P L D 1973 Supreme Court 206 (PLP)

Date of hearing: 1st March 1973. ANWARUL HAQ, J. The appellants suit for the specific performance of a contract for the lease of a plot of land, with option to purchase, and the recovery of a sure of Rs. 6,20,00) as damages, was dismissed day a learned Single Judge of the High Court of West Pakistan, Karachi Bench, on the 12th of April 1966, on the ground that the suit was not maintainable for the reason that the defendant, who was a resident of India, had become an enemy alien owing to the outbreak of hostilities between India and Pakistan in September 1955. As many as 16 issues were framed by the learned trial Judge, but in view of his decision on the issue of the maintainability of the suit he .did not decide the other issues on the merit of the case. Aggrieved by the judgment and decree of the learned Single Judge, the appellants filed an appeal under clause 10 of the Letters Patent which was accepted by a Division Bench on the 17th of August 1966. The finding of the learned trial Judge on the question of the maintainability of the suit was reversed, and the case wag remanded to him "for a fresh decision on all the issues struck in the case other than issue No. 1, which h As been decided by us in favour of the plaintiffs appellants." It was further directed that the costs shall follow the event. Although in the memorandum of appeal filed under the Letters Patent a prayer had been male for a certificate, under section 13 of the Court Fees Act, for the refund of the court fee paid on the appeal, yet the learned Judge; of the Division Bench did not pass any specific order in this behalf except the general order as to costs as mentioned above. In these circum stances, the appellants flied a separate application for the grant of the necessary certificate. but the same was dismissed by a Division Bench of the High Court on 9‑11‑1966, holding that: the learned trial Judge had not dismissed the appellants' suit merely on the preliminary point of maintainability. The learned Judges observe; that the trial Judge had taken the view that on account of the outbreak of hostilities between the two countries it was open to the Courts in Pakistan to exercise discretion to decline to enforce such contracts against enemy aliens. It is submitted, in support of the appeal, that the High Court has fallen in error in thinking that the appellants' suit was not dismissed by the trial Judge on a preliminary point. In support of this contention, the learned counsel has referred us to the clear finding recorded by the learned trial Judge on issue No. 1, as well as his refusal to deal with the remaining 15 issues on the merits of the case. He further submits that the judgment of the Letters Patent Bench, in appeal against the dismissal of the suit, also confirms the same position by directing that the suit shall be remanded to the trial Judge for decision on merits. Section 13 of the Court Fees Act is in the following terms:‑ "

13. If an appeal or plaint, which has been rejected by the lower Court on any of the grounds mentioned in the Code of Civil Procedure, is ordered to be received, or if a suit is remand ed in appeal, on any of the grounds mentioned in section 351 of the same Code for a second decision by the lower Court, the Appellate Court shall grant to the appellant a certificate, authorising him to receive back from the Collector the full amount of fee paid on the memorandum of appeal: Provided that if, in the case of a remand in appeal, the order of remand shall not cover the whole of the subject‑matter of the suit, the certificate so granted shall not authorize the appellant to receive back more than so much fee as would have been originally payable on the part or parts of such subject matter In respect whereof the suit has been remanded." It is only the second part of the section which is relevant in the present context. The reference to section 351 of the Coda of Civil Procedure in this part of the section is now to be construed as a reference to rule 23 of Order XLI in the Firs Schedule to the Code which runs as under :‑ "

23. Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, or the Court has disposed of the suit otherwise than upon a preliminary point and the: Appellate Court considers re‑trial of the suit or any issues necessary, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried In the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re‑admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be; evidence during the trial after remand." It will be seen, therefore, that the appellants would be entitled to a refund of the court‑fee paid on the Letters Patent Appeal, if it is found that the suit had been disposed of by the; upon a preliminary point, and that the same was remanded in appeal for a second decision by the trial Court on the reversal of its decision on the preliminary point. The question, therefore, is what is the meaning of the words "a preliminary point. In Malayath Veetil Rama Nayar and others v. C. Krishnan Nambudripad and another (A I R 1922 Mad. 505) a Full Bench expressed the view that the meaning of the words "Preliminary point" in rule 23, Order XLI "is an, point the decision of which avoids the necessity for the full hearing of the suit. The points are preliminary to A the final disposal of the case." ' This view was adopted by the Lahore High Court in Khuda Bakhsh v. Ata Mohammad (A I R 1942 Lah. 135). It was observed that "a preliminary point does not necessarily mean a point collateral to the merits of the case but includes any point whether of fact or law, the decision on which renders the decision on other issues arising in the case unnecessary." We find ourselves In agreement with the view taken in the two cases cited at the Bar, namely, that a preliminary point is any point the decision of which avoids the necessity for the full hearing of the suit on merits. The point may be a point of fact or of law but is essentially preliminary to the final disposal of the case. Now, the judgments rendered by the learned trial Judge in this case while dismissing the suit and by the Letters Patent Bench while accepting the appeal and remanding the suit for decision on merits, leave no doubt that the suit had indeed been dismissed on a preliminary point, and the decision on that point had avoided the disposal of the suit on merits. Such being the case, the appellants were entitled, in terms of section 13 of the Court Fees Act, to obtain a certificate from the High Court for the refund of the court‑fee paid by them on the Letters Patent Appeal. It was submitted by Mr. A. A. Fazeel for the respondents that the Letters Patent Bench had directed that the costs shall abide the event and therefore, it was not necessary for the High Court to grant a certificate for the specific purpose of refund of the court‑fee paid on the appeal. The submission cannot be accepted for the reason that the refund of the court‑fee under section 13 of the Court Fees Act is distinct from, and independent of, the award of costs on the final conclusion of the suit. As a result, we would accept this appeal and direct the High Court to issue the requisite certificate under section 13 of the Court Fees Act for the refund of the court‑fee paid on the Letters Patent Appeal. As the appeal has not been contested on behalf of the Collector, we make no order as to costs. K.B.A. Appeal accepted.