2008 PLP 546 (MLD)

KHALID ALI Z. QAZI, J.

By this application the plaintiff has sought refund of court fee paid in the suit as the matter has been disposed of at an earlier stage without any substantial progress in the suit. Reliance has been placed on the case of Shaikh Riazuddin v. Aqeelur Rehman and 4 others (PLD 1993 SC 76). Mr. Ahmed Pirzada learned A.A.-G Sindh has opposed the grant of listed application. He has submitted that the suit was primarily contested and notices were issued to the defendants and also restraining the defendant/KBCA from demolishing the construction of the property in question. In support of his above contention, he has relied upon ' the order, dated 12-4-2004 passed by this Court in Suit No. 148 of 2004. I have heard the learned counsel for the parties and perused the case record. The case referred by Mr. Pirzada is different and distinguishable from the case in hand. In that case the notices were directed to be issued to defendants and defendants were further restrained from creating any third party interest in respect of Shop Nos. 1 and 2 (Ground Plus Two) each measuring 10' x 14' approximately, constructed on plot bearing No.496-C and 498-C, Block-2, situated at PECHS, Karachi. Notices were issued and defendant were served and thereafter the parties have settled their dispute out of Court. But in the present case the suit was filed on 17-11-2007 and on 19-11-2007 notices issued to defendants and restraining order was passed. On the very next date i.e. 4-12-2007 plaintiff moved CMA No. 10072 of 2007 for withdrawal of suit with permission to institute a fresh suit against the defendants and CMA No.10073 of 2007 under section 13 of the Court Fee Act with the request that he has withdrawn the case against the defendants un-contested and no efforts on the part of the Court were involved to decide this case, therefore court fee stamp affixed by the plaintiff on his plaint may be returned to him. On 24-12-2007, application for withdrawal of suit (CMA No.10072 of 2007) was allowed even without serving its notice upon the defendants and the suit of the plaintiff was dismissed as withdrawn with permission to file a: fresh suit on the same cause of action, if he so desires and notice was ordered on application for refund of court fee to Advocate General, Sindh. Keeping in view of the facts and circumstances and the, dictum laid down in the case of Sh. Riazuddin (supra), I am of the considered view that the prayer made in the application seems to be justified. Accordingly, this application is allowed and disposed of in the terms that office may issue necessary certificate in favour of the plaintiff for seeking refund of court fee affixed on the plaint of the present suit as contemplated under section 13 of the Court Fees Act. S.A.K./N-51/K Application accepted.