P L D 1952 Lahore 219 (PLP)

S. A. RAHMAN, J.‑This order will dispose of Civil Revision Petition No. 25 of 1951, arising out of a suit brought by Mst. Rafia Begum for recovery of Rs. 6,990‑1‑0 principal and interest on foot of a mortgage from Mehraj Din and others. The suit was resisted, inter alia, on the ground that it was barred by Order II, rule 2, Civil Procedure Code, .as previously the plaintiff had sued for recovery of interest by way of rent alone and obtained a decree but had failed to sue at that time, for the principal amount due on the mortgage. The parties led no evidence but their counsel made statements to the effect that the record of the previous Civil Suit No. 275 of 1948 might be considered as evidence and the point decided. The learned trial Sub‑Judge held that the mortgage‑deed executed by the de fendant was a separate transaction from that by which the mortgagor agreed to become a tenant of the mortgagee in the mortgaged property although the mortgage‑deed and the rent- deed were both executed contemporaneously. He, therefore, came to the conclusion that Order II, rule 2, Civil Procedure Code, did not bar the present suit. Against this order, Mehraj Din defendant has come up in revision to this Court. A preliminary objection was raised by Mr. Muhammad Amin Khan on behalf of the respondent that the revision peti tion was not properly stamped. The Court fee paid on the revision petition amounts to Rs. 4, whereas, according to learned counsel for the respondent, Article 13 of Schedule I to the Court Fees Act governed the case and an ad valorem Court fee should have been paid. On the contrary, Mr. Muhammad Ashraf on behalf of the petitioner contends that Article 13 of Schedule I to the Court Fees Act was ultra vires of the Punjab Legislature and that, in any case, the provisions of Article 1 (d) of Schedule II to the Act applied to the case. Under that Article a Court‑fee of Rs. 2 on a petition to the High Court in the Punjab, would be sufficient. Article 13 of Schedule I to the Act was inserted by a provincial amendment in the Central Act by means of the Court Fees (Punjab Amendment) Act, 1922 (Punjab Act VII of 1922). Mr. Muhammad Ashraf based his argument of ultra vires on the plea that section 80‑A of the Government of India Act, 1915, which was incorporated in the Constitution Act of 1919, required that any Provincial Legislation that is designed to affect a central enactment would have no validity unless previous sanction of the Governor‑General for such amendment had been obtained and there was nothing to show that such previous consent had in fact been obtained while inserting Article 13 in Schedule I to the Act. It would require a research into the record of the Legal Remembrance s Office to find out whether in fact such prior consent of the Governor‑General was obtained before the Provincial Amending Act was passed or not. I have seen the Punjab Gazette Notification by which the Amending Act when passed, was published for general information, This shows that the Act received the assent of the Governor of the Punjab as well as of the Governor‑General; after it was passed by the Legislature. The presumption legitimately arises that the assent of the Governor‑General would not have been forth coming if the requirements of law concerning previous con‑' sent had not been fulfilled. There is a presumption that all official acts were performed regularly and in due course. I would, therefore, be inclined to hold in the absence of evidence to the contrary that the ‑requirements of section 80‑A (2) of the Constitution Act of 1915, as embodied in the Act of 1919, must have been satisfied in the present case. The preliminary objection, however, in my opinion, ought to fail on another ground. The revision petition purports to have been presented under section 115 of the Civil Procedure Code. Article 13 of 'Schedule I to the Court‑Fees Act in terms applies only to an application to the High Court of Judicature at Lahore for the exercise of its jurisdiction under section 44 of the Punjab Courts Act, 1918. Other applications contemplated by this Article do not concern us in this case. It is true that section 44 of the Punjab Courts Act is in terms almost identical with the provisions of section 115 of the Civil Procedure Code. But to my mind it seems that there are two provisions of law, either of which could have been invoked by the petitioner in this case, namely, section 44 of the Punjab Courts Act and section 115 of the Civil Procedure Code. He elected to call to his aid section 115 of the Civil Procedure Code rather than section 44 of the Punjab Courts Act. The two provisions can stand together as they are not repugnant to each other. Conse quently, the petitioner was entitled to take advantage of the one provision or the other as he thought fit. There is no men tion section 44' of the Punjab Courts Act in the present revision petition and, therefore, in terms, Article 13 of Schedule I to the Court‑Fees Act is not attracted to the case. This is a fiscal enactment and must receive a strict construction, as far as possible, in favour of the subject. This is a cardinal principle governing interpretation of fiscal statutes. Article 13 being not in terms applicable the only other provision of the Court Fees Act that could be applied was Article 1 (d) of Sche dule II to the Act. This specifically provides for all applications or petitions to the High Court (except for certain specified petitions with which we are not concerned) to be stampable with a 2‑rupee Court‑fee stamp in the case of the Punjab. It is significant in this connection to note that of her Provincial Legislatures have introduced amendments in Schedule II to the Act, providing for special Court‑fee for petitions under sec tion 115 of the Code of Civil Procedure. This has not ‑ been done in the case of the Punjab. As at present advised, there fore, I am inclined to hold that the case is governed by Article I (d) of Schedule II to the Act and the petition is properly stamped. On merits, I consider that the petition should succeed. It appears to me that the parties' counsel confined their attention to the record of the previous suit and did not advert to the recitals in the plaint in the present case. That plain includes an admission to the effect that out of the total interest the principal mortgage money, some payments had been receiv ed "by way of rent", which were deductable from the total in terest due. This admission, if allowed to stand, would clearly imply that the plaintiff regarded the rent in this case as identical with the interest due on the mortgage money. It is a question to be decided on the circumstances of each case whether a deed of mortgage and a rent‑deed executed simultaneously in respect of mortgaged property by the mortgagor, constitute a single transaction or two different transactions. The learned Sub‑Judge's order makes no reference to this recital in the plaint. The recital amounts at best, however, to an admission and can only have been used against the plaintiff if she had an opportunity to explain the admission. This she was not given any opportunity to do. The plaintiff, I understand, is a. purdahnashin lady and her counsel evidently did not even ad vert to this recital in the plaint at the time of arguments in the lower Court. No statement of the plaintiff or her counsel was recorded by the learned Sub‑Judge concerning this admission. This, in my opinion, amounted to a materiel irregularity in the proceedings in the lower Court. Consequently, the revisionary jurisdiction of this Court is attracted to the case. I cannot accept the contention of Mr. Muhammad Ashraf for the petitioner that as this recital is part of the plaint, it must be acted upon to the detriment of the plaintiff without her being given an opportunity to explain if she possibly can do so. The minds of the parties or their counsel do not appear to have been directed to this aspect of the case at all. I, therefore, set aside the order passed by the learned Sub‑Judge in revision and remand the case to him with the direction that he should now record a statement of the plaintiff and invite her attention to the above‑mentioned recital in the plaint so that she could offer any explanation for it, if so advised. After taking the recital in the plaint and the explanation, if any, offered by the plaintiff and the record of the previous suit into consideration, the point may be decided afresh in accordance with law. Costs will abide the final event. A. H. Order set aside.