1988 PLP 1462 (CLC)

(ii)That section 2(2), C.P.C. included in the definition of decree rejection of plaint by deeming proviso for limited purpose of providing right of appeal and that in fact it is not a decree and, therefore, no ad valorem court‑fee is payable. On the other hand Mr. Abdul Rahim Kazi, learned Additional Advocate‑General has submitted as under:‑ (i)That the Hon'ble Supreme Court has stayed the operation of the judgment of a Division Bench of the erstwhile High Court of Sind and Baluchistan, in which it was held that no court‑fee is payable on intra‑Court appeal. (ii)That if an order of rejecting a plaint under Order VII, Rule 11 is included in the definition of decree, it must follow that ad valorem court‑fee is to be paid on the value of the suit.

3. Mr. Abdul Rauf in support of his above first submission has referred to the case of Haji Razak v. Usman and 9 others reported in PLD 1975 Kar. 944, in which a Division Bench of the erstwhile High Court of Sind and Baluchistan took the view that no court‑fee is payable on an intra‑Court appeal arising out of the exercise of original jurisdiction of the High Court. It will suffice to observe that admittedly the operation of the above judgment has been stayed as earlier view in the case of Firdous Trading Corporation and others v. Japan Cotton and General Trading Co. Ltd. P L D 1961 Kar. 565 was contrary to the above view. Since the operation of the above judgment has been stayed by the Hon'ble Supreme Court, this Court has been recovering court‑fee as per the previous view contained in the above case of Firdous Trading Corporation.

4. Adverting to the second submission of the learned counsel for the parties, it may be advantageous to reproduce subsection (2) of Section 2 of the C.P.C. which reads as follows:‑ "Section 2(2). "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint, the determination of any question within section 144, and an order under rule 60, 98, 99, 101 or 103 of Order XXI but shall not include:‑ (a)any adjudication from which an appeal lies as an appeal froman order, or (b)any order of dismissal for default. Explanation.‑‑ A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication competely disposes of the suit. It may be partly preliminary and partly final." It may be noticed that the above‑quoted subsection (2) off section 2 gives the definition of the term 'decree; as means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It further provides that it shall be deemed to include the rejection of a plaint, determination of any question within section 144 and an order under rule 60, 98, 99, 101 or 103 of Order XXI but excludes any adjudication from which an appeal lies as an appeal from an order or any order of dismissal for default. It may further be noticed that the explanation explains that a decree is preliminary when further proceedings have to be taken before suit can be completely disposed of and that it is final when such adjudication completely disposes of the suit or it may be party preliminary and partly final. Mr. Abdul Rauf in furtherance of his submission has referred to Rule 13 of Order VII which provides that the rejection of plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. It has therefore been submitted by him that since the rejection of the plaint dose not debar a plaintiff from presenting a fresh suit, an order for the rejection of the plaint is not in fact a decree and, therefore, ad valorem court‑fee is not payable. He has also referred to Rules 60, 98, 99, 101 and 103 of Order XXI to reinforce his submission that the orders passed under the above rules cannot be treated at par with a decree. On the other hand Mr. Abdul Rahim Kazi, learned Additional Advocate‑General has referred to Order XLIII, Rule 1 in order to show that no appeal is provided against an order of rejection of plaint as it has been treated as a decree within the ambit of the definition of decree given in subsection (2) of section 2 of the C.P.C. and, therefore, a regular appeal against a decree is competent. Mr. Abdul Rauf has referred to the definition of the word "deemed" given in the Hand Book of Legal Terms and Phrases by Mohammad Ilyas Khan and Aiyer's Manual of Law Terms and Phrases, 7th Edition. He has also referred to the following cases for the purpose of showing the construction placed by the Court on a deeming proviso: ‑ (i)Messrs Industrial Development Bank of Pakistan v. Messrs Yousaf Industries Ltd. and 3 others. PLD 1984 Kar. 345 relevant at 345. (ii)Begum B.H. Syed v. Mst. Afzal Jahan Begum and anotherPLD 1970 SC 29 relevant at 31. (iii)Mehreen Zaibun Nisa and others v. Land Commissioner, Multanand others PLD 1975 SC 397 relevant at page

402. The ratio of the above cases seems to be that a deeming proviso by fiction of law converts a thing into something else, which B it would not have been otherwise, and that while construing such a clause the Court should ascertain the intent and purpose for which it was provided for and should construe it strictly. On the other hand Mr. Abdul Rahim Kazi, learned Additional Advocate‑General has referred to the following cases:‑ (i) The Province of Punjab and others v. Muhammad Yousaf Khan 1981 SCMR 590, in which the Hon'ble Supreme Court while construing section 2(d) of the C.P.C. observed that A decree shall not include any adjudication from which an appeal lies as an appeal from an order. (ii)Mst. Zobeda Khatoon and others v. Sree Sudhir Chandra Das and others P L D 1967 Dacca

279. In the above case it was held that rejection of plaint under Order VII, Rule 11, C.PX comes within the purview of decree as defined in section 2(2). (iii)Ram Lal v. Roshan Lal and another A I R (34) 1947 Lah. 302, in which a learned SIngle Judge of the Lahore High Court held that rejection of plaint under section 22(4) of the Punjab Pre‑emption Act is a decree and not an order as was contended by the learned counsel for appellant. 5.We enquired from Mr. Abdul Rauf, the learned counsel for the appellant, whether the Court Fees Act provides any distinction between a regular decree and an order which has been made a decree by virtue of the deeming proviso in Section 2(2) C . P. C . , his reply was in the negative. In our view, if an order rejecting the plaint under Order VII, Rule 11, C.P.C. is a decree for the purpose of C filing of an appeal, it must follow that it is also a decree for the purpose of the Court Fees Act and, therefore, ad valorem court‑fee is to be paid unless the Court Fees Act is amended. We, therefore, do not see any reason to recall the above order, dated 27‑10‑1987, whereby the appellant was directed to pay ad valorem court‑fee and the office reference was accepted. We may also observe that the appellant is seeking the recalling D of the above order dated 27‑10‑1987 without making out a case for the same as the appellant's above Miscellaneous , Application No.1285/1987, for recalling the above order was dismissed in default on 17‑12‑1987 and thereafter no application was filed for restoration of the above application. These are the reasons in pursuance of a short order of even date. A.A./M‑457/K Order accordingly.