MUHAMMAD AMEER BHATTI, J. Through this Constitution Petition the petitioner has challenged the order C.L.R. dated 5.5.2011 passed by the respondent No. 2, whereby he has directed the petitioner to affix the Court-fee of Rs. 15000/- on the plaint pending before the learned Trial Court in a suit as an ad volrem Court-fee on the value of the subject-matter under Article 1 Schedule 1 of the Court-Fees Act is applicable being a suit for cancellation of document, which would be covered by Section 39 of the Specific Relief Act.
2. Brief facts of the case are that the petitioner filed a suit for declaration and permanent injunction through which he sought that the gift deed has no legal effect on the rights of the petitioner/plaintiff as the purported gift deed is illegal and unlawful and its incorporation in the revenue record is also not in accordance with law and the petitioner/plaintiff is entitled of half share of the suit property.
3. It is a case of the petitioner/plaintiff that the property in dispute in fact was belonged to the father of the parties and by committing fraud with his father, the respondent/defendant obtained the property in dispute through gift mutation.
4. The respondent/defendant contested the suit and filed an application under Order 7, Rule 11, CPC for rejection of plaint for not affixing the Court-fee.
5. Application was contested by the petitioner and the learned Trial Court vide order dated 10.02.2011 dismissed the application of the respondent/defendant. Respondent/defendant preferred a revision and succeeded to have the finding from learned Additional District Judge. It is assailed by the aggrieved plaintiff in extraordinary jurisdiction of this Court.
6. Learned counsel for the petitioner contended that from the bare reading of the plaint, the matter squarely fell within the ambit of Section 7 (IV) (C) of the Court-Fees Act and the Court was duty bound to accept the valuation given in the plaint for payment of Court-fee on it. It is contended that plaintiff under the provisions in Section 7(IV) (C), Court-Fees Act is at liberty to value the suit for the purpose of Court-fee and the Court has no jurisdiction to interfere in the proposed assessm ent of the valuation given by the plaintiff. Reliance is placed on Khushi Muhammad and others v. Noor Bibi and others (2005 YLR 2645), Muhammad Sharif and another v. Mst. Azra Parveen and another (1979 CLC 867) and Amir A.I v. Addl. District Judge, etc. (NLR 1989 Civil 55).
On the other hand, learned counsel for the respondents in support of the impugned order referred the judgment of this Court reported on Rashid Ahmad v. Haq Nawaz and others (1982 CLC 9), Mst.
Bhagan v. Mubarik Begum and others (1988 MLD 2929) and Muhammad Sharif and another v. Mst.
Azra Parveen and another (1979 CLC 867)
7. I have heard the learned counsel for the parties and also gone through the plaint as well as the law laid down referred above.
8. Same identical question of fact and law has been considered in a case reported as Muhammad Riaz Aslam v. Muhammad Akhtar and 2 others (1993 CLC 1391):- "In order to determine the proper Court-fee payable on the plaint in a particular suit, the correct principle is that the plaint as a whole should be looked at and that it is the substance of the plaint and not its ostensible form which really matters. The veil could be pierced through by a searching eye for judging the true substance of the plaint to determine the taxability of Court-fee on the plaint. There is a difference between a suit for cancellation of a document under Section 39 of the Specific Relief Act and a suit for declaration of title filed under Section 42 of the Specific Relief Act.
When a party had sought to establish a title to the property in himself and could not establish that title without removing an obstacle such as a deed by which he was otherwise bound, then quite clearly he must get that deed avoided and his suit, though camouflaged in a declaratory form must in reality be a suit for cancellation of the document. Father of the plaintiff had made a gift of his properties in favour of his one son, unless those gift-deeds were avoided in toto, the plaintiff could not succeed in his suit for separation of his share through partition of the properties.
Registered gift deeds were an insuperable obstacle in the way of the plaintiff for getting the appropriate relief claimed by him. Therefore, though the suit was put in the form of declaratory relief for avoidance of registered gift-deeds yet the suit was visibly intended for cancellation of two documents executed by his father in his lifetime. Therefore, the plaintiff was liable to payment of ad valorem Court-fee on the value of the subject-matter in dispute under Article 1, Schedule 1 of the Court-Fees Act and that valuation was already given in the registered gift deeds sought to be avoided in the suit by the plaintiff."
Since the law laid down is squarely applicable in the case in hand and this Court is bound by the earlier view taken by this Court as it has been held by the Hon'ble Supreme Court in case reported as Multiline Associates v. ARDESHIR COWASJEE and others (1995 SCM R 362):--- .
"---Earlier judgment of equal Bench in the High Court, on the same point is binding upon the second Bench-- -If , however, a contrary view has o be taken, then request for constitution of a larger Bench should be made."
9. The case-law cited by the learned counsel for the petitioner has distinguishing features and did not fully cover the point at issue.
10. Upon this view of the matter, I decline to interfere in writ jurisdiction of this Court. Consequently, writ petition , is dismissed. The plaintiff may pay the required Court-fee upon the plaint within one month from the order of this Court. No order as to costs.