1. ' NADEEM AZHAR SIDDIQI, J:--- The petitioner has filed this Judicial Miscellaneous Application under the provisions of the Sindh Privatization Commission Ordinance NO,25 of 2001 (hereinafter referred to as the Ordinance) with the prayer to direct the respondents to transfer 75 acres of land situated at Gadap Town to the petitioner.
2. ' The office has raised the following objections:--- "(1) The petitioner has filed the petition under section 27 of the Sindh Privatization Ordinance NO,25 of 2001, by way of judicial miscellaneous instead of filing a suit in view of the order dated 27-3- 2003, passed by the Honourable Division Bench in C.P. NO,D-983 of 2000. Affixing the court-fee of Rs,10 only instead of payment of separate court-fees in respect of five lots of land each measuring 15 Acres situated at Gadap, Karachi as averred in para.2 of the petition and copies of the bid forms as per Annexures "P.3" to "P.7" at pages 43 to 51 as provided under section 17 of the Court Fees Act in respect of each five lots of land and photocopy of order dated 27-3-2003 passed by the Honourable Division Bench in C.P. NO,D-983 of 2000 is enclosed herewith for favour of perusal.
(2) Let the list of legal heirs of the petitioner be filed."
3. ' According to the office objections, the petitioner has to file a regular suit and has to pay court- fees in accordance with section 17 of the Court Fees Act. The learned counsel for the petitioner filed reply to the objections.
4. ' Mr. M.G. Dastagir, learned counsel for the petitioner submits that the said Ordinance is special law and an exclusive jurisdiction was conferred upon the High Court to adjudicate and settle all matters under the Ordinance. He submits that the instant application is Judicial Miscellaneous Application like an application under section 12(2), C.P.C. And various applications under the provisions of Arbitration Act, 1940, and other laws and is to be treated as an application under special law and no advolorum court-fee is payable. He relied upon the case of United Bank Limited v. Messrs J. Ty & Co. Limited 2002 CLD 917 and Sheikh Fazal Rehman & Sons Limited v. Ghee Corporation of Pakistan 2003 CLC 1823. He further submits that even if the application is treated as suit maximum court-fees of Rs,15,000 is sufficient. He relied upon the case of Aslam Industries Limited, Khanpur v. Pakistan Edible Corporation 1993 SCM R 683.
5. ' Mr. Rafiq Rajorvi, learned Additional Advocate-General supports the objections raised by the office and submits that the dispute is to be adjudicated on the original civil jurisdiction of the High Court and a regular suit has to be filed and since the suit was filed on distinct cause of action. Court fees is payable in accordance with section 17 of Court Fees Act.
6. ' Mr. Zafar Ahmad Khan learned counsel for the respondent NO,1 while adopting the arguments of learned Additional Advocate-General submits that the relief in the nature of specific performance has been prayed and that relief cannot be granted in the proceedings of summary nature. He submits that since the provisions of C.P.C. Was made applicable the filing of suit by way of presenting the plaint is must and the present judicial miscellaneous is not maintainable.
7. ' I have heard the learned counsel for parties and perused the record and the case-law cited by the learned counsel for the parties.
8. ' Section 27 of the Ordinance provides that High Court should exercise exclusive civil and criminal jurisdiction. Section 28 of the Ordinance provides that in exercise of civil jurisdiction the High Court shall follow the procedure as nearly as possible, as provided in the Civil Procedure Code, 1908 and in its discretion, having regard to the facts of the case follow the summary procedure as nearly as possible provided under Order XXXVII, C.P.C. Since the Civil Procedure Code is made applicable the procedure for filing of regular suit cannot be dispensed with. Order IV, rule 1, C.P.C. Provides that every suit shall be instituted by presenting the plaint to the Court or such officer, as is appointed in its behalf. Rule 2 of Order IV provides that every plaint shall comply with the rules contained in Orders VI and VII so far as they are applicable. The procedure for filing regular suit is also confirmed by application of Order XXXVII, C.P.C, which also provides for filing of suit. Regarding the filing of application under section 12(2), C.P.C. Is concerned, the law itself provides for filing of application.
9. As far as various applications under Arbitration Act are concerned, section 20 of the Arbitration Act provides for filing of application and section 33 of the Arbitration Act also speaks about filing of application to contest arbitration agreement or award. Section 32 of the Arbitration Act bars filing of suit for contesting arbitration agreement or award. The first case cited by Mr. M.G. Dastagir relates to the case under Banking Companies (Recovery of Loans, Advances, Credits and Finances)
10. Act, 1997 and in that case with reference to special law it was held that where a special law confers exclusive jurisdiction on Special Court or forum created for the purpose then ordinary jurisdiction conferred under the general law would not be available. In the present case, no Special Court was created under the said Ordinance therefore the principle laid down in that case is not available. In the case of Ghee Corporation the Lahore High Court has converted a writ petition into petition under section 28 of the Ordinance for the reason that the petition was filed in the year 1995 and the Privatization Commission Ordinance came into existence in 2000. The learned author has not considered the implications of sections 28 and 29 of the Ordinance which provide that the High Court shall exercise exclusive civil and criminal jurisdiction. In my humble view the facts of the reported case are distinguishable and are not applicable to the present case.
11. ' The other objection raised by the office is regarding payment of court-fees in accordance with section 17 of the Court Fees Act. The plaintiff has made five different offers for five different lots of lands. Every bid is a distinct transaction. No doubt the plaintiff and the defendants are the sane.
12. The court-fee has to be paid on the basis of valuation of subject matter of suit. Section 17 of Court Fees Act reads as under:--- "17. Multifarious suits.--- Where a suit embraces two or more distinct subjects, the plaint or memorandum of appeal shall be chargeable with the aggregate amount of the fees to which the plaints or memorandum of appeal in suits embracing separately each of such subjects would be liable under this Act.
13. ' Nothing in the former part of this section shall be deemed to affect the power conferred by the [Code of Civil Procedure, 1908 (Act V of 1908)] section 9."
14. ' In the reported case of Aslam Industries Ltd. Khanpur v. Pakistan Edible Corporation of Pakistan 1993 SCM R 683, the Honourable Supreme Court has held as under:--- "A maximum ceiling to court-fee Is provided on the documents listed in this Article, which includes a plaint. This would therefore apply, irrespective of the consideration whether section 17 is applicable to the case. The ceiling overrides the rule contained in section 17."
15. 'Keeping in view the observation of the Honourable Supreme Court the maximum court-fee of Rs,15,000 is payable.
16. ' The objections are upheld and the judicial miscellaneous application is returned to the petitioner for presenting/filing the same before the competent Court in accordance with law.