeal was remanded under Order 41, rule 23, C.P.C. It is true that section 13 is not exhaustive and that the refund of the court‑fee can be ordered on other similar and cognate grounds. For this purpose, the inherent power of the Court under section 151, C.P.C. may also be available. The decisive factor, however, for exercise of judicial discretion in favour of an applicant shall be his overall conduct during the proceedings. If the conduct of an applicant is wanting in bona fides, as it is in the instant case, he shall not be entitled to this discretionary relief. He denied the loan and the very execution of the pronote and receipt which obliged the learned trial Court to hold s a full‑fledged trial of the suit and finally pass a decree against the applicant upon merits alongwith the cost of .the suit. On appeal, the applicant obtained` an order of suspension subject to furnishing of necessary bank guarantee. He has also not disclosed the terms of the compromise which could indicate whether or not he has paid the cost as decreed by the learned trial Court which mainly consisted of court‑fee paid by the respondent.

8. The proposition that‑the conduct of a party is relevant in a claim for refund of court‑fee came‑up for consideration in the case of Fateh Khan v. Province of Punjab PLJ 1994 Lahore 535 and it was held that on account of his conduct, the applicant can render himself disentitled to the refund of court‑fee.

9. Allowing refund of court‑fee in the instant case would also impinge upon the validity of the decree of the learned trial Court which, as mentioned hereinbefore, was passed against the applicant with cost. It will also amount to placing premium upon the default of the applicant. Indeed, this would not be in furtherance of social justice.

10. Resultantly, there is no merit in this application which is accordingly dismissed. Application dismissed. Q.M.H./M.A.K./S‑347/L