' FAZAL ELAHI KHAN, C.J.--This writ petition by Muhammad Akbar Khan, the plaintiff, is directed against the judgment and order of Additional District Judge-H, Swabi dated 10-6-1989, whereby his appeal against the judgment and order of Civil Judge, Swabi dated 10-1-1988, returning the plaint for failure to affix court-fee thereon, was dismissed. The orders of both the Courts are challenged to be illegal, without lawful authority and of no legal effect.
2. Facts of the case which have emerged from the contents of the petition briefly stated are that respondent No.1 had charged the plaintiff-petitioner for the abduction of her daughter and a report in this respect was lodged in Police Post Jehangira, on 13-10-1981, however; he was honourably acquitted and the charge brought against him under section 11/19(3) of the Zina Ordinance, 1979, was found baseless. The present suit was, therefore, brought for recovery of rupees twenty-five thousand as compensation for false prosecution, defamation and mental torture.
3. Defendant while contesting the plaintiff's suit in her written statement also made an application to the Court for ordering the plaintiff to affix the required court-fee on the plaint. The defendant's application was rejected on 14-5-1987 by the trial Court on the ground that no court-fee was leviable as the subject-matter of the suit was not in excess of twenty-five thousand rupees.
Aggrieved by the order the defendant challenged it in revision before the Additional District Judge, Swabi who accepted the same on 28-11-1987, set aside the order of the trial Judge and remanded the case with the direction to the plaintiff to affix the required court-fee within the period fixed therein. It is the last order which was challenged in W.P. No.22 of 1988, however, in the meantime his suit was dismissed for failure to comply with the order hence the writ petition was dismissed for its having become infructuous. It was, however, observed that the order of rejection of the plaint can be challenged in proper proceeding in a Court of competent jurisdiction. On the dismissal of the plaintiff's appeal there being no other remedy provided under the law for his redress, the plaintiff- petitioner has invoked the jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan.
4. The only question requiring determination in the present writ petition is whether N.-W.F.P. (Court Fees) (Amendment) Ordinance, 1982 through which section 7 of the Court Fees Act was amended has in any manner interfered with the 'abolition of court-fee on certain suits i.e. The suits the valuation whereof or relief claimed therein does not exceed twenty-five thousand rupees provided for under section 2 of the N.-W.F.P. Court Fee (Abolition) Ordinance, 1978.
5. After hearing learned counsel for the parties, in order to appreciate their contentions it would be helpful to reproduce the relevant provisions of law referred to above. Court-fee was abolished in certain cases through Ordinance of 1978, relevant section whereof is as follows:-- S.2. "Abolition of court-fee in certain cases: ' Notwithstanding anything contained the Court Fees Act, 1870 (VII of 1870), or any other law for the time being in force, or any rules or orders, no court-fee shall be payable in, or chargeable by, any Court in respect of----
(a) any criminal case; and
(b) any case of civil nature the value of the subject-matter whereof, or relief claimed therein, does not exceed twenty-five thousand rupees."
' Further amendment was made by N.-W.F.P. Ordinance XVII of 1980 whereby section 2-A was added to section 2 reproduced above which is as follows:-- 2-A. Payment of court-fees at punitive rate: ' If in a case of civil nature falling under clause (b) of section 2, the Court if of opinion that the claim or any part of it was false and either frivolous or vexatious the Court shall by order in writing, if the party by whom the claim was preferred is present, call upon him forthwith to show cause why he should not pay court-fee on the entire claim or, as the case may be, part thereof, at double the rate which would, but for section 2, have been leviable in such a case under the Court Fees Act, 1870 (VII of 1870) or, if such party is not present, direct issue of a summons to him to appear and show cause as aforesaid:---- ' It is pertinent to note that section 7, clause (i) of the Court Fees Act, 1870 specifically provided for court-fee in suits for money which is reproduced as follows:-- "(i) In suits for money (including suits for damages or compensation, or arrears of maintenance of annuities or of other sums payable periodically)---according to the amount claimed."
' The aforementioned section of law was amended by the N.-W.F.P. (Court Fees) (Amendment)
Ordinance, 1982 whereafter the amended section 7, clause (i) of the Act is as follows:-- "(i) In suits for money (including suits for damages or compensation, other than the suits for damages or compensation claimed under the Fatal Accidents Act, 1855 (XIII of 1855), or arrears of maintenance of annuities, or of other sums payable periodically---accordingly to the value claimed."
The above provision of law brought about in the Act through amendments from time to time would clearly show that section 2 whereby court-fee was abolished in the category of cases referred to therein by Ordinance of 1978, has not been interfered with by the subsequent amendments. Thc words "Notwithstanding anything contained in the Court Fees Act of 1870" in section 2 are singificant in the context of the present dispute. Section 7(i) of the Act, no doubt, provides for levy of ad varlorem court-fee on suits for money including that for damages or compensation but it was through the amending Ordinance of 1982 that those suits in which damages or compensation are claimed under the Fatal Accidents Act, 1855 were specially excluded therefrom, therefore, it has even then to be read subject to section 2 which pertains to abolition of court-fee. For the suits where damages or compensation are claimed under the Fatal Accidents Act, which have been excluded from the purview of section 7(i) a provision has been made by addition of Article 22 in Schedule II of the Act, and fixed court-fee of Rs. 15 is made leviable on the plaint or memorandum of appeal irrespective of the value of the claim. The learned Additional District Judge was wrong in reading the amended section 7(i) independent of section 2 of the Act which has the overriding effect on all the provisions contained in the Act. It is not denied that under section 7(i) court-fee would be leviable on the suit of the present nature according to the amount claimed but no court- fee would be leviable if the amount claimed does not exceed twenty-five thousand rupees.
Accordingly the order of the learned Additional District Judge dated 28-11-1987 passed in revision, whereby the plaintiff was directed to pay court-fee on the amount claimed, is declared to be illegal and without lawful authority. All the subsequent orders in pursuance thereof are also declared as such and in consequence thereof the plaintiff's suit shall be deemed pending for further proceedings in accordance with law. This writ petition is accordingly alloWed with no order as to costs.