Court fee late paid | case law on section 148 and 149 CPC pakistan.
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| Court fee late paid | case law on section 148 and 149 CPC pakistan. |
کیس کے فیصلے میں، عدالت نے ٹیکنیکل غلطیوں اور طریقہ کار کی خامیوں کا جائزہ لیا۔ خاص طور پر، عدالت نے یہ تسلیم کیا کہ فریقین کی جانب سے کورٹ فیس کی عدم ادائیگی ایک تکنیکی نقص تھا، لیکن اس کی بنیاد پر کیس کو خارج کرنے کا فیصلہ کیا۔ عدالت نے وضاحت کی کہ ٹیکنیکل غلطیاں کیس کے مواد اور عدالتی انصاف کے اصولوں پر اثرانداز نہیں ہونی چاہئیں، لیکن قانون کی پیروی کی اہمیت بھی ہے۔
**سپریم کورٹ آف پاکستان**
(اپیلیٹ جورسڈکشن)
**موجودہ:**
مسٹر جسٹس یحییٰ آفریدی
مسٹر جسٹس سید مظہر علی اکبر نقوی
مسٹر جسٹس محمد علی مظہر
**سیول پٹیشن نمبر 2351 آف 2019**
( لاہور ہائی کورٹ، ملتان بینچ کی 10.04.2019 کی judgment کے خلاف)
**خواجہ محمد فضل**
…درخواست گزار
**مقابل**
ممتاز منور خان نیازی (مرحوم) بذریعہ قانونی ورثاء اور دیگر
…جواب دہندگان
**درخواست گزار کے وکیل:**
مسٹر محمود اشرف خان، اے ایس سی
چوہدری اختر علی، اے او آر
**جواب دہندگان کے وکیل:**
مسٹر آفتاب عالم یاسر، اے ایس سی
سید رفیق حسین شاہ، اے او آر
**جواب دہندہ نمبر 2:**
غیر حاضر
**تاریخ سماعت:** 17.10.2023
**فیصلہ**
مسٹر جسٹس محمد علی مظہر، ج۔ یہ سیول پٹیشن، لاہور ہائی کورٹ، ملتان بینچ کی 10.04.2019 کی judgment کے خلاف دائر کی گئی ہے، جس میں درخواست گزار کی دائر کردہ writ petition کو مسترد کر دیا گیا تھا۔
**مقدمہ کی تفصیلات:**
درخواست گزار نے 25.07.2007 کو اعلان کے لئے سیول مقدمہ دائر کیا۔ بعد میں، درخواست گزار نے plaint میں ترمیم کی اجازت حاصل کی۔ جواب دہندہ نمبر 1 نے 28.05.2008 کو اپنے جواب داخل کیا اور 05.09.2009 کو، مقدمہ کے خارج ہونے کے لئے درخواست دی کہ court fee ادا نہیں کی گئی۔ سیکھے مقدمہ عدالت نے 27.04.2010 کو حکم دیا کہ درخواست گزار 7500 روپے court fee اگلی سماعت تک ادا کرے، ورنہ plaint خارج تصور ہوگی۔ کیس 13.05.2010 کو مقرر کیا گیا تھا، مگر اس تاریخ کو عدالت نے بغیر درخواست کے درخواست گزار کو آخری موقع دیا کہ court fee ادا کرے۔ جواب دہندہ نمبر 1 نے اس حکم کے خلاف نظرثانی درخواست دی جسے 11.02.2011 کو مسترد کر دیا گیا اور اس فیصلے کو لاہور ہائی کورٹ میں challenged کیا گیا جہاں بھی یہ مسترد کر دی گئی۔
**درخواست گزار کے وکیل کے دلائل:**
انہوں نے کہا کہ لاہور ہائی کورٹ اور نظرثانی عدالت نے مقدمے کی تشریح غلط کی ہے۔ 27.04.2010 کا حکم court fee کی ادائیگی کے لئے 13.05.2010 کی تاریخ مقرر کرتا ہے۔ عدالت کو کوئی درخواست نہ ملنے پر وہ وقت میں توسیع نہیں کر سکتی تھی۔ عدالت نے اپنی طاقت کو صحیح طریقے سے استعمال کیا ہے اور درخواست گزار نے 21.05.2010 کو court fee خرید کر 24.05.2010 کو عدالت میں جمع کر دی تھی۔
**جواب دہندہ نمبر 1 کے وکیل کے دلائل:**
انہوں نے کہا کہ 27.04.2010 کا حکم court fee کی ادائیگی کے لئے تاریخ مقرر کرتا ہے اور اگر ادائیگی نہ کی جائے تو plaint خارج ہو جائے گی۔ عدالت نے خود سے وقت بڑھا دیا جو کہ غیر قانونی تھا۔ درخواست گزار نے کوئی درخواست نہیں دی اور نہ ہی کوئی جواز پیش کیا۔
**فیصلہ:**
سپریم کورٹ نے بتایا کہ 27.04.2010 کا حکم court fee کی ادائیگی کے لئے تاریخ مقرر کرتا ہے اور اگر اس پر عمل درآمد نہ ہو تو plaint خود بخود خارج تصور ہوتی ہے۔ عدالت نے 13.05.2010 کو وقت میں توسیع کی، لیکن اس توسیع کی کوئی ٹھوس بنیاد نہیں تھی۔ عدالت کی یہ توسیع بغیر درخواست کے دی گئی اور اس کی درستگی نہیں تھی۔ سپریم کورٹ نے کہا کہ عدالت نے اپنی طاقت کو صحیح طریقے سے استعمال نہیں کیا اور نظرثانی عدالت نے صحیح فیصلہ کیا۔ اس لئے، اس معاملے میں کوئی غیر قانونی یا غلطی نہیں ملی اور درخواست مسترد کر دی گئی۔
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE YAHYA AFRIDI
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
MR. JUSTICE MUHAMMAD ALI MAZHAR
CIVIL PETITION NO.2351 OF 2019
(Against the Judgment dated 10.04.2019
passed by the Lahore High Court, Multan
Bench in W.P. No.6785 of 2011)
Kh. Muhammad Fazil
....Petitioner
[
VERSUS
Mumtaz Munnawar Khan Niazi (decd.) thr. L.Rs. & another
…Respondents
For the Petitioner:
Mr. Mahmood Ashraf Khan, ASC
Chaudhry Akhtar Ali, AOR
For Respondents:
Mr. Aftab Alam Yasir, ASC
Syed Rifaqat Hussain Shah, AOR
For Respondent No.2:
Not represented
Date of Hearing: 17.10.2023
JUDGMENT
MUHAMMAD ALI MAZHAR, J. This Civil Petition for leave to appeal is
directed against the Judgment dated 10.04.2019 passed by the
Lahore High Court, Multan Bench (“High Court”) in W.P.
No.6785/2011 whereby the Writ Petition filed by the petitioner was
dismissed.
2. The transitory facts of the case are that a Civil Suit for declaration
was filed by the petitioner/plaintiff on 25.07.2007. After receiving
permission, the plaint was subsequently amended. The respondent
No.1/defendant filed his written statement on 28.05.2008, and
thereafter on 05.09.2009 he also filed an application under Order VII,
Rule 11 of the Code of Civil Procedure, 1908 (“CPC”) for rejection of the
plaint due to non-payment of the requisite court fee. The learned Trial
Court vide Order dated 27.04.2010 ordered the petitioner to pay a
court fee of Rs.7500/- by the next date of hearing, failing which the
plaint would be deemed as rejected. Thus the Trial Court disposed of
the said application and fixed the case for 13.05.2010, however on
C.P.No.2351/2019
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that date, without any request, the learned Trial Court granted the
petitioner a last opportunity to deposit the court fee. The respondent
No.1, being aggrieved by the Order dated 13.05.2010, filed a Revision
Petition and the learned Revisional Court, vide judgment dated
11.02.2011, rejected the plaint which was challenged before the
learned High Court by means of W.P. No.6785/11, but the said Writ
Petition was also dismissed on 10.04.2019 by the learned High Court.
3. The learned counsel for the petitioner argued that the impugned
judgments passed by the learned High Court and the learned
Revisional Court both misinterpreted the Order of the learned Trial
Court. He further argued that a perusal of the Order dated 27.04.2010
clearly postulates that for the submission of court fee and framing of
issues, the date was fixed as 13.05.2010. It is not the spirit of the law
that, when the Court has directed the fixation of court fee on the plaint
and to that end a specific date has been mentioned, then the same
Court has no power under Section 148, CPC for enlargement of time. It
was further averred that the Order dated 13.05.2010 depicts that the
learned Trial Court has rightly exercised its power in accordance with
the law as provided in Sections 148 and 149, CPC. He further argued
that due to the ailment of the petitioner he could not contact his
lawyer, however in compliance with the Order dated 13.05.2010
granting the first extension, the petitioner purchased the court fee on
21.05.2010 and submitted the same in the Court on 24.05.2010 and
the Revision petition was filed on 22.05.2010.
4. The learned counsel for the respondent No.1 argued that vide Order
dated 27.04.2010, the learned Trial Court valued the suit for the
purpose of court fee and jurisdiction and asked the petitioner to pay a
Court fee of Rs. 7500/- on the plaint with the rider that, in case of
non-compliance, the plaint would be deemed as rejected. It was
further argued that no application for extension of time or enlargement
of time was filed by the petitioner, rather the learned Trial Court, on
its own motion, extended the time vide Order dated 13.05.2010, which
is an illegal order. He further argued that no justification has been
provided in this Civil Petition by the petitioner for failing to affix the
court fee within the stipulated time. He added that the Order dated
27.04.2010 had attained finality, and even in the Revision Petition no
proper defence was taken regarding any disability which prevented the
petitioner from affixing the court fee within time. It was further avowed
that the petitioner still has the right to file a fresh suit in terms of
Order VII, Rule 13, CPC subject to the period of limitation.
C.P.No.2351/2019
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5. Arguments heard. The crux of the impugned judgment passed by
the learned High Court is that the Order dated 27.04.2010 of the
learned Trial Court allowing time to make the court fee deficiency good
was passed with the rider that, in case of non-payment of court fee by
the next date of hearing, the plaint would be deemed as rejected.
According to the learned High Court, on 13.05.2010, due to nonpayment of court fee in compliance of Order dated 27.04.2010, the lis
was no longer pending before the learned Trial Court, thus it could not
extend the time for depositing the Court fee as it had become functus
officio. It was further held that the petitioner did not make any request
for extension of time for depositing the court fee. The learned High
Court did not find any jurisdictional defect or legal infirmity in the
impugned judgment passed by the learned Revisional Court, hence
dismissed the Writ Petition.
6. Now we turn our attention to the Order dated 27.04.2010 whereby
the learned Trial Court disposed of the application moved under Order
VII, Rule 11, CPC for rejection of plaint on account of the deficiency in
the court fee stamps, with the conditional direction to the
petitioner/plaintiff to pay the court fee of Rs.7500/- by the next date
of hearing, failing which the plaint would be deemed as rejected. The
matter was adjourned to 13.05.2010 for submission of court fee and
settlement of issues. The Order dated 13.05.2010 neither specifies
whether the petitioner complied with the direction to pay the court fee
or not, nor is any reason incorporated which might have been provided
by the petitioner for non-compliance. The said Order does not even
demonstrate whether any request for extension of time for the
payment of Court Fee was made, either orally or in writing, and the
Court Order itself accentuates that no miscellaneous application was
submitted; right to effect was closed but a last opportunity was
granted for depositing the court fee, without providing any time frame.
In tandem, fourteen issues were also settled with a further direction to
submit the list of witnesses within seven days and the case was
adjourned for the evidence of the petitioner/plaintiff.
7. Before moving ahead, it is expedient to lay out the distinctive
features and characteristics of Section 148 as compared to Section
149, CPC. The provision for enlargement of time is assimilated under
Section 148, CPC which articulates that where any period is fixed or
granted by the Court for the doing of any act prescribed or allowed by
the CPC, the Court may, in its discretion from time to time, enlarge
C.P.No.2351/2019
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such period, even though the period originally fixed or granted may
have expired. Whereas Section 149 deals with the power to make up
the deficiency of court fee which elucidates in a translucent stipulation
that where the whole or any part of any fee prescribed for any
document by the law for the time being in force relating to court-fees
has not been paid the Court may, in its discretion, at any stage, allow
the person, by whom such fee is payable, to pay the whole or part, as
the case may be, of such court-fee; and upon such payment the
document, in respect of which such fee is payable, shall have the same
force and effect as if such fee had been paid in the first instance.
8. It is visible from Section 149, CPC that it an exception to the
command delineated under Sections 4 and 6 of the Court Fees Act,
1870 (“Court Fees Act”). The exercise of discretion by the Court at any
stage is, as a general rule, expected to be exercised in favour of the
litigant on presenting plausible reasons which may include bona fide
mistake in the calculation of the court fee; unavailability of the court
fee stamps; or any other good cause or circumstances beyond control,
for allowing time to make up the deficiency of court fee stamps on a
case to case basis, and the said discretion can only be exercised where
the Court is satisfied that sufficient grounds are made out for nonpayment of the court fee in the first instance. The provisions depicted
under Order VII, Rule 11 and Section 149, CPC have to be read
collectively. Without further consideration, the Court cannot dismiss
the suit or appeal without determining the insufficiency of court fee
and then allowing a timespan for making the deficiency good. By the
looks of it, Section 149 reckons the ratification of time for the payment
of court fee in the beginning, while Section 148 is germane to the
enlargement of time for the compliance of any act for which any period
is fixed or granted by the Court as allowed by the CPC, and the Court
in its discretion may enlarge such period from time to time, despite the
fact that the period originally fixed or granted has expired. The
procedure is simply a mechanism and structure with the objective to
facilitate and accelerate and the rules framed in the Code are for the
advancement of justice.
9. In the case of Sardar Muhammad Kazim Ziauddin Durrani and
others v. Sardar Muhammad Asim Fakhuruddin Durrani and others
(2001 SCMR 148), this Court held that the improper valuation of the
subject-matter of the suit does not tantamount to constitute a formal
defect because the valuation of the subject-matter of the suit both for
C.P.No.2351/2019
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the purposes of jurisdiction of the Court and payment of court fee can
be corrected by the Court after recording evidence and if it comes to
the conclusion that deficient court fee has been paid on the plaint then
it can call upon the plaintiffs/petitioners to make the deficiency good
in exercise of its jurisdiction conferred upon it by Section 149, CPC
because the question of payment of court fee is a matter between the
subject and State as it has nothing to do with opponents. While in the
case of Provincial Government thr. Additional Chief Secretary
(Development) Government of Balochistan, Quetta and another v.
Abdullah Jan and others (2009 S C M R 1378), the High Court
knocked down the appellants on technical grounds i.e. deficiency of
Court Fee but this Court was not inclined to defeat the valuable rights
of the appellants as well as the respondents based on technicalities
and held that it will be fair and just that the present case should be
decided on merits for the simple reason that the object of the Act is to
secure revenue for the benefit of State and not to arm the litigant with
the weapon of technicalities to harass his opponent. In the case of
Siddique Khan and 2 others v. Abdul Shakur Khan and another (PLD
1984 SC 289), this Court reiterated the well-accepted rule about the
Courts' attitude towards the collection of court fee as an agent of the
State and held that the Court Fees Act, like the other fiscal statutes, is
to be construed strictly and in favour of the subject and that it was
passed with the object of securing revenue for the benefit of the State
and not to arm a litigant with the weapon of technicality to harass his
opponent. It was further held that the failure to supply proper court
fee in the context of the Court Fees Act and Section 149 and Order VII,
Rule 11(c), CPC can at best be equated with non-prosecution and not
with non-institution or presentation of the matter/document, nor with
the bar of limitation. Accordingly, considerations in that behalf for
exercise of discretion under Sections 148 and 149 and the relevant
provisions of Court Fees Act should be different from those under
Section 5 of the Limitation Act, 1908 which in any case does not apply
to the suits. To apply the latter to the former cannot be justified on
any rule of interpretation.
10. It is reflected from the record that the learned Revisional Court, as
well as the learned High Court, both concurrently held that the Order
granting time for making good the deficiency was a conditional order
and, since the order was not complied with, the plaint was deemed to
have been rejected automatically and thereafter the Trial Court could
not extend the time and had become functus officio. The Latin maxim
C.P.No.2351/2019
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“functus officio” denotes that once the competent authority has
finalized and accomplished the task for which he was appointed or
engaged, his jurisdiction and authority is over and ended or,
alternatively, that the jurisdiction of the competent authority is
culminated once he has finalized and accomplished his task for which
he was engaged. If the Court passes a valid order after providing an
opportunity of hearing, it cannot reopen the case and its authority
comes to an end and such orders cannot be altered save for where
corrections need to be made due to some clerical or arithmetical error.
This doctrine is applicable to both judicial and quasi-judicial
authorities, and, if it is not adhered to, it may result in turmoil for the
litigating parties. If the authorities or the judges would be able to alter,
change or modify orders capriciously and variably then resultantly will
leave no certainty and firmness to any order or decision passed by any
Court or authority. It is imperative for a sound judicial system to
result in finality and certitude to the legal proceedings.
11. According to Black's Law Dictionary, (Tenth Edition, Page 787),
functus officio means "having performed his or her office, or (of an
officer or official body) without further authority or legal competence
because the duties and functions of the original commission have been
fully accomplished." While P. Ramanatha Aiyar's Advanced Law
Lexicon, (Third Edition, Page 1946) defines functus officio as "a term
applied to something which once has had a life and power, but which
has become of no virtue whatsoever. Thus, when an agent has
completed the business with which he was entrusted his agency is
functus officio." Whereas Wharton's Law Lexicon, (Fifteenth Edition,
Page 720) defines it as "a person who has discharged his duty, or
whose office or authority is at an end." In Corpus Juris Secundum,
(Volume 37, Page 1401) it is defined as "Literally ‘having discharged
his duty’. Having fulfilled the function, discharged the office, or
accomplished the purpose, and therefore of no further force or
authority". In the case of Muhammad Wahid and another v. Nasrullah
and another (2016 SCMR 179), this Court had observed that the Trial
Court had passed an ex-parte decree on 13.07.2008 with a direction to
the Appellants to deposit the remaining sale consideration in Court
within 40 days, failing which the suit filed by them shall stand
dismissed. Admittedly, the Appellants had made an application for
extension of time for deposit of balance sale consideration on
14.10.2008 after a lapse of 40 days. Such Application, in the given
circumstances, could not have been granted by the Trial Court in
C.P.No.2351/2019
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exercise of its powers under Section 148, CPC, as on the said date the
Trial Court had become functus officio by virtue of its judgment/decree
dated 31.07.2008. The Court held that jurisdiction with the Trial
Court was available only within the stipulated period of 40 days, and
the moment this period of 40 days was over, it ceased to have
jurisdiction and had become functus officio, in view of the condition
incorporated in the decree. Whereas in the case of Shujat Ali v.
Muhammad Riasat and others (PLD 2006 SC 140), it was held by this
Court that once having passed a conditional decree and the suit
having stood automatically dismissed for non-deposit of pre-emption
money, the Court decreeing the suit had become functus officio. It is
also obvious that the Court could not have extended the time not only
because non-compliance had resulted in the automatic dismissal of
the suit, but also because a very valuable right had thereby accrued to
the vendee, now a decree-holder.
12. No doubt the time allowed for doing a thing can be enlarged by the
Court under Section 148, CPC, in its discretion from time to time, even
though the period originally fixed or granted may have expired, but
this discretion cannot be exercised arbitrarily, capriciously or
whimsically, rather such discretion must be exercised and structured
in a reasonable and judicious manner. What we have noted in the case
in hand is that, on 27.04.2010, time was allowed under Section 149,
CPC by the Trial Court to pay the court fee by 13.05.2010, failing
which the plaint shall be deemed to have been rejected, however on
13.05.2010, although the court fee stood unpaid, the Trial Court
extended the time for payment of court fee without even fixing any
time frame in the extension order, and that too without any oral or
written request showing any plausible or sufficient cause by the
petitioner for not complying with the Order within the stipulated
timeframe. The Trial Court, without considering the sanctity of
previous order in which the non-compliance of the order impinged and
impacted an automatic rejection of the plaint and without enquiring or
questioning the reasons for non-compliance, extended the time in a
slipshod manner on its own motion without realizing the
repercussions and consequences of its earlier Order whereby the
plaint was virtually rejected. In light of the aforesaid, we are of the
view that the Trial Court had passed the Order for enlargement of time
with a perfunctory approach which was unjustified and unwarranted,
hence the learned Revisional Court rightly set aside the Order and the
learned High Court rightly maintained the same in its writ jurisdiction.
C.P.No.2351/2019
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13. One significant feature which cannot be overlooked, and ought to
have been addressed, is that neither the Court should assume or take
on the jurisdiction not vested in it by law, nor the Court should
abdicate or renounce a jurisdiction so vested in it by law. The CPC is a
consolidatory law which is primarily procedural in nature and may be
defined as a branch of law administering the process of litigation. The
Sections and Rules framed in the CPC are aimed at the advancement
of justice as a body of general law. A construction which renders the
statute or any of its sections or components redundant should be
avoided and must be so construed so as to make it effective and
operative. The raison d'etre of incorporating Section 148 in the CPC is
to deal with genuine cases for extension or enlargement of time in
exigency on a case to case basis and despite lapse of time either
granted by the Court or the CPC, the Court has been vested with the
jurisdiction to extend time in suitable cases. Here, by passing a
conditional order, the Trial Court has not only surrendered and
abandoned its jurisdiction of enlargement of time under Section 148,
CPC, but also closed the doors for the plaintiff in the event of noncompliance of the Order. In our view, such conditional orders are
against the spirit of the powers granted to the Court to meet exigencies
and as a result, even in genuine cases with proper explanation and
sufficient
cause of non-compliance
or some force
majeure
circumstances, the party will be non-suited unless the conditional
order of dismissal of suit or rejection of plaint or memo of appeal is
reviewed by the Court itself or is set aside by the higher fora. The
practice and tendency of passing such conditional orders must be
deprecated and if any act is not complied within the time stipulated in
the CPC or time granted by the Court, the most appropriate legal
action or step would be for the Court to take up the matter at the end
of the expiry period and pass an appropriate order for non-compliance
and if the party at default applies for the enlargement of time to
comply with the direction(s) due to some sufficient cause(s) including
force majeure circumstances which prevented compliance within time,
then of course on such request the Court may further extend or
enlarge time for compliance, however in this case not only did the Trial
Court ignore the compliance of its own Order, but it also extended the
time and simultaneously settled the issues in the same order without
ensuring the deficiency in the court fee and without realizing a crucial
aspect that once a conditional order is passed, the Court fastens its
C.P.No.2351/2019
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own hands and gives up the jurisdiction so conferred under Section
148, CPC and virtually becomes functus officio.
14. At this juncture, we would also like to add that under Order VII,
Rule 13, CPC, the rejection of a plaint on any of the grounds
hereinbefore mentioned (i.e. in Order VII) shall not of its own force
preclude the plaintiff from presenting a fresh plaint in respect of the
same cause of action. Meaning thereby that, as the plaint in this case
was rejected due to non-payment of court fee and not for any other
cause such as limitation, a pathway was opened to the
petitioner/plaintiff to invoke the remedy provided under Order VII,
Rule 13, CPC by presenting fresh plaint within the prescribed period of
limitation rather than wasting time or contesting the matter up to this
Court. In the case of Abdul Hamid and another v. Dilawar Hussain
alias Bhalli and others (2007 SCMR 945), this Court observed that
the earlier suit of the appellant was decreed subject to the payment of
court fee, which shortcoming can only entail rejection of the suit and
as mentioned above, suit on the same cause of action was not barred.
It was further held that all the Courts below have committed material
irregularity by rejecting the plaint of the appellants without adverting
to Order VII, Rule 13, CPC. It is an admitted fact that Order VII, Rule
1, CPC is procedural in nature. It is a settled law that a statute must
be read as an organic whole, as laid down by this Court in various
pronouncements. While referring to the dicta laid down in PLD 1993
SC 473 and PLD 1993 Lah. 183, the Court further held that the
provisions of Order VII, Rule 11 are procedural provisions, and,
secondly, that on the principle that the first and the best source from
which to ascertain the meaning of any statute is the statute itself, the
CPC must be read as a whole, that is to say, those provisions must not
be read in isolation, and if an intrinsic aid is afforded in their
interpretation by other provisions of the CPC, that aid must be made
use of. In the case of Muhammad Ali and others v. Province of Punjab
and others (2009 SCMR 1079), again this Court held that Order VII,
Rule 13, CPC contemplates that rejection of a plaint shall not of its
own force preclude the plaintiff from presenting a fresh plaint.
Nevertheless the underlined words are important and clearly
indicate that other provisions relating to avoiding multiplicity of
litigation and attributing finality to adjudications could not be
ignored. For instance if a plaint under Order VII, Rule 11, CPC is
rejected on the ground of the relief being undervalued or failure to
C.P.No.2351/2019
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affix proper court fee stamps, a fresh plaint could always be
presented upon rectifying the defects within the prescribed period
of limitation. Nevertheless if the plaint is rejected after proper
adjudication as to the non-existence of a cause of action or upon
the suit being barred by law, the findings could operate as res
judicata and would not enable the plaintiff to re-agitate the same
question through filing a subsequent suit upon the same cause
of action and seeking the same relief, therefore, the question whether
a fresh plaint could be presented under Order VII, Rule 13 or
otherwise would depend upon the nature of the order passed by the
court in rejecting a plaint under Order VII, Rule 11, CPC. Whereas
in the case of Mian Khan v. Aurang Zeb and 12 others (1989 SCMR
58), it was held that the previous suit was admittedly not decided on
merits and the plaint was rejected under Order VII, Rule 11, CPC
without determining the amount of deficient court fee, which the Court
was bound to determine. If a plaint is rejected under Order VII, Rule
11, CPC, the plaintiff is not precluded from presenting a fresh plaint in
respect of the same cause of action in view of the provision of Rule 13
of Order VII, CPC, provided the right of action is not barred by any
law. Since a fresh suit can be filed after the rejection of the plaint, the
principle of res judicata is not applicable as there is no adjudication in
a case where the plaint is rejected. In order to apply the principle of
res judicata it is necessary to show that there was a decision finally
granting or withholding the relief sought.
15. In the wake of the above discussion, we do not find any illegality or
perversity in the concurrent findings recorded by the learned High
Court and the learned Additional District & Sessions Judge, Multan.
The Civil Petition is dismissed and leave refused.
Judge
Judge
Judge
Announced in open Court
On 10.11.2023 at Islamabad
Judge_____________
Khalid
Approved for reporting
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