1993 PLP 1679 (CLC)

The plaintiff pursuant to such order has preferred the CMA al Serial No.2 and maintains that the order dated‑ 22‑11‑1992 requires to be recalled, having been passed without according due hearing to the plaintiff and being in negation of settled principles of law and the Constitution. As to hearing, while it was the duty of the plaintiff to appear and pursue the suit on 22‑11‑1992 in response to the notice dated 11‑11‑1992, irrespective of the plaintiff's failure so to appear and pursue the matter, I have again. heard Mr. Nawabul Mukhtar Siddiqui, Advocate. Learned counsel has‑contended that the principle settled in the quoted decision of the Federal Shariat Court remains operative notwithstanding an appeal being taken before the Supreme Court of Pakistan and the deeming provision in Article 203‑D(2) of the Constitution of Pakistan. That clause in the Article runs thus:‑ "203‑D(2).‑‑‑If the Court decides that any law or provision of law is repugnant to the Injunctions of Islam, it shall set out in its decision‑‑ (a) the reasons for its holding that opinion; and (b) the extent to which such law or provision is so repugnant; and specify the day on which the decision shall lake effect: Provided that no such decision shall be deemed to take effect before the expiration of the period within which an appeal therefrom may be preferred to the Supreme Court or, where an appeal has been so preferred, before the disposal of such appeal." Learned counsel has augmented his argument by referring to Muhammad Inshaullah v. C.C. Forest (B&E) PLD 1988 SC 155 and Sh. Riazuddin v. Aqeclur Rchman Siddiqui, PLD 1993 SC

76. The effect of first of these Supreme Court decisions is that the Principles of Policy, as incorporated in the Constitution, can, to an extent, be given effect to whereas the second such decision is interpretative of section 13 in the Court Fees Act, about which it has been laid down that the provision for refund of court‑fee therein is not exhaustive of the circumstances in which refund of court‑fee can be ordered and that the Court can in view of Article 2A of the Constitution of Pakistan read with Article 37(d) in the Principles of Policy ibid., in order to "ensure inex ensive and ex editious justice" can exercise inhcrcnt powers to refund court‑fee in the cases where, on the analogy of section 13 in the Court Fees Act, the Court has not had to apply its mind to adjudicate upon a matter on,, merits, coming to dispose it of on compromise between the parties. I am afraid none of these citations can be so construed as to give a blanket power to refund court‑fee in cases where such'\has been paid in accordance with law and the conditions visualized in the referred precedents did not subsist. As to the effect of a Federal Shariat Court decision, declaring any law or provision of law to be repugnant to the Injunctions of Islam, Article 203‑D itself visualises the Court fixing a point of time for its effectiveness, the decision also remaining in abeyance during the period of time an appeal against it may be taken to the Supreme Court and, finally an automatic stay thereof once such an appeal is preferred and lies pending. Thus the deeming provision in Article 203‑D(2) regarding an automatic stay upon preferment of appeal in the Supreme Court of Pakistan would effective be nullified if the principle laid down in the judgment under appeal is adhered to, followed and even implemented, while the relevant appeal remains pending. To my mind the kind of stay contemplated by Article 203‑D(2) of the Constitution is not a mere stay of any declaration or directive in the Federal Shariat Court judgment under appeal but also basically a stay as regards the enunciation of the principle, which, apart from such judgment, is not already being given effect to under some other provisions of law or the Constitution. As a result, it is my considered view that neither the Federal Shariat Court judgment in question nor the two precedents from the Supreme Court jurisdiction can, at this point of time, be considered to have the effect of abolishing or doing away with the Court Fees Act, 1870, under which the office has required the plaintiff to pay up the court‑fee, I cannot even follow my own judgment in Aejaz Haroon v. Inam Durran, PLD 1989 Kar. 304 to extend relief to the plaintiff (in the matter of court‑fee) in view of the binding dicta of a Division Bench of this Court in Sindh High Court Bar Association v. Islamic Republic of Pakistan, PLD 1991 Kar. 178, where, as explained in Sandoz (Pak) Ltd. v. Shahid Iqbal Khan, PLD 1991 Kar. 347, this Court in a similar if not identical matter, had refrained from making a declaration touching the levy and collection of court‑fee, remaining content with (prospectively) overlooking the amendment introduced in Court Fees Act by sections 4 and 6 of the Sindh Finance Act, 1990. , For the foregoing reasons the listed CMA.is dismissed and the office reference is answered accordingly. The plaintiff is, however, granted another two months' time to comply. AA./W‑84/K Order accordingly.