1. ZAFFAR HUSSAIN MIRZA, J.-This order will dispose of Office Reference unregistered suits of 1980, namely, Mst. Jamila Bi; Niamat v. Mian Abdul Wahid and Akbar A.I Hashwani v. Rat Sahib Roopchand. In the first suit the plaintiff has claimed a decree for a sum of Rs. 13 lacs against the defendant and in the second suit the plaintiff prays for specific performance, possession, declaration and permanent injunction. The question for decision is common to both suits, namely, whether the plaintiffs should be required to pay court-fees on the plaints in the two suits.
2. We have heard Mr. U. Niamat Moulvi, Advocate for plaintiff in the first mentioned suit whose argument has been adopted by Mr. Abdul Memon Khan, Advocate for the plaintiff in the second suit. Mr. A. Sattar Sheikh, learned Addl. A.-G. Has addressed us on Court notice.
3. The learned counsel for the plaintiffs rely on the D. B. Decision of the High Court of Sind and Baluchistan in the case of Razak v. Usman (1) and contend that no court-fee is liable to be levied under the Court Fees Act, 1870 in suits filed on the original side of this Court. It has been brought to our notice by the learned Addl. Advocate-General that the Provincial Government has challenged the decision in the reported case in several appeals which are pending before the Supreme Court in which the judgment of the High Court has been stayed by order dated 22-10-1975 vide C. P. S. L.
4. A. No. K-128 and others. The Office has pointed out that in Suit No. 580 of 1975 and connected suits in this Court Fakhruddin G. Ebtahim, J. On a similar objection passed orders dated 31-5-1976 directing that the plaintiff may either pay court-fee or have deposited the amount in lieu of court- fee converted into court-fee subject to the Division Bench judgment not being upset by the Supreme Court or by reason of any amending law no court-fees are payable then the Provincial Government will forthwith refund the court-fee paid by the plaintiff. This order has been followed by several other Judges of this Court on the original side.
5. It is, however, contended on behalf of the plaintiffs that Tanzil-ur--Rehman, J. In a recent case reported as Yousef A. Mitha v. Aboobaker (2) followed the judgment of the D. B. Referred to above and held no court-fee is leviable; on the original side of this Court notwithstanding !The stay granted by the Supreme Court until the D. B. Decision is set aside by the Supreme Court. Counsel has also referred to Muhammad Ismail v. State (3) where it was held that mere grant of leave by the Supreme Court against judgment; passed by the High Court cannot preclude the High Court from referring to such judgment. It is further contended that until the view taken by the Division Bench is set aside by the Supreme Court, it will be proper for this Court to follow the same as it has binding effect under Article 201 of the Constitution.
(1) P L.R 1975 Kar. 944(2) PLD 1980 Kar. 492
(3) PLD 1974 Kar. 29 Learned Additional Advocate-General has filed on the leave granting order by the Supreme Court against the judgment of the Division Bench. (PLD 1975 Kar. 944) by order dated 21-9-1976 in which it was observed that the cases undoubtedly raise a question of law of general importance upon which there appears to be some divergent judicial opinion which needs to be resolved.
6. After carefully considering the submissions of the learned counsel, we regret our inability to agree with the view expressed by Tanzil-ur-Rehman, J. In the case of Yousaf A.I Mitha. We agree that the D. B. ,judgment of this Court is entitled to highest regard and consideration. According to the well- established practice a D. B. Judgment so far as it relates to a question of law is to be followed by another D. B. Of the same High Court,. However the learned Additional ,Advocate-General has pointed out the difficulties that will follow in the matter of collection of revenue by way of court-fee in case the D. B. Judgment is upset by the Supreme Court. He submits that it will be extremely difficult if not impossible to trace out the plaintiffs or effect recovery of the amount of court-fees from them in such event. He, therefore, gave an undertaking on behalf of the Provincial Government that in the event of a decision given by the Supreme Court upholding the view of the D. B. Of this Court the Government would refund the -amount of court-fees recovered from the plaintiffs as has by now been the practice adopted in the orders passed by several Judges of this Court with the exception of Tanzil-ur-Rehman, J. We may point out that we are not at present finally disposing of the question of payment of court-fees but propose to pass a conditional order tentatively until the question of law is finally determined by the Supreme Court. We have, therefore, no intention to disregard the pronouncement of the D. B. Of this Court on the question of court-fees.
7. There is, therefore, no question of refusing to follow the decision of another D. B. Of this Court. In this context we may point out that there is no constitutional bar under Article 201 on the High Court to take a different view from that which has been taken by the Hugh Court on an earlier occasion as in terms Article 201 speaks of the binding effect of a decision of a High Court, to the extent that it decides a question o law or is based upon or enunciates a principle of law on the subordinate Courts. We cannot ignore the complication pointed out by the learned Additional Advocate- General. Another aspect of the matter that requires to be taken into consideration is that although the stay granted by the Supreme Court is not binding on persons other than parties to the pending appeals in the Supreme Court, the result of applying the law laid down in the D. B. Decision would be that such other persons would be in a better position than the parties in whose favour the case was decided by the D. B. In holding that they were not required to pay the court-fees. The result of the stay would be that parties to the D. B. Decision would bye required to pay court-fees where as non-parties would enjoy the benefit of the decision. In these circumstances, we feel that the practice consistently followed ever since the establishment of the original jurisdiction of this Court be continue till the final determination of the question of leviability of court-fees b the Supreme Court subject to the arrangement as provided in the order o Fakhruddin Gr. Ebrahim, J. court-fees is abolished on the original side of this Court, the Provincial Government will forthwith refund the court-fees paid by the plaintiffs. It may be clarified that the undertaking given by the learned Additional Advocate-General will be binding on the Provincial Government as one of the basis of the present Order.