P L D 1961 (W (PLP)

On the re‑hearing of this matter the learned Additional Advocate‑General again urged before me that no Court‑ fee is payable on the appeal presented by the appellant as it is not covered by section 4 of the Court Fees Act. He argued that the jurisdiction exercised by the Karachi Bench in original civil suits is ordinary civil jurisdiction of the High Court and as section 4 especially excludes appeals against such judgments, no. Court‑fee can be levied under it. He further argued that the High Court rules are silent on the question of Court‑fee in this respect and no Court‑fee is leviable on such appeals. The learned Additional Advocate‑General took me through the West Pakistan Establish ment Act and West Pakistan High Court Order, 1955 to shove that the jurisdiction of the Karachi Bench in respect of original civil suits within the District of Karachi is in the nature of ordinary civil jurisdiction of the High Court. On the other hand, Mr. Ghulam Hussain, the learned counsel for the respondents contested this position and strongly urged that it is a District Court jurisdiction exercisable under a special statute and appeals in such cases are not against judgments passed in the ordinary civil jurisdiction of the High Court. In order to appreciate the arguments of the learned counsel for the parties, it would be pertinent to mention here that originally Chapter II of the Court Fees Act applied only to the Chartered High Courts. It had no application whatsoever to the Courts which were deemed as High Courts within the meaning of section 219 of the Government of India Act but were not established by Letters Patent. This is perfectly clear from section 3 of the Court Fees Act as it originally stood prior to 1949, which is in the following terms: "The fees payable for the time being to the clerks and officers (other than the sheriffs and attorneys) of the High Courts established by letters Patent, by virtue of the power conferred by (section 15 of the Indian High Courts Act, 1861, or section 107 of the Government of India Act, 1915), `or section 229 of the Government of India Act, 1935 or chargeable in each of such Courts under No. 11 of the First and Nos. 7, 12, 14, 20 and 21 of the Second Schedule to this Act annexed ;''shall be collected in manner hereinafter appearing." On the language of this section there can be no doubt that the Chief Court of Sind was not one of the Courts contemplated under section

3. Therefore it is quite plain. that section 4 of Chapter II also had no application to cases referred therein in respect of matters coming before the Chief Court of Sind. Mr. Abdul Aziz, therefore, was perfectly justified in pointing out that before the Adaptation Order of 1949 the Court‑fee inthe Chief Court of Sind was recovered under section 6, which is a charging section in‑respect of any Court of justice not covered by sections 3 and 4 of the Court Fees Act. But certain changes were made in section 3 of the Court Fees Act by G. G's Order No. 4 of 1949 and after the adaptation it now reads as under: "The fees payable for time being to the clerks and officers (other than the sheriffs and attorneys) of the (Courts which are High Courts for the. purposes of the Government of India Act, 1935) ; or chargeable in each of such Courts under No. 11 of the First, and Nos.. 7, 12, 14, 20 and 21 of the Second Schedule to this Act annexed ; shall be collected in manner hereinafter appearing." Thus on the language of section 3 after the Adaptation Order in 1949 the Chief Court of Sind was also included in the term High Court mentioned in it and Chapter 11 was applicable to that Court. But the next argument of Mr. Abdul Aziz that after this change no Court‑fee was payable in original suits or appeals against the judgment of a Single Judge in the Chief Court of Sind is without any merit. It will be noticed that section 3 permits the collection of "the fees payable for the time being to the clerks and officers of the Courts which are High Courts for the purposes of the Government of India Act, 1935" and I entertain no doubt that since in the Chief Court of Sind Court‑fees was collected under section 6 of the Court Fees Act, on the language of the section, this method of levying Court‑fee was allowed to continue and the Court‑fee was recoverable on that basis unless found to be excepted is any respect on the terms of sections 3 and 4 of the said enactment. This view is consistent to the interpretation given to sections 3 and 4 in the various High Courts of this sub‑continent. According to the view expressed in these decisions section 3 lays down the mode of collecting the fees and does not prescribe any fees and applies to cases in the High Court under original jurisdiction or in appeals from the orders or decrees passed in the exercise of such jurisdiction, while section 4 deals with documents coming before the High Courts in their Appellate or Revisional Jurisdiction in cases coming from subordinate Courts and in their extraordinary original jurisdiction. The learned Additional Advocate‑General did not bring these important decisions to my notice. In Krishna Mohan Sinha v. Raghunandan Pandey (Air 1925 Pat. 392), Dawson‑Miller, C. J., in this connection observed at page 394 as under :‑ "The reference to the Government of India Act of 1915 was added by an amending statute passed in 1917. The mode of collecting the fees mentioned in section 3 is dealt with in section 25 which provides that they shall be collected by stamps. The fees mentioned in section 3 are such as would be payable in the High Courts under their Ordinary Original Jurisdiction or in appeals from orders or decrees passed in the exercise of such jurisdiction and this is indicated in the margin by the words "levy of fees in the High Courts on their Original Sides," Section 4, on 'the other hand, as the marginal notes indicate, deals with the fees on documents coming before the High Courts i the exercise of their Appellate or Revisional Jurisdiction in case coming from the subordinate Courts, or in their Extra‑ordinary Original Jurisdiction. It provides, in effect, that none of the documents mentioned in the First or Second Schedule of the Act as chargeable with fees shall be filed, exhibited or recorded in, or shall be received or furnished by a High Court exercising the jurisdiction named unless the same are sufficiently stamped as provided in the Schedules. The section is a prohibition against the use of improperly stamped documents and in that sense may be said to make the fees on those documents payable, at least in so far as they are payable in High Courts," Similarly, in C. Abdul Hakim Sahib and another v. Chattanadha lyer and others (AIR 1931 Mad. 457), Venkatasubba Rao, J., observed at page 459 as under "The effect of the two sections may then be shortly stated thus. In certain cases coming before the High Court, the Court‑Fees Act itself prescribes the fees leviable : Section 4, Clause 2 of section

3. In all other cases coming before that Court, the Court‑Fees Act lays down only the mode of collect ing the Court‑fees : Section 3, clause

1. In the case of the Presidency Small Cause Courts also, it merely prescribes the mode of collecting the fee (section 3, clause 3)." In H. Mahomed Ishack Sahib v. Mahomed Moideen and another (45 Mad. 849), Courts Trotter, J., observed "It has always been maintained that the power under which fees are levied on the Original Side of the High Court was derived from the general powers to issue general rules for regulating the practice and procedure of the Courts. It is argued, and I think it is rightly argued, that the power to make regulations for procedure necessarily includes imposition of fees and the collection of them, and the Court can collect the fees only through its proper officers. If that be right, then the fee leviable on an appeal is the fee payable for the time being to the officers of the High Court by virtue of the High Courts Charter Act directly." I am not concerned in this case with the controversy formerly held whether the High Court could levy Court‑fee under the Government of India Act or under the Letters Patent because by adaptation the words "by virtue of the power conferred etc. etc. " has been deleted. Now this section only says that the fees payable for the time being to the clerks and officers of the Courts, which are High Courts etc., shall be collected in the manner hereinafter appearing. Thus, if in the Chief Court of Sind, Court‑fee was payable for the time being in original suits and in appeals against the judgment in such suits that practice and position was preserved' on the language of section 3 of the Court Fees Act. This is quite clear from the terms of this provision of law. But the next question arises whether any change was effected in this respect on the establishment of West Pakistan High Court in 1955. It will be noticed that under the Establishment of West Pakistan Act, 1955, not only the Provinces of Sind, Punjab, N.‑W. F. and Baluchistan were integrated into West Pakistan Province but Karachi, the then Capital of the Federation, also forms part of it with this exception that its administration was left with Governor‑General. Under section 290‑A of the Govern ment of India Act the Governor‑General and the Parliament were empowered to legislate for this area except in respect of matters relating to the High Court. It will be further observed that the Governor‑General was also empowered under section 7 of the said Act to establish the West Pakistan High Court to replace the High Court of Lahore, the Chief Court of Sind and the Judicial Commissioners', Courts in the North West Frontier Province and Baluchistan, but its jurisdiction on 'establishment extended to the territories of Karachi. Provision was also made in section 7 (1) that on establishment this High Court will exercise the same powers and authority as used to be exercised by the Lahore High Court and under subsection (5) all proceedings which immediatey before the appointed day were pending in the High Court of Lahore, the Chief Court of Sind and the Judicial Com missioners' Courts in N.‑W. F. P. and Baluchistan and in any ,l other Court functioning as High Court for any other specified territory, stood transferred to the High Court of West Pakistan and continued as proceedings instituted in the High Court of West Pakistan. As regards laws, section 10 provided that except as otherwise provided in the Act, and subject to any order made by the Governor‑General under section 5 of this Act and to the power of any competent legislature, all laws in force in West Pakistan immediately before the integration of West Pakistan shall continue to apply to the areas and the persons to whom they would have applied if the said enactment had not been passed. Accordingly the Governor‑General by G. G. Order No. 19 of 1955 created the West Pakistan High Court with its seat at Lahore and Benches at Karachi and Peshawar and Circuit Courts at other places within the Province consisting of such Judges as may from time to time be nominated by the Chief Justice. Para. 3 of this Order provided that the High Court shall have such original, appellate and other jurisdiction and such powers and authority in respect of the territories included in the Province of West Pakistan as the High Court of Judicature at Lahore had immediately before the commencement of this Order, in respect of the territories in relation to which it exercised appellate juris diction. The Letters Patent of the Lahore High Court was also applied to West Pakistan High Court subject to such modification and alteration as the provisions of the Establishment of West Pakistan Act, 1955 or any order made thereunder or any other law for the time being in force may warrant. Under para. 5 of the said Order it is laid down that notwithstanding anything in this or in any other law for the time being in force, the Bench of the High Court at Karachi shall have the same original civil jurisdiction for the civil district of Karachi and the same criminal jurisdiction and powers of the Court of Sessions for the Sessions Division of Karachi, as were exercisable, immediately before the commencement of this Order, by the Chief Court of Sind under section 8 of the Sind Courts Act, 1926, subject to the power of the Governor‑General to direct that, as from a specified date such jurisdiction and powers shall cease to be exercisable by that Bench and as from that date that Bench shall cease to exercise that jurisdiction and powers. Under para. 12 of the said Order the High Court Judges Order, 1937 was applied to the West Pakistan High Court but the definition of "Chartered High Court" was omitted. Simultaneously the West Pakistan (Adapta tion of Courts Act) Order, 1955 was also promulgated, which provided in para. 3 that as from the date of commencement of this Order all references in any existing law or in any instrument to any Court existing in any of the territories or areas included in the Province of West Pakistan which is a High Court within the meaning of subsection (1) of section 219 of the Government of India act, 1935, or to the Court of the Judicial Commissioner, Baluchistan, or to the High Courts of Bahawalpur and Khairpur or to the High Court of any other territory or area included in the province of West Pakistan shall be deemed to be references to the High Court of West Pakistan and the references to a Judge of any such Court or to the Judicial Commissioner, Baluchistan, shall be deemed to be references to a Judge of the High Court of West Pakistan. Under paragraph 5 of the said Order the laws mentioned, in this schedule were adapted. Amongst them Sind Courts Act of 1926 also finds place. According to this paragraph sections 3, 4, 7, 9, 10, 11, 12, 14, 16, 19 and 20 were omitted and section 28 of the Sind Courts Act was amended in certain respects which is not relevant for the decision of the matter under consideration. Immediately thereafter in `April 1956 President's Order No. 2‑1956 also known as Karachi Courts Order 2 of 1956 was also promulgated. By this Order the Court of the District Judge and Courts of Subordinate Judges were established in Karachi. Sind Courts Act of 1926 as applicable to Karachi was amended in several respects. Section 8 of the Sind Courts Act of 1926 was amended and for the words "and shall be a Court of Session and shall exercise the powers and perform the duties of a Sessions Judge in the Sessions Division of Karachi" the words "in respect of suits and proceedings wherein the subject‑matter in amount or value exceeds twenty‑five thousand rupees or such sum as the Central Government may by order under the proviso to sub section (2) of section 22 prescribe" were substituted. It will be important to note here that section 14 of the Sind Courts Act as applicable to Karachi was not amended and was preserved in its original shape. As a result of this Order the original jurisdic tion exercised by the Karachi Bench up to the limit of Rs. 25,000 "` was entrusted to the newly created District Court and the Karachi Bench of the West Pakistan High Court now exercises original jurisdiction only in civil suits over the value of Rs. 25,

000. Now the question is what is the nature of original jurisdiction exercised by the Karachi Bench of West Pakistan High Court in civil suits in the civil district of Karachi. Is it the ordinary civil jurisdiction of the High Court or some other jurisdiction? This depends on the interpretation of para. 5 of the Establishment of West Pakistan High Court Order, 1955. It reads as under "Original civil and criminal jurisdicition of the Bench at Karachi.

‑Notwithstanding anything in this Order or in any other law for the time being in force, the Bench of the High Court at Karachi shall have the same original civil jurisdiction for the civil district of Karachi and the same criminal jurisdiction and powers of the Court of Session for the Sessions Division of Karachi, as were exercisable, immediately before the commence ment of this Order, by the Chief Court of Sind under section 8 of the Sind Courts Act, 1926 (Sind Act VII of 1926): Provided that the Governor‑General may by notification in the Official Gazette direct that, as from a specified date such jurisdiction and powers as are mentioned therein shall cease to be exercisable by that Bench and as from that date that Bench shall cease to exercise that jurisdiction and powers." It is therefore perfectly clear that this jurisdiction is of a special nature and is not the ordinary civil jurisdiction of the West Pakistan High Court, otherwise there was no necessity of saying that the Karachi Bench of the High Court of West Pakistan shall have the same original civil jurisdiction for the civil district of Karachi as was exercisable by the Chief Court of Sind under section 8 of the Sind Courts Act, 1926. It will be further observed that original civil jurisdiction in respect of civil suit in Karachi was not conferred on the High Court as a whole as in the case of Calcutta, Madras and Bombay under their Letters Patent, but only to the Bench at Karachi. The nature of this jurisdiction is further clarified under para. 7 of the amend ments in Part A of the Schedule of President's Order No. 2 of 1956. In sub‑clause (4) of para. 7, which replaces the original section 45 of the Sind Courts Act, 1926, it is provided that all decrees and orders in suits and proceedings wherein the subject‑1 matter in amount or value does not exceed twenty‑five thousand rupees, or such sum as the Central Government may by order under the proviso to subsection (2) of section 22 prescribe, passed before the appointed day, by the Bench of the High Court of West Pakistan at Karachi functioning or exercising the powers and performing the duties as the principal Civil Court of ,original juris diction shall be deemed for the purpose of execution to have been passed by the District Court of Karachi. It is quite plain , that the Karachi Bench of West Pakistan High Court is function ing or exercising the powers and performing the duties as the principal Civil Court of original jurisdiction in the civil district of Karachi and not ordinary civil jurisdiction of the High Court understood under the Letters Patent of some High Courts in this sub‑continent. Mr. Khalid Ishaque, the learned. Additional Advocate‑General contended that the powers exercised by the old Chief Court of Sind and now by the Karachi Bench in respect of civil suits exceeding the value of Rs. 25,000 in Karachi_ is nothing else but an ordinary civil jurisdiction of the High Court. He argued that if the High Court exercises original jurisdiction in civil suits, it is ordinary original civil jurisdiction as distinct from its extra ordinary civil jurisdiction. The learned counsel referred me to the Letters Patent of the Calcutta High Court, Bombay High Court and Madras High Court to show that the original civil jurisdiction conferred on those Courts is distinct from their extraordinary civil jurisdiction and such jurisdiction is called as ordinary original civil jurisdiction of those High Courts. He therefore contended that since the Chief Court of Sind and the West Pakistan High Court have exercised or are exercising original civil jurisdiction on the same analogy it should also be treated as ordinary original civil jurisdiction of the High Court. The undisputed position so far as, the Lahore High Court was concerned, is that it never possessed any ordinary original civil jurisdiction and under the Letters Patent of that Court which is applicable to us none is conferred on the West Pakistan High Court. The scheme of the Establishment of West Pakistan Act, 1955, clearly shows that as a special measure Karachi Bench was allowed to continue to perform the duties of the principal civil E Court of original jurisdiction in Karachi, which is a special jurisdiction and by no stretch of argument can be considered as the ordinary original civil jurisdiction of the West Pakistani High Court as is generally known. The history of the establish ment of the High Courts in this sub‑continent shows that there, were only three Courts which were conferred ordinary original civil jurisdiction within certain limits under their Letters Patent. No other High Court established under the High Courts Act of 1861 or under the Government of India Act, 1915 or under the Govern ment of India Act, 1935 was invested with powers of ordinary civil jurisdiction. The Chief Court of Sind was no doubt a High Court within the meaning of section 219 of the Government of India Act, but the jurisdiction which it exercised in the civil district of Karachi was not .that of an ordinary original civil jurisdiction of the High Court but it was only performing the duties of the principal Civil Court of original jurisdiction within the district of Karachi under a special statute viz. section 8 Sind Courts Act, 1926. It will be pertinent to refer here to the definition of "district" in section 2 (4) of the Civil Procedure Code. In this definition a clear distinction is made between the local limits of the jurisdiction of a principal Civil Court of original jurisdiction arid the local limits of the ordinary original civil jurisdiction of the High Court. It reads as under: "District means he local limits of the jurisdiction of a principal Civil Court of original jurisdiction (hereinafter called a "District Court") and includes the local limits of the ordinary original civil jurisdiction of a High Court." This distinction also appears from the definition of "District Judge" in section 3 (17) of the General Clauses Act, which is in the following terms :‑ "District Judge shall mean the Judge of a principal Civil Court of original jurisdiction, but shall not include a High Court in the exercise of its ordinary or extraordinary original civil jurisdiction." It appears to me that the expression "Principal Civil Court of original jurisdiction" is not so much a description of any particular class of Courts, as a designation thereof. But there can be no doubt that this jurisdiction is distinct from the ordinary civil jurisdiction of the High Court. In my opinion it is quite obvious that the original civil jurisdiction possessed by the Chief Court of Sind was nothing more than the district Court juris diction. The learned Additional Advocate‑General has invited my attention to a judgment of Thadani, J. reported in Muhammad Osman Sumro (A I R 1948 Sind. 89). The learned Judge in that case held that the Chief Court of Sind is not a District Court within the meaning of section 2 (4) but further observed in this connection as under: "It is not disputed that this Court is a High Court. But Mr. Khanchand contends that as under S. 8, Sind Courts Act, 1926, the Chief Court of Sind is the Principal Civil Court of original jurisdiction for the civil district of Karachi, it is also‑a district Court within the meaning of S. 2 (4), Civil P. C. But, as I have pointed out before, if this Court is a district Court, when exercising its original civil jurisdiction, by reason of S. 2 (4), Civil P. C., the right of appeal would also be governed by the Code of Civil Procedure from a decision of a Single Judge of this Court. In view of section 14, Sind courts Act, 1926, however, I do not think such an interpretation is permissible." and came to the conclusion that the Chief Court of Sind Courts Act, 1926, however, I do not think such an inter pretation is permissible," and came to the conclusion that the Chief Court of Sind is not a District Court within the meaning of section 2 (4) of the Civil Procedure Code. It may, however, be mentioned that Thandarii, J. is an earlier decision in Elias Dadla Khan v. Mahfooz Shah and another (A I R 1946 Sind 86), conceded the position that "a Judge of the Chief Court of Sind is not a District Judge under section 19 of the Bombay Local Boards Act, 1923, though for the purpose of ordinary civil jurisdiction, the Chief Court of Sind may be called a District Court." These two cases, however, are clearly dis tinguishable. The question involved in these two cases was whether a Judge of the Chief Court of Sind was a District Judge or whether the Chief Court of Sind was a District Court. 1 entirely agree that neither the Chief Court of Sind was a District Court nor could any of its Judges be called as District Judges because under section 219 of the Government of India Act the Chief Court of Sind was a High Court. But the question is what was the nature of the jurisdiction exercised by it in respect of original civil jurisdiction in the civil district of Karachi. I have not the slightest doubt on the language of section 8 of Sind Act, C 1926 and the definition of "District" in section 2 (4) of the Civil Procedure Code, that it was exercising District Court jurisdiction in contradistinction to the ordinary original civil jurisdiction of the High Court. In my opinion the mere fact that the Sind Chief Court later on was included within the definition of High Court under section 219 of the Government of India Act, did not change the nature of this jurisdiction. I am fortified in this view by another circumstance. Formerly in Sind there used to be a Court of the Judicial Commissioner. It was exercising jurisdiction in civil matters within the district of Karachi under section 2 of Bombay Act No. 1 of 1906. It reads as under: "There shall be for the Province a Court of the Judicial Commissioner of Sind (hereinafter called the Court of the Judicial Commissioner) which shall be the highest Court of Appeal in civil and criminal matters in the said Province and which shall be the District Court and Court of session of Karachi." This position continued till 1937 although in the Government of India Act, Judicial Commissioner's Court in Sind was deemed as a High Court. But in spite of this in civil matters it continued as District Court. In 1926 the Sind Courts Act was passed by the Bombay Legislature ; which came into force in .1940. But in this enactment, instead of treating the Chief Court of Sind as District Court, it was designated as the principal Court of original civil jurisdiction. Thus the same position was maintained and it was not enacted that it will have ordinary original civil jurisdic tion within the limits of Karachi and also did not change the nature of the jurisdiction in civil matters. It will be further noticed that the Letters Patent of the Lahore High Court has been applied to the West Pakistan High Court. Under the Letters Patent there is no mention whatsoever of any original civil jurisdiction invested on the Lahore High Court or for the matter of that to the West Pakistan High Court. The West Pakistan High Court therefore under the Letters Patent possessed no ordinary civil jurisdiction. So far as the ordinary civil jurisdiction of the High Court is concerned, if it is given to a High Court it must be given to the whole Court. It cannot be said that although the West Pakistan High Court as a whole does not possess ordinary civil jurisdiction in respect of Karachi District, but all the same it is exercised by one of its Benches, it is its ordinary original civil jurisdiction. In my opinion the fact that the original civil jurisdiction in respect of Karachi is not exercised by the High Court of West Pakistan as a whole furnishes a clear indication that the Karachi Bench of the West Pakistan High Court is not exercising ordinary civil jurisdiction of the High Court but is exercising special orginal civil jurisdiction conferred on it under as special statue. In the matter of G. A. Kuppuswami (A I R 1930 Mad. 79), in fact, the Madras High Court took the view if a High Court does not exercise its ordinary or extraordinary civil jurisdiction conferred by Clauses 11 to 18, Letters Patent, it acts as a District Court. I will not go to such an extent but hold that in such cases it exercises special original civil jurisdiction. Although none of the counsel brought it to my notice, but I am aware that there is a lot of controversy in the Indian High Courts on the question whether the writ jurisdiction conferred on them under Article 226 of the Indian Constitution is an ordinary civil jurisdiction or an extraordinary civil jurisdiction. This point in a different shape came before their Lordships of the Privy Council in Hamid Hasan Nomani v. Banwarilal Roy and others (A I R 1947 P C 90 = P L D 1947 P C 75). Their Lordships in that case were considering the question whether the powers exercised by the Calcutta High Court under sections 45 to 50 of the Specific Relief Act and section 491 of the Cr. P. C., fell within the ordinary civil jurisdiction of the High Court. Their Lordships came to the conclusion that it fell within the ambit of the ordinary civil jurisdiction of the High Court and observed as under: "It cannot be disputed that the issue of such writs is a matter of original jurisdiction. As to its being of a civil nature, it was held as long ago as 1788 in (1788) 2 Term Rep. 484 that information in the nature of quo warranto is in the nature of a civil proceeding so that a new trial may be ordered. That leaves only the adjective "ordinary" and it was contended, on behalf of the respondent, that the issue of a high prerogative writ could not be regarded as falling within the Ordinary Original Civil Jurisdic tion ; that it would be an act of Extraordinary jurisdiction. But the expression `Ordinary Original Civil Jurisdiction' appears to be used in the Letters Patent in distinction to the Extra ordinary Original Civil Jurisdiction conferred by section

13. The marginal note to that section is `Extraordinary Original Civil Jurisdiction' and the section empowers the High Court to remove and to try and determine as a Court of Extraordinary Original Jurisdiction any suit being, or falling within the jurisdiction of any Court, whether within or without the Bengal Division of the Presidency of Fort William subject to its superintendence when the said High Court shall think proper to do so either on the agreement of the parties to that effect, or for purposes of justice. With sections 11 and 13 must be read sections 19 and

20. Section 19 provides that in the exercise of its ordinary original civil jurisdiction the law or equity to be applied shall be the law or equity which would have been applied by the said High Court to such case if those Letters Patent had not issued. By clause 20, the marginal note to which is In the exercise of extra ordinary original civil jurisdiction', it is enacted that with respect to the law or equity and the rule of good conscience to be applied in each case coming before the said High Court of Judicature of Fort William in Bengal in the exercise of the extraordinary original civil jurisdiction, such law or equity and the rule of good conscience shall be the law or equity and the rule of good conscience which would have been applied to such case by any local Court having jurisdiction therein. It is plain that in a matter coming before the Court on a high prero gative writ there could be no local Court having jurisdiction. Any such proceedings clearly do not come within the expression `Extraordinary Original Civil Jurisdiction' which is only used in clauses 13 and

20. In their Lordships' opinion any Original Civil Jurisdiction possessed by the High Court and not in express terms conferred by the Letters Patent or later enact ments falls within the description of Ordinary Original Civil Jurisdiction," But it will be observed that this case arose from a High Court which possessed ordinary civil jurisdiction under its Letters Patent within the local limits and exercised writ jurisdiction in certain matters under the Specific Relief Act within the same limits' and in such circumstances their Lordships held that the power exercised by the Calcutta High Court in respect of such matters is in the nature of ordinary original civil jurisdiction. The question whether the writ jurisdiction exercised by the High Court of Calcutta under Art. 226 of the Indian Constitution was in the nature of ordinary civil jurisdiction again came up for consideration in Chairman, Budge Municipality v. Mongru Mia and others (A I R 1953 Cal. 433), The learned Judges of the Calcutta High Court referred to the Privy Council case and held that the juris diction exercised by the High Court under Art. 2215 is neither revisional as contemplated by the section 115, Civil Procedure Code nor does it appertain to the general power of superintendence conferred by section 107, Government of India Act, now Art.

227. They held it is not original in the case of the Presidency High Court in the limited and technical sense of the ordinary, original, civil jurisdiction of the Letters Patent which carries certain territorial limits, but it is original as distinguished from appellate jurisdiction The Andhra High Court was also faced with a similar situation in Bh. Sailanaravanamurti v. Income‑tax Appellate Tribunal, Madras Bench (A I R 1957 Andh. 123). It was held that it is settled law that the High Court was issuing writs in the nature of mandamus, prohibi tion quo warranto and certiorari in the exercise of its Extraordinary Original jurisdiction as contrasted with appellate jurisdiction. Art. 226 of the Constitution conferred express power on the High Court to issue the writs mentioned therein throughout the terri tories in relation to which it exercises jurisdiction. The territorial limits of the jurisdiction of the Andhra Pradesh High Court extends throughout the State of Andhra Pradesh and, therefore the jurisdiction of the High Court under that Article may be con veniently described as Extraordinary Original Jurisdiction as distinguished from the Ordinary Original Civil Jurisdiction of a High Court. The reasoning that since the proceedings in respect of civil suits of the value of more than Rs. 25,000 originate on the original side of the Karachi Bench of the West Pakistan High Court and therefore the exercise of jurisdiction in such proceedings is in the nature of ordinary civil jurisdiction of High Courts does not fit in with the provisions of the Letters Patent of the Lahore High Court. The Letters Patent do not confer any ordinary civil jurisdiction on the High Court. Just as testamentary and matri monial jurisdiction conferred on it under clauses 24 and 25 of the Letters Patent cannot be treated as ordinary original civil jurisdiction, performing of the duties and functions of the principal Court of original civil jurisdiction cannot also be treated as ordinary civil jurisdiction of the High Court. In my opinion merely because a matter originates in the High Court unless so described in the Letters Patent or any other enactment, it cannot be treated as being dealt with in the exercise of the ordinary original civil jurisdiction of the High Court. In the light of the above discussion I am clearly of the view that no change, has been effected by the establishment of West Pakistan High Court in respect of the civil suits entertained on the original side of the Karachi Bench. It seems to me that the jurisdiction g exercised in such matters is a District Court jurisdiction and since it is exercised by the High Court it may be called as special original civil jurisdiction or extraordinary original civil jurisdiction, but certainly cannot be described as ordinary original civil juris‑i diction of the High Court. Now I will again come back to the main question under consideration : whether Court‑fee is chargeable on the appeal presented by the appellant in this matter. There are two sections which are applicable in this case. Either the case is covered by section 3 of the Court Fees Act or the case is covered by section 4 of the Court Fees Act. I will assume for the sake of argument that this is an appeal against the judgment of a single Judge on the ordinary original civil jurisdiction of the High Court. If that is so, it will not fall under section 4 but will fall within the provisions of section .3 of the Court Fees Act. It may be argued that the marginal note of section 3 shows that it relates to original side matters, but all the same an appeal from the original side is also an original side matter. Therefore much difficulty cannot be faced on that account. Formerly, as already observed, section 3 as it stood was not applicable to the Chief Court of Sind and in all matters Court‑fees were charged under section of the Court fees Act, after the adaptation made under Governor Generals's Order No. 4 of 1949, section 3 permitted the collection of those fees which were leviable for the time being in any High Court and therefore at the time of integration Court‑fees were charged to toe Chief Court of Sind in all matters except those mentioned in clause 2 of section 3 on the basis of section 6 Court fees Act. On the same reasoning this position also continued after the establishment of West Pakistan High Court. This is further clear from the Establishment of West Pakistan Act, 1955, which provides in section 10 (1) that except as otherwise provided in this Act and subject to any‑ order of the Governor‑General under section 5 of this Act and to the powers of any competent legis lature, all laws in force in West Pakistan immediately before 15th October 1955, shall continue to apply to the areas and the persons to whom they would have applied if this Act had not been passed. Admittedly no other law has been passed in this respect and I hold that the Court‑fees on this appeal will be charged under section 3 read with section 6 of the Court Fees Act. Incidentally I may add that it is doubtful whether the appeal in question falls within Clause 10 of the Letters Patent because in civil matters pending in the Chief Court of Sind an appeal was entertained under section 14 of the Sind Courts Act, 1926. This section has not been repealed or omitted or amended under the Karachi Courts Order No. 2 of 1956 and is still in force. If that is so I do not see any reason why an appeal against the N judgment of the single Judge of the Karachi Bench in original civil suits should not be affected by this provision of law. But even if the appeal falls under Clause 10 of the Letters Patent, the position will remain the same and the Court‑fees which were levied in the Chief Court of Sind on appeal would continue to be levied on the appeal from suits on the original side of the High Court as indicated be me earlier. Assuming for the sake of argument that the case does not fall within section 3 of the Court Fees Act, then in my opinion the appellate jurisdiction exercised by the Karachi Bench of the West Pakistan High Court is not from the judgment on the ordinary original civil jurisdiction of the High Court and as such appeals are not exempted under section 4 of the Court Fees Acts, Court‑fee on them will be charged under its provisions. Thus, whatever view may be taken of the matter under consideration, the argument of the learned counsel for the appellant and the learned Additional Advocate‑General that no Court‑fee is payable on it cannot be accepted. On the conclusion arrived at by me, I hold that the Court‑fee will be charged on this appeal in accordance with the provisions of Schedules I and II of the Court Fees Act. In the result the office objection is allowed but as the appellant has not paid up deficit Court‑fee, the appeal will be placed before the admission bench for consideration of the question under section 149, C. P. C. whether any further time should be granted to the appellant for payment of deficit court‑fee. In conclusion I will express my appreciation of the note of Mr. G. Raymond, Additional Registrar (A. S.) dated 11‑3‑1961, prepared at very short notice and direct that it will be placed on record for future guidance. A. H. Office objection upheld.