2008 PLP 1310 (MLD)

DR. QAMMARUDDIN BOHRA, J.

The plaintiff has filed this suit under Fatal Accident Act, for recovery of Rs.1,20,00,000 as compensation for lost of life of the deceased Farrukh Hameed son of Khalas Khan. Upon institution of the suit the office has raised objections, dated 18-8-2007 that the suit cannot be governed under the Fatal Accident Act as the deceased Farrukh Hameed has died on 20-8-2006 in police encounter, as averred in paragraphs 13 and 31 of the plaint, and, therefore, court-fee of Rs.15000 is required to be paid. I have heard the learned counsel on the objections raised by the office and gone through the record of the case. The learned counsel contended that office objections have no force and the same cannot sustain as in similar cases there are plethora of decisions in favour of plaintiffs in fatal accident cases where deceased had expired due to wrongful firing of police officials. The learned counsel has placed on record certified copy of plaint in suit No.615 of 1998 and contended that facts in that suit are identical to the present suit as in that suit also deceased had died due to wrongful firing by police officials and contended that the above suit was registered and assigned number without court-fee. He also produced copy of an unreported judgment, dated 18-11-1990 passed in suit No.330 of 1980 and argued that in that suit also the deceased died due to wrongful firing of police officials and suit was filed under Fatal Accident Act and was decreed in favour of the plaintiff. Lastly, the learned counsel relied on the case reported as Government of N.-W.F.P v. Saidur Rehman and another (2004 CLC 1682) wherein the suit filed under Fatal Accident Act was decreed in favour of plaintiff and police officials were held responsible for wrongful firing. In light of above decisions, I am of the considered view that the question as to whether the deceased died due to wrongful and negligent firing of the police officials, requires recording of evidence, which of course, cannot be decided at this stage without recording evidence. However, the plain reading of the plaint shows that it is a case of compensation' under the provisions of Fatal Accident Act, however, in the plaint at para. 12 it is clearly mentioned that no court-fee has to be deposited as the suit is under the provisions of Fatal Accident Act, 1855 which is exempted from the court-fee. As regards the question whether the court-fee is payable on plaint in fatal accident cases, I have laid my hands on the case-law reported as Adam Hussain and another v. Muhammad Ayub (1983 CLC 2054) wherein the question regarding Court fee on fatal accident cases had arisen and was discussed in detail. The relevant portion of the judgment is reproduced as under: (5) The plaintiffs have not paid court-fee as they were under the impression that on suit under the Fatal Accidents Act, court-fee of Rs.15 is payable. The objection regarding payment of court-fee has arisen because of certain legislative amendments in the court-fees Act. In the year, 1975 by Sindh Finance Act, 1975 (Act XV of 1975) Article 20 was added in the Court Fees Act, whereby court-fees of Rs.15 was payable on suits filed under Fatal Accidents Act. In the year, 1979 by Sindh Finance Ordinance, 1979 (Ordinance XI of 1979), Article 20 was omitted. Again by Sindh Finance Ordinance, 1981 (Sindh Ord. XII of 1981) amendment was made in Court Fees Act, which provided that no fee shall be charged on plaint or memorandum of appeal for recovery of damages under the Fatal Accidents Act, 1855. The learned counsel for the plaintiffs has contended that the Court Fees Act, being procedural, the law applicable at the time of judgment should be applied. Otherwise the same provision would not have been reintroduced. The learned counsel for the plaintiffs has further pointed out that in view of Razak v. Usman (1), no court-fee is payable. He has further drawn my attention to the recommendation of Islamic Ideology Council to the effect that court-fee should not be charged and finally he submitted that in a proper case the Court has discretion to extend the time under section 149, C.P.C. considering the contentions raised on behalf of the plaintiffs, the nature of the suit and the history of legislation providing for payment of court-fee, in my opinion, it is a fit case where plaintiffs should be allowed to pay the court-fee after realization of the decretal amount. It will also be pertinent to reproduce relevant portion from Sindh Finance Ordinance, 1981 (Sind Ord. XII of 1981) which reads thus:-- (2). In the Court Fees Act, 1870, in its application to the Province of Sindh in the First Schedule, in Article 1, after the note, the following shall be added: "Exemption:

No fee shall be charged on plaint or a memorandum of appeal for recovery of damages under the Fatal Accident Act, 1855." In the above circumstances, the objections of office are overruled and suit is registered. Summons be issued to all the defendants. M.H.A./M-68/K Objection overrule