P L D 1972 Lahore 743 (PLP)

1. W. P. No. 495 of 1963 entitled Syed Manzoor Hussain Ghazi v. Syed Ejaz Hussain Shah S. C. and six others. 27‑5‑63 3‑7‑68 1‑11‑68 Syed Manzoor Hussain Ghazi writ petitioner.

2. W. P. No. 525 of 1961 entitled Muhammad Islam and another v. Shafiq etc. 29‑5‑61 21‑10‑63 31‑10‑68 Farid Ahmad etc. writ petitioner

3. W. P. No. 612/R of 1964 entitled as Ralla (represented by his legal representatives) v. Chief Settlement Commissioner and others. 9‑4‑64 25‑3‑69 10‑5‑69 Bashir Ahmad one of the respondents in the main W. Petition.

2. On the dates the writ petitions were filed, the court‑fee payable thereon was Rs. 5 under rule 10, Chapter 4‑J, High Court Rules and Orders, Volume V and the court‑fee payable on Letters Patent Appeals therefrom (In practice) was also the same. I have here used the words "in practice", because it has not been shown to me as to under which provision of law such a court‑fee was being paid. On the basis of Balli Rai and others v. Mahabir Rai (I LR 21 Al1. 178) such appeals (without expressing any considered opinion) might prima facie be held to fall under Article 11 of Schedule II of the Court Fees Act which, as amended by the Court‑fees (Punjab Amendment) Act (XII of 1922), were required to be stamped with court‑fee of Rs.

4. Anyhow since no authority for fixing court‑fee of Rs. 5 was referred to me, therefore, I have for the present thought it safe to keep the point open and suffice it to state that such a court‑fee was being paid "in practice", leaving the matter to be thrashed out at some further occasion in some more appropriate case. However, by an amend ment in the form of rule 10‑A, which was brought into being by Correction Slip No. 175, dated 13‑4‑1966, and was to be effective from 16‑5‑1966, the court‑fee on Rehabilitation Writ Petitions and Letters Patent Appeals therein, was raised to Rs. 100 and Rs. 200 respectively. Learned counsel who filed the Letters Patent Appeals in the instant cases fixed court‑fee of Rs.

5. The office took an objection and demanded that the appellants should pay the new court‑fee which was in force at the time of the institution of the appeals. The counsel for the appellants disagreed and took the stand that the court‑fee on appeals should be the same which was for the main writ petitions when they were initially filed or in the alternative such amount which was payable for appeals at the time of the institution of the writ petitions i.e.. Rs. 5 in each case. On account of the difference between the office and the learned counsel for the appellants, the cases have thus been referred to me as a Taxing Judge under section 5 of the Court Fees Act. This judgment/order will dispose of the aforesaid three references.

3. I have heard the learned counsel for the appellants and also Mr. M. B. Zaman, learned Advocate‑General, assisted by Mr. Maqbool Ahmad II, whom I asked to appear as amicus curaie in these cases. Learned counsel for the parties have taken me through the relevant case‑law on the subject. The point is not free from difficulty and I have noticed that there is a sharp difference of opinion between various High Courts on it.

6. In the following cases it was held that court‑fee on appeal should be the same which was prevalent for such an appeal at the time of the institution of the suit though the appeal is actually filed much later. See Firm Hazi Sheikh Faizullah v. State of Vindhya Pradesh and others (A I R 1954 Vindh Pra. 5), R. M. Seshadri v. The Province of Madras (A I R 1954 Mad. 543), Bisan Parashram v. Ganpat Sakharam and others (A I R 1955 Nag. 46), Arjuna Govinda v. Amritta Keshiba and others (A I R 1956 Nag. 281), Sawaldas Madhavdas v. Arati Cotton Mills Ltd. (A I R 1955 Bom. 332). In re: Reference No. 16 of 1954 (A I R 1955 Bom. 287), In re: Abdul Ghafoor (A I R 1958 Andh. Pra. 267)-‑it lays down that court‑fee does not become payable as and when a cause of action arises); Amara Eswaramma and others v. Makkam Seethamma (A I R 1955 Andh. Pra. 211).

5. The contrary view is contained in Sham Lal L. Dogar mal. v. Om Praksh L. Sant Ram Aggarwal and others (A I R 1955 Pb. 223), Sukh Lal and others v. Devi Lal and others (A I R 1954 Raj. 170). Chanda Engineers (India) Ltd., Calcutta and others v. Suresh Chand and others (A I R 1954 Vidh Pra. 47), Shamsul Hasan v. State of Uttar Pradesh (A I R 1956 All. 413), In re: Ghosh Baevi (A I R 1944 Mad. 406), Mst. Bhugobutty Kooer and others v. Mst. Kustooree Kooer (15 W R 272), Aradhun Dey and another v. Ghulam Hussain Maloom and others (7 W R 461). Mr. G. L. Fagan and others v. Chunder yin Kant Banerjee and others (7 W R 452) and In re: Sreenath Roy Choudhry (7 W R 462). These cases lay down that court‑fee on any document, namely, suit or appeal has to be paid according to the law when the document is presented and filed in Court and not with reference to the law which was in vogue at the time of the accrual of the relevant cause of action or the accrual of the relevant right, namely, right of appeal or right of suit etc.

6. There is a third set of case‑law which states that where the court‑fee for an appeal or an application for review is made to depend on the value of the plaint in the case, and there is a change in the law of court‑fee subsequent to the institution of the suit and before the appeal or application for review is filed, the value of the plaint for the purpose of determining the court‑fee on such appeal or application must be fixed with reference to the law in force at the time of the institution of the suit and not at the time of the filing of the appeal or application. See Parmeshar Kurmi and another v. Bakhtawar Pande and others (A I R 1933 All. 20), Nandi Ram alias Nandi Lal Agrani v. Jogendra Chandra Dutta and others (A I R 1924 Cal. 881) and Chunnilal and others v. Kishandas Ramdas (A I R 1926 Nag. 71). There is some difference of opinion in this branch of law as well, but as the case in hand is not of that kind, the matter need not detain me any further.

7. The main reason which has prevailed in the case‑law cited in para. 4 above and which was repeated before me by the learned counsel for the appellants is, that right of appeal is a vested right which accrues to a party at the time of the institution of suit and, therefore, it cannot be made more onerous; cumbersome and stringent later on than it was at the initial filing of the suit. Carrying the argument further, it is suggested that if at the time of the institution of a suit, court‑fee payable on an appeal from that suit was less, then the same cannot be increased at the time of the actual institution of the appeal. If, therefore, by the time of the actual filing of the appeal, law has changed which increases court‑fee on appeals, that law is not to be given retrospective effect and is not to effect the right of appeal which had accrued at the time of the institution of the suit. In my respectful opinion, right of appeal is one thing and payment of court‑fee is another. To say that a right of appeal vests at the initial institution of a suit does not mean that the court‑fee for appeals to be filed in future though arising from the same suit cannot undergo a change. The unsoundness of the argument of A the learned counsel for the appellants can be demonstrated from various angles. Firstly, if for example the court‑fee on appeal is decreased, will the appellants be prepared still to pay the old higher court‑fee? Obviously, their answer will be in negative. If the formula suggested cannot be applied in this respect, it should not be applied in the converse case with which we are dealing. Secondly, the theory of vested right should not be extended indiscriminately, and it should be kept within its own sphere and should not be allowed to encroach upon other well‑established principles of law. For example, it is now well-settled that right of suit is a vested right which accrues to a plaintiff from the date of the accrual of a cause of action. It has however, never been held that court‑fee on a suit should be such which was prevalent at the time of the accrual of the cause of action or to put it in other words, at the time of the accrual of the vested right of suit. Ample case‑law is available without a single dissension, that court‑fee payable will be that which is payable at the time of the filing of the suit. If that is correct in respect of suits, then to remain consistent, the same should be the position with regard to appeals also and the date of accrual of right of appeal should have no relevancy just as date of accrual of vested right of suit has no relevancy. Thirdly, there is ample authority for the proposition that if an appeal is filed without a necessary copy and is returned and is again re‑filed then the proper date of presentation is the date when it is re‑filed with proper documentation and the court‑fee payable will be that which was payable on the date of its proper presentation (even if it happens to be more from what it was on the date of the earlier presentation. See Aradhun De y and another v. Ghulam Hussain Maloom and others, In re: Sreenath Roy Choudhry and Mr. G. L. Fagan and others v. Chunder Kant Banerjee and others. Again if a suit is presented before a Court which had no jurisdiction and the plaint is returned and then it is filed in a proper Court subsequently, it has been held that the suitor will have to pay the court‑fee which is payable on the date of the second presentation to the new Court, even though it is higher than what it was on the date of presentation to the earlier Court. See Bimala Prosad Mukerji v. Lal Moni Devi and others (A I R 1926 Cal. 355), Anand Ram Pramhans and others v. Ramgulam Sahu and others (A I R 1923 Pat. 150), Apply the same analogy in the instant case, the court‑fee payable should therefore, be that which is payable on the day of the actual presen tation of appeal and not on any earlier date. Fourthly, court‑fee has been prescribed for writs and Letters Patent Appeals therefrom by means of Rules and Regulations made under Clause 27 of the Letters Patent (Lahore), which reads as follows:‑ "

27. And we do further ordain that it shall be lawful for the High Court of Judicature at Lahore from time to time to make rules and orders for regulating the practice of the Court and for the purpose of adapting as far as possible the provisions of the Code of Civil Procedure, being an Act No. V of 1908, passed by the Governor‑General‑in‑Council, and the provisions of any law which has been or may be made, amending or altering the same, by competent legislative authority for India, to all proceedings in its testamentary, intestate and matrimonial jurisdiction, respectively." The Supreme Court while examining the validity of the rules is question in Ahmad Khan v. The Chief Justice and Judges of the High Court, West Pakistan, through The Registrar, High Court of West Pakistan, Lahore and 2 others (P L D1968 SC 171) observed at pages 183 and 184 as follows:‑ "the imposition of fees on motions made before a Court is a necessary part of the regulatory process applicable to such motions from the time of their commencement to their conclusion. This is so evident that it is unnecessary to labour the matter further in order to bring the imposition of such fees, where no provision is made therefore in the Court Fees Act, within the power possessed by a High Court to regulate its practice. By clause 27 of its Letters Patent, the power of regulating its practice has been conferred upon the Lahore High Court. By Article 101 of the present Constitution a High Court may with the approval of the Governor of the Province make rules regulating the practice and procedure of the Court. The consent of the Governor was taken in respect of the amendment here in question, and on this view, it seems to be sufficiently clear that the amendment here in question, and on this view, it seems to be sufficiently clear that the amendment is intra vires. On behalf of the Bar Association, the argument raised was that the Constitution of 1962 takes away from the High Courts all powers to fix fees in any matter within its original civil jurisdiction pf whatever kind. Reference was made to Article 130 which denies to all Courts the exercise of "any jurisdiction that is not conferred on it by this Constitution or by or under the law". The strength of the argument would appear to lie in the absence of a Provincial list of subjects on which the Province may legislate, within the present Constitution, but it has already been seen that the words of Articles 131 and 132 read with the relevant items in the Third Schedule must be understood as providing power to the Province to fix fees payable in all Courts within the Province, and further, where in matters arising before e.g., a High Court, no such fee has been fixed, there is given by Article 101 and by clause 9 of the Letters patent a power to regulate the practice of the Court, which has for a great many years been interpreted to include the power to fix court‑fees payable in such matters." This will show that the clause with which we are dealing is of a regulatory and procedural kind and it is well known that a suitor has no vested right in any particular procedure. In this way, if at the time of the institution of the Writ Petition court -fee was less a suitor had no vested right that court‑fee in appeal to be filed in future should remain the same as it was on appeals when the writ petition was filed. The dictum of the Supreme Court in the above passage (to excuse repetition) that, "the imposition of fees on motions made before a Court is a necessary part of the regulatory process applicable to such motions from the time of their commencement to their conclu sion", indicates clearly that there is ample jurisdiction to provide one court‑fee at the commencement of a writ proceeding and a different scale at subsequent stages of appeals etc. On this principle the rule in question was held intra vires of the High Court in the above case and thereafter there is no scope to debate its validity in an indirect form in which it is being asserted before me by arguing that if the new scale is to be applied to appeals which have arisen out of the writ petitions, already filed, then the said scale is in excess of the authority of the High Court. Fifthly, in all the cases which have taken a different view, it had not been kept in view as to what is a right of appeal or its scope and up to what extent it goes. I do not want to enter into any lengthy survey of this subject. In my humble opinion, question of court‑fee is quite separate from right of appeal. Right of appeal is confined to getting the decision of the Court below reviewed by a higher Court and it has no reference to the point as to on what payment of court‑fee the appeal was or is to be filed.

8. The upshot of the above discussion is that respectfully following the view contained in the case‑law noted in paragraph 5 above and as supported by the reasons given by me in para. 7 above (some of which with respect, are my original), I hold that the appeals under discussion are liable to be stamped with a court‑fee of Rs. 200 (Rupees Two Hundred only) on each of them. Order accordingly.