2007 PLP 36 (CLC)

MAULVI ANWARUL HAQ, J.

On 2-8-2003 the appellants filed a suit against the respondents, we will refer to the contents of this plaint in the latter part of the judgment. The respondents were served in the manner prescribed. The respondent No.1 put in appearance and filed an application for leave to defend the suit. The application was allowed and the same stood converted into a written statement. Issues were framed on 31-3-2004. On 8-6-2004 an application was filed by respondent No.1 under Order VII, rule 11, C.P.C. stating that the appellants are bound to pay court-fee on the amount of the loan. The application was resisted. Vide order, dated 20-7-2004, the learned Judge, Banking Court-II, Multan, directed the appellants to pay court-fee to the extent of Rs.15,000 on or before 30-8-2004. The F.A.O. was admitted to regular hearing on 30-8-2004 and the said order was suspended.

2. Learned counsel for the appellants contends that the plaint has not been properly read by the learned trial Court and the impugned order is against law. Learned counsel for the respondents-Bank supports the impugned order.

3. We have gone through the copies of the available records. Now the appellants are the L.Rs. of one Mian Manzoor Ahmad Qureshi. According to the plaint, the said Manzoor Ahmad had never mortgaged his land or obtained any loan and accordingly mutation No.586 attested on 30-12-1997 was questioned. With these averments, the following prayer was made: "It is, therefore, respectfully prayed that a decree for the cancellation of Mutation No.586, dated 30-12-1997 may kindly be passed in favour of the plaintiffs against defendant. It is further prayed that Mutations Nos.586 and 587, dated 30-12-1997 in favour of A.D.B.P. may kindly be declared illegal and without lawful authority and at the same time NOC for the cancellation of said mutation may kindly be issued in favour of plaintiffs and against defendants." The objection raised by the respondent No.1 in the application was that the court-fee is to be paid on the amount of loan entered in the Jamabandi. The learned trial Court passed the impugned order directing the petitioner to pay Rs.15,000 as court-fee with reference to the case of Mst. Parveen Akhtar v. Azhar Ali and 2 others 2002 CLC 1549.

4. It is true that the plaint does not appear to be happily worded but it is equally true that the entire plaint is to be read along with the prayer clause or the words used therein for the matter of determination of court fee in terms of Order VII, rule 11, C.P.C.; of course, read with the provisions of the Court Fees Act, 1870. To our mind, this is a pure and simple case of declaration that the mortgage had not been made by the deceased predecessor-in-interest of the plaintiffs and the mutation be declared to be illegal and void. Now the learned trial Court has stated that this was a case of cancellation of document within the meaning of section 39 of the Specific Relief Act, 1877. The learned trial Court has apparently acted in oblivion of the fact appearing on the face of the record i.e. the mutation is not a document. It is simply a record of an oral transaction reported to a Patwari and thereafter processed by the Revenue Officer. Thus, by no stretch of imagination, section 39 of the said Act of 1877 is attracted. Now so far as the said judgment of this Court is concerned, it was not a case of mutation and we would leave the matters here. However, in the case of Sewa v. Mst. Santi and others 1992 SCMR 1306 in almost similar circumstances their Lordships held that the case seeking a declaration regarding a mutation is covered by section 7(iv)(v) of the Court Fees Act, 1870 and the orders passed by the Courts below including this Court were set aside and the plaint which was valued at Rs.200 was held to be in order. It is indeed shocking that this judgment finds mention in the impugned order but obviously was not read by the learned trial Court. The F.A.O. is accordingly allowed and the impugned order, dated 20-7-2004 of the learned Judge, Banking Court-II, Multan, is set aside. No orders as to costs. F.B./K-49/L Appeal allowed.