1. ' By this order I will dispose of CMA-6089/89 and CMA-7083/89 filed by the plaintiffs. In the former application dated 20-9-1989 the plaintiffs have prayed for payment of court-fees by them after the preparation of the decree and realisation of the decretal amount from defendants 1, 3 and 4 and further that the judgment dated 14-9-1989 given by the Court be amended accordingly. In the latter application dated 11-10-1989 the plaintiffs have prayed for extension of time for two months for payment of the deficient court-fees. In the accompanying affidavits to these applications the plaintiffs have come forward with more or less the same grounds stating that they could not raise funds for payment of court-fees on account of their poverty and that they live in Lahore.
2. ' These applications have been vehemently opposed by the defendant No,3, according to whom the judgment and decree passed by the Court cannot be amended. It is also contended that after the pronouncement of judgment the Court has become functus officio. Further, the plaint of the plaintiffs stands rejected by order dated 14-9-1989, for non-payment of court-fees.
3. ' This suit was for recovery of Rs,9,60,000 as damages under the Fatal Accidents Act, 1855, was filed by the mother, wife and minor children of deceased Arif and was decreed for Rs,5,46,000 against defendants Nos.1 and 3 and far Rs,20,000 against defendant No,4. In the said order dated 14-9-1989 the learned Judge of this Court directed as under: ' However, it is further ordered that the decree in the suit would be prepared only after the payment of ad valorem court-fees by the plaintiff which they are directed to pay within 30 days from the date of this judgment, failing which the plaint shall stand rejected."
4. ' It will thus be seen that the plaintiffs were required to pay ad valorem court-fees upto 13-9-1989.
5. However, before the said date they moved CMA6089/89 under sections 149, 151 and 152 C.P.C. On 20-9-1989 and filed CMA- 7083/89 under sections 148, 149 and 151 C.P.C. On 11-10-1989. It is contended by Mr. GA. Brohi, learned counsel for the plaintiffs, that both the applications were filed before the expiry of 30 days when the Court was seized of the matter and may be reconsidered on the grounds enumerated therein. At the outset learned counsel for the plaintiffs brought to my notice that the suit was filed by the widow and minor children of the deceased under the Fatal Accidents Act and, that after prolonged litigation a decree has been passed in favour of the plaintiffs. According to him, this decree should not be allowed to be defeated on the mere technicality of non-payment of court-fees within time. In this context, he referred to Pakistan Steel Mills Corporation Limited v. Nazir Hussain Shah, 1990 CLC 515 (Karachi), in which it was held that public functionaries should resist the temptation to frustrate the genuine claim arising out of fatal accidents by raising technical pleas.
6. ' Next it was contended by him that the Court possesses wide powers to extend time for payment of court-fees as it is a matter between the plaintiff and the State and has nothing to do with the defendant. In support of his contention learned counsel placed reliance on Sharaf Faridi v. MA.
7. Shahani reported in PLD 1975 Karachi 59 wherein it was held as follows: .Court Fee--Matter of revenue -- Court Fees Act cannot be used as a weapon of technicality against opponent.
8. ' The Court Fees Act was passed not to arm a litigant with a weapon of technicality against his opponent, but to secure revenue for the benefit of the State. This is evident from the character of the Act, and is brought out by section 12, which makes the decision of the First Court as to value final as between the parties, and enables a Court of appeal to correct any error as to this, only where the First Court decides to the detriment of the revenue. The defendant in this suit seeks to utilize the provisions of the Act not to safeguard the interest of the State, but to obstruct the plaintiff; he does not contend that the Court wrongly decided to the detriment of the revenue but that it dealt with the case without jurisdiction."
9. ' Mr. Raza Hussain Haidri, learned counsel for defendant No,3 contended that the order dated 18-9- 1989 is very clear as it directs the plaintiffs to pay ad valorem court-fees within 30 days from the date of the judgment failing which the plaint shall stands rejected. Thus it is argued by him that after passing of this judgment the Court has become functus officio. Reference was made by him to Shah Wali v. Ghulam Din alias Gaman and another, PLD 1966 SC 983, wherein it was held as follows: "Section 148 of the Civil Procedure Code gives the Courts powers to extend time previously fixed or granted by it for the doing of any act prescribed or allowed by the Code of Civil Procedure and this they can do even after the period originally fixed or granted has expired. But this section, it' is now well settled, does not apply where the period is fixed by a decree in a suit unless the decree is in the nature of a preliminary decree and the Court still retains season over the action. The principle upon which it has been so held is that since a decree normally puts an end to a suit the power of the Court to pass any other order with respect to that particular suit thereafter also comes .To an end and the Court becomes fungus officio with regard thereto. The exception made in the case of a preliminary decree is also on the same basis that in the case of a such a decree the Court does not become functus officio but still retains control over the action and, therefore, has full power to make necessary orders therein including an order for the extension of time. This distinction is not without importance, for, even orders contained in decrees, which are not strictly speaking preliminary decrees, may not always be such as are intended to operate automatically without any further intervention by the Court. The real test, in my view, is whether the decree has been made in such terms as to indicate that the Court has finally disposed of all matters so that it is to operate automatically or whether the Court has still retained some control over the litigation. An examination, therefore, has to be made of the precise terms used in the decree. In the present case, the decree of the trial Court used the words that in the event of default the suit "will be dismissed". These are not words of automatic operation, for, they contemplate a further order dismissing the suit. But the District Judge in the appellate decree made good this defect by stating that in the event of default the suit "will be treated as dismissed". These words were capable, in my view, of operating automatically without any further order by the Court.
10. ' That there is a difference between the words "will be dismissed" and "will stand dismissed" or "will be treated as dismissed" has been generally accepted and the Courts have been inclined to invoke their power under section 148 of the Code of Civil Procedure where the words used are "will be dismissed" or words of similar import vide Dewratan v. Kristo Mohan Shah but where the words used are words of finality and are to take effect automatically this section can have no manner of application and the time cannot be enlarged. This is also the view of the English Courts vide The Script Phonographic Co. v. Gregg & Whistler v. Hancock.
11. ' In this view of the matter since the decree passed by the District Judge on appeal contained the words that the "suit shall be treated as dismissed with costs" indicating that the default clause was to operate automatically without any further order from the Court, and this was the decree that was upheld by the High Court the executing Court could have had no jurisdiction to enlarge the time fixed thereunder, That decree could only have been modified on an appeal from the decree itself to a competent ' Court under Order XLI, rule 32 of the Code of Civil Procedure and not under section 148 of the said Code."
12. ' Reliance was also placed on Aqeel Hussain Jaffery v. Masood Jeelani and others reported in 1975 SCM R 258. Lastly, learned counsel placed reliance on Haji Nawab Khan v. Fazlur Rahman and another, PLD 1976 SC 502, where it was held as follows:-- "In any event, it is clear that no relief can be granted, because if the decree of the trialCourt stated that in the event of the default in the payment the "suit shall stand dismissed", then, on the happening of the default, the decree became operative of its own force and the time fixed thereunder could not be extended thereafter".
13. ' In view of the legal position enumerated above, it is evident that the plaintiffs had allowed the time to pass and failed to pay court-fees within 30 days. Therefore, the decree became operative of its own force. The fact that the two applications were filed before the expiry of the time fixed under the judgment/decree is of no consequence as the Court had become functus officio after it passed its judgment and decree dated 14-9-1989. The Court no more retains seizin over the matter as there is nothing left to be done further. The time within which the court-fees was to be paid by the plaintiff has elapsed and the plaint stands rejected upon the expiry of the period. Although, it is unfortunate but I am bound by the decisions of the Supreme Court. Accordingly, I dismiss both the applications.