ORDER SHEET

IN THE HIGH COURT OF SINDH CIRCUIT COURT

HYDERABAD.

C.P. No. D — 692 of 2012.

DATE ORDER WITH SIGNATURE OF JUDGE

10.03.2015.

FOR KATCHA PESHI.

Mr. Abdul Hai Khan Pathan, Advocate for the petitioner.

Mr. Sher M.Leghari, State counsel.

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MUHAMMAD ALI MAZHAR, J.- This constitutional petition has been filed to challenge the order dated 22.02.2012 passed by the VII-Additional District Judge, Hyderabad, in Civil Appeal No.89 of 2008, on a miscellaneous application filed by the petitioner under Section 151 C.P.C. for refund of Court fee affixed on the memo of appeal.

The brief facts of the case are that the petitioner/appellant filed a suit No.38 of 2008 in the Court of III-Senior Civil Judge Hyderabad, for declaration, compensation, damages and permanent injunction. However, vide order dated 20.5.2008, the injunction application was dismissed and the plaint was also rejected under Order VII Rule 11 C.P.C. On rejection of plaint, the appellant/petitioner preferred Civil Appeal No.89 of 2008, which was assigned for disposal to VII-Additional District Judge, Hyderabad. The appeal was allowed by the learned Appellate Court vide Judgment dated 5.11.2011, the impugned order dated 28.5.2008 was set-aside and the matter was remanded back to the trial Court with the directions to afford opportunity to both the parties and after recording evidence decide the matter on merit. After remanding the matter back to the learned trial Court, the same appellant moved an application under Section 151 C.P.C. for the refund of Court Fee in view of Section 13 of Court-Fees Act but the application was dismissed against which the appellant has preferred this petition.

The learned counsel for the petitioner referred to Section 13 of the Court-Fees Act which provides that if an appeal or plaint, which has been rejected by the lower Court on any of the grounds mentioned in C.P.C. is ordered to be received, or if a suit is remanded in appeal, on any of the grounds mentioned in Rule 23 of Order XLI C.P.C. for a second decision by the lower Court, the Appellate Court shall grant to the appellant a certificate, authorizing him to receive back from the Collector the full amount of fee paid on the memorandum of appeal. One proviso to this Section is also attached that if in the case of a remand in appeal, the order of remand shall not cover the whole of the subject-matter of the suit, the certificate so granted shall not authorize the appellant to receive back more than so much fee as would have been originally payable on the part or parts of such subject-matter in respect whereof the suit has been remanded.

Learned counsel for the petitioner argued that since the plaint was rejected but on appeal, the matter was remanded back by the Appellate Court with the directions to decide the suit on merits, therefore, keeping in view Section 13 of the Court-Fees Act, the petitioner/appellant is entitled for the refund but the Appellate Court failed to consider the clear provision of law. He has also referred to P.L.D. 1973 S.C. 206 (HOSHANG and others v. Dr. EDDIE P. BHARUCHA and others) in which the apex Court dilated upon Section 13 of Court-Fees Act viz-a-viz Order XLI rule 23 C.P.C. and observed that the trial Court dismissed the suit on the ground that it was not maintainable and being aggrieved by such order the plaintiff had filed appeal but on the question of maintainability of suit the findings were reversed and the case was remanded for fresh decision on other issues. The Honourable Supreme Court held that the appellant was entitled in terms of Section 13 of the Court-Fees Act to obtain a certificate from a High Court for the refund of Court-fee paid on the Letters Patent Appeal and directed the Court to issue requisite certificate for the refund of Court-fee.

Learned State counsel though supported the impugned order but could not be able to controvert the provisions of Section 13 of the Court-Fees Act as well as the law laid down by the Honourable Supreme Court supra.

We have gone through the impugned order and of the firm view that while deciding the application for refund of the Court-fee the learned Appellate Court failed to advert provision of Section 13 as well as the Judgment of the Honourable Supreme Court cited by the counsel for the petitioner/appellant which is though mentioned in the impugned order but learned Appellate Court observed that the law relied upon by the counsel for the appellant/petitioner is distinguishable but nothing has been shown in the impugned order as to why it does not apply to the facts and circumstances of the appellant’s case and how it was distinguishable.

As a result of above discussion the impugned order is set-aside. The learned District Court is directed to issue requisite certificate under Section 13 of the Court-Fees Act for the refund of Court-fee paid by the appellant for Civil Appeal No.89 of 2008.

Petition disposed of in the above terms.

Judge