' In this civil revision as well as C. R. 862/79 which I propose to dispose of along with this petition, the only point to be considered is whether the exemption granted by clause (xvii) of section 19 of the Court Fees Act to "petition by a prisoner or other person in duress or under restraint of any Court or its officers", extends to suit for damages in respect of or connected with or arising out of the restraint imposed upon the prisoner. Criminal Revision 861/79 arises out of a suit for damages of illegal restraint or imprisonmeni filed by Air Marshal (retired) Muhammad Asghar Khan, President, Tehrik-i-Istiqlal and Mian Mahmood Ali Kasuri Barrister-at-Law, President Tehrik-i-Istiqlal, Punjab.
The other civil revision emanates from a suit which was filed by these two plaintiffs along with other four persons which were likewise kept in custody which is alleged to be illegal and mala fide. The suit for these plaintiffs is for recovery of Rs, 40,00,000 as damages while the other suit is for recovery of Rs 300,000.
2. These plaintiffs were arrested on 17-3-1977 in a criminal case under section 342/109, 353/332, 392/147, 149, P. P. C. Writ Petition No, 526 of 1977 against their illegal detention was filed in the High Court. The suit for the recovery of Rs, 40,00,000 was filed during the pendency of that writ petition for damages for illegal deprivation of their liberty and honour, etc. In the above writ petition some of the accused were granted bail by the High Court on the ground that all the offences except offence under section 392 were bailable. Since according to the plaint the Officer conducting the investigation had also recorded in the diary that the accused were arrested because they failed to offer bail, the Court came to the conclusion that the allegations in the case prima facie were of bailable offences and all the accused were entitled to bail under section 496, Cr. P. C. Air-Marshal (Retired) Muhammad Asghar Khan and Mian Mahmood Ali Kasuri were not released despite the bail granted to them but were detained on the basis of two other cases registered against them in the Yakki Gate, Police Station. It was on account of their continued detention despite the grant of bail that they filed the second suit for recovery of Rs, 3,00,000.
3. Both the suits were filed during the period when the plaintiffs had been in detention. It was stated at the Bar that their detention was declared illegal by the High Court much later. Both the suits were not stamped with the court-fee. An issue was, therefore, framed in each case "whether the plaintiffs are not liable for the payment of court-fee" and was answered against the plaintiffs who were directed to deposit the court-fee before the 25th, June 1979 "failing which the plaints shall be rejected under Order VII, rule 11 C. P. C. According to the learned counsel appearing for the petitioners this date has been extended under section 149, C. P. C. And no order of rejection of the plaint has so far been passed.
4. The learned counsel relied upon Kali Prosad Banerji v. Messrs Gisborne & Co., Sardar Singh v. Mt.
Champa and others and Masahib Khan v. Muhammad Akbar and another and argued that clause (xvii) of section 19 of the Court Fees Act is not confined to cases of bail or habeas corpus or criminal appeals or revisions but applies even to civil suits if the cause of action for the same arises out of the illegal restraint or duress, and civil appeals when filed during the period of such restraint.
None of the cases relied upon by the learned counsel laid down such a broad proposition. In the Calcutta case a judgment ;debtor while in the custody in execution the decree, applied to the Court under Chapter XX of the old Code of Civil Procedure to be declared an insolvent. The application was refused. The judgment-debtor appealed against the order rejecting his application without affixing any court-fee. The Taxing Master referred the following questions to the Chief Justice under section 5 of the Court Fees Act :
(1) Are the provisions of clause (17) of section 19 limited to petitions directly connected with the duress ;
(2) If so would the present appeal come within that category ?
' It was held by Garth Chief Justice that clause (17) is applicable to a case of this kind and consequently no court-fee is payable on the appeal.
6. This case is clearly distinguishable since it was not a case of suit or appeal arising out of a decree, it arose out of a petition or application for insolvency directly connected with the proceeding of execution of the decree by arrest of the petitioner who was not in a position to pay his debts. The case is an authority only to the extent that clause (17) is not confined to criminal matters or petitions for release of a detenu from custody but may also apply to civil proceedings.
7. In Sardar Singh v. Mt. Champa and others an application for permission to appeal in forma pauperis was dismissed. During the course of the revision, reliance was placed upon clause (xvii) of section 19 of the Court Fees Act. It was held that the plea as to exemption from payment of Court fee under section 19 (xvii) cannot be raised for the first time in revision as it involves a question of fact. However, it cannot be allowed to be raised in a case where the petitioner himself had applied for permission to file his appeal as a pauper. While dismissing the petition for these reasons it was further observed that, in any case, the appeal must be one in respect of, or connected with, or arising out of, the matter in connection with which the petitioner is in prison, in duress or under restraint. It was held that if the argument of the learned counsel is accepted the results will be startling. To mention only one aspect of the matter, all that a person who is desirous of filing a suit frivolous or otherwise-for which the maximum court-fee prescribed by the Court Fees Act is payable need do to avoid the payment of the court fee is to make default in the payment of a trifling amount out of some tax or other, which is recoverable as land revenue, and thus induce the authorities whose duty it is to collect the tax to arrest him and to detain him just long enough to enable him to have a special power of attorney attested by the officer detaining him and to have1 2 3 the plaint filed by the special attorney so appointed. Other similar consequences are easily conceivable. This case is also not helpful since the petition before the High Court was dismissed on the ground that the petitioner could not be allowed to raise for the first time in a revision the plea of exemption from payment of court-fee. The observations on which the learned counsel relied do not apply to a suit. In the case from Azad Jammu & Kashmir it was laid down that clause (xvii) of section 19 contemplates a petition by a prisoner claiming some relief or indulgence or right on behalf of himself in his capacity as a prisoner. Where the application does not concern liberty, safety or right of the prisoner himself but is on the contrary an application affecting the rights and freedom of other persons not in custody and whom the applicant prays to be convicted, the application does not fall 'within section 19(17) and as such is not exempt from stamp duty. This view was taken earlier in Moll Pansari v. Usman and others.
9. The exemption in this clause is indeed to the petitions and not to plaints in the suits. It may be clear from the reading of the Court Fees Act that where any provision relates to suit either the word 'suit' or the word `plaint' is used. Reference in this connection may be made to section 7 which deals with computation of fee payable in certain "suits for money", section 11 dealing with "suits for mesne profits and accounts", and section 17 dealing with multifarious suits. In section 19 also in clause (iii) exemption is given to a document, i. e. The written statement which is to be filed in a suit. In sections 12 and 13, Articles 1 and 2 of Schedule I, Articles 4 and 5 of Schedule II the word `plaint' is used. Similarly wherever an application or petition is dealt with the word `application' or `petition' is used. See sections 14, 15, clauses (ix) (x) (xi) (xii) (xiv) (xix), (xx), (xxii)(xxiv) of sections 19, Article 3 of Schedule I, Article 1 of Schedule II. The only exception where in regard to suit also the word 'petition' has been used is in Article 14 of Schedule II, which deals with "petition in a suit under the Native Converts Marriag Dissolution Act, 1866" but the use of the word 'petition' in connection with B the above Act is justified since contrary to the general rule that suits are initiated by filing of plaints section 7 of the Act of 1866 provides that the suits shall be commenced by a petition and in all other subsequent provisions the word `petition' has been used as a substitute for suits.
10. This being the position, it is clear that the Legislature has made a distinction in the Court Fees Act between a "suit" and a "petition" or "application". The exemption in clause 17 is not, therefore, applicable to suits which are initiated by plaints. I do not, therefore, agree with the submission that clause 17 is preferable to suits for damages of the present type where the cause of action is said to arise out of illegal detention of the plaintiffs.
11. Moreover I am of the view that no cause of action accrued to the petitioners for filing suit unless their detention was held illegal or unjustified suit for malicious prosecution arises only on the acquittal of the plaintiffs. In these cases the plaintiffs were arrested on the charge of having committed criminal offences. The cause of action for damages would not arise to them before their acquittal or discharge or declaration of their detention as illegal. In the present cases the petitioners were no doubt under duress on the date of the filing of the suits, but their detention was declared illegal much later. The suits were, therefore, premature and they matured after they were released and were no longer in detention. For this reason too the exemption is not applicable to their cases.
12. Both the petitions are dismissed in limin. I L R 10 Cal. 61 AIR 1942 All. 45 PLD 1957 Azad J K 54 (1936) 162 I C 298 (All.)4 1 2 3 4