2006 PLP 1410 (YLR)

MAULVI ANWARUL HAQ, J.

On 8-11-1987 the respondent purchased the suit-land. On 21-9-1988, the petitioners filed a suit for possessions by pre-emption on the ground that they are owners of the adjacent land. The respondent was served and she filed a written statement on 19-3-1989. Several objections were raised including the one to the effect that there is no mention of Talb-e-Mowatibat in the plaint. On the same day issues were framed. Evidence of the petitioner was recorded on 28-1-1990. While the case was being adjourned for recording of evidence of the respondent, a decision of the Shariat Appellate Bench of the Honourable Supreme Court of Pakistan in suo motu revision petition was announced. On 30-7-1990, the petitioner filed an application stating that since the suit has been rendered incompetent because of the said judgment he be allowed to withdraw the suit and further prayed for refund of the court-fee. Vide order dated 11-4-1991, the suit was dismissed as withdrawn but the court-fee was not refunded by the learned trial Court on the ground that it has no jurisdiction to do so.

2. Learned counsel for the petitioner contends that the provisions of sections 13, 14 and 15 of Court Fees Act, 1870, are not exhaustive and that the superior judiciary of the Sub-continent has been of the consistent view that the court-fee can be refunded in exercise of inherent powers as well. He refers to the cases Bhola v. Sardar Muhammad PLD 1976 Lahore 1268 and Nabi Bukhsh Khan Bhaurgari v. National Bank of Pakistan PLD 1988 Karachi 24.

3. No one has turned up for the respondent who obviously has no interest as the drawn suit against her stands dismissed as awn which order has not been questioned in this C.R.

4. I have given some thought to the said contentions of the learned counsel. It is a matter of public knowledge that several suits either pending when pronouncement in Said Kamal Shah's case was made or filed thtteafter, had been rendered incompetent under the dictum of the apex Court. No mala fides can possibly be attributed to the petitioner for filing the said suit which was rendered incompetent because of pronouncement of the Honourable Supreme Court made after its institution. The petitioner instead of pressing the matter has opted to withdraw the suit and thereby tolessen the burden of the Court as well. No substantial proceedings otherwise had taken place in the suit. I, therefore, do find that it would be in the interest of justice to grant prayer of the petitioner. Needless to state that the learned trial Court has clearly refused to exercise a jurisdiction otherwise vesting in it while denying the said relief on the ground that it has no authority to do so.

5. C.R. accordingly is allowed and the court-fee paid on the plaint in Civil Suit No.493 of 1996 titled Messrs M.B. Industries (Pvt.) Ltd., Multan v. Mst. Shehnaz Akhtar, is ordered to be refunded. Learned Senior Civil Judge, Multan, shall accordingly issue a refund certificate in the amount of the court-fee paid on the plaint. A copy of this order to be remitted to the learned Senior Civil Judge, Multan, by the office, immediately. H.B.T./M-97/L Revision allowed.