' By this common order, I intend to dispose of the aforesaid matters as the points raised in all these matters are similar.
2. The facts as they appear from the record are that the petitioner made an application C.M.A.
No.5842 of 2003 in this Court impugning the objections dated 3-3-2003 raised by the Assistant Registrar (0.5.4.), inter alia, on the ground that the petitioners were liable for payment of ad volrem court-fee on the foreign award which was sought to be enforced on 12-12-2002 by this Court.
3. It appears that the office raised the objection of payment of ad volarem court-fee apparently in view of the judgment given by an. Hon'ble Judge of this Court in the case of A. Meredith Jones and Co. Ltd. v. Usman Textile Mills Limited, reported in 2000 YLR 549, in which the Hon'ble Judge of this Court has held that the application under sections 5 and 6 of the Arbitration (Protocol and Convention) Act, 1937 and applications under sections 30 and 33 of Arbitration Act 1940 be registered as a suit. The office previously was registering these matters as Judicial Miscellaneous Applications, pursuant to the aforesaid judgment started registering all such matters as suit. The office further started demanding ad valorem court-fee on such matters as according to the office if a matter is registered as a suit then the law required the party to pay volarem court-fee on it.
4. In view of the above controversy, the application referred to hereinabove was made by the counsel for the petitioner impugning the office objections. During the pendency of the matter it was pointed out by the learned counsel for the Applicant/petitioner that there were other identical matters pending in this Court and therefore, the office was directed to fix all such matters in Court.
It was further ordered that Mr. Samiuddin Advocate would appear as "amicus curaie" in these proceedings to assist this Court as the case in hand, was of first impression besides, the notice was also issued to the Advocate-General Sindh to appear and assist this Court.
5. Mr. Samiuddin has submitted that the language of section 20(2) of the Arbitration Act 1940 is similar to the language of section 5(2) of Arbitration (Protocol and Convention) Act 1937. He submitted that language of both these sections suggest that an application either for setting aside the award and or for enforcement of the award to be filed in Court has to be registered as a suit. He further contended that under the Sindh Chief Court Rules (0.S) Chapter XIX titled as "Arbitration" refers to proceedings under Chapters III and IV of the Arbitration Act 1940 procedure of which is provided under Rule 278 to Rule 292. The Rule 278 of Sindh Chief Court Rules provides that an application under section 20(1) of the Arbitration Act 1940 shall be verified, numbered and registered as a suit in this Court and all subsequent applications shall be enlisted in such suit. He therefore, submits that merely language of the rules requiring registration of an application as a suit would not justify the office to recover ad valorem court-fee on such matters.
6. According to Mr. Samiuddin, by legal fiction the application has been treated as suit and in substance, its status will remain as that of an application only. In this regard he has relied upon the case of S. Muhammad Naim Muhammad Alam v. Rauraffic and Far Eastern Ltd. (AIR 1960 (sic) 146); Messrs Jugo Tetekstil Impex, 61001, Lubijana Yugoslavia v. Messrs Shams Textile Mills Ltd. (1990 M LD 857); Hassan Ali & Co. (Pvt.) v. Poly Cotton S.A. And others (1996 CLC 1812); and Messrs Lachman Das Sat Lal and others v. Parmeshri Das and others (AIR 1958 Punjab 258).
7. Ms. Sumayya Usmani contended that under section 5(2) of the Act of 1937, mere registration of an application as a suit would not justify the office to seek payment of ad valorem court-fee. She argued that the section 3 of the Court Fees Act, 1870 provides that all the articles/items mentioned in First Schedule of Court Fees Act are subject to levy of ad valorem court-fee whereas the items/articles which are not mentioned in the First Schedule and are mentioned in the second schedule of section 3 of the Court Fees Act 1870 are liable to the payment of court-fee as fixed there under.
8. The learned counsel next contended that it is the substance of relief sought for and not the form which would determine the valuation and payment of court-fee. In support of her contention, she has relied upon the case of Kamaleshwar Kishore Singh v. Paras Nath Singh reported in AIR 2002 SC 233.
9. She next contended that section 3 read with First Schedule of the Court Fees Act 1870 does not mention payment of ad valorem court-fee on the applications made either under section 20 of the Arbitration Act or under section 5 of the Act 1937, therefore, the office was in error in demanding ad volarem court-fee from the petitioner on the decree on mere registering the matter as suit as the payment of ad valorem court fee is leviable in terms of the provisions of Court Fee Act 1870 and cannot be made leviable by virtue of any provision of the Protocol Act 1937 or the Arbitration Act 1940.
10. Mr. Ahmad Pirzada, learned Additional Advocate-General has contended that since these cases are registered by the office as suit which imply that ad valorem court-fee is payable.
11. I have heard the learned counsel for the parties and have perused the record. The arguments advanced by the learned counsel for the petitioner and Mr. Samiuddin are not without substance.
In order to levy ad valorem court-fee, the provisions of section 3 read with First Schedule of the Court Fees Act 1870 cannot be lost sight. Mere language of section 5(2) of the Act 1937 or 20(2) of the Arbitration Act 1940 would not justify the office to demand ad valorem court-fee on the application made under the aforesaid statutes either for enforcement of awards or for setting aside of the awards. In fact it is the substance of relief sought for and not form which will be determinative of valuation and payment of court-fee, as has been held in the case of Kamaleshwar Kishore Singh v. Paras Nath Singh reported AIR 2002 SC 233. Additionally even the language of Rule 294 of the Sindh Chief Court Rules clearly suggests that an application under sections 3 and 5 of the Act 1937 shall be treated as a petition and shall be disposed of as miscellaneous application. The office has relied upon the decision of an Hon'ble Judge of this Court in the case A. Meredith Jones & Co. Ltd. v. Usman Textile Mills reported in 2002 YLR 549. The issue in the said case was confined to the registration of an application under the Arbitration Act or under the Protocol Act 1937 as suit but it has not been held in the said case that the ad valorem court-fee is payable in such matters. Therefore, the objections of the office on the basis of the aforesaid judgment requiring the petitioner to pay the ad valorem court-fee is overruled as such, demand was unwarranted in law.
12. For the aforesaid reasons the office objections are overruled and the application of the petitioners is allowed. These are the reasons of my short order, which I have passed on 1-2-2005.