1. ABDUL RAHIM KAZI, J.--This application has been moved by the appellant under section 13 of the Court Fees Act, 1870 with the prayer that a certificate be granted for refund of the court-fices stamp paid on the memo. Of appeal.
2. Briefly the relevant facts for the purpose of this application are that the Suit No.40 of 1987 was filed by the present appellant before a learned Single Judge of this Court. In the said suit an order was passed by the Additional Registrar on 14-10-1987 calling upon the present appellant to rile affidavit of documents within three (3) weeks. The appellant, however, on 21-12-1987 made an application seeking extension of time by four (4) weeks to enable him to - file the requisite affidavit which time was granted by the Additional Registrar. However, no such affidavit was filed and the respondent No.1 then made an application under Order XI, rule 21, C.P.C. Requesting for dismissal of the appellant's suit as he had failed to comply with the aforesaid orders of the Additional Registrar.
3. The matter came up for hearing on 17-1-1988 when the learned counsel for the present appellant undertook to file documents within three (3) days and in view of the said undertaking the application moved by the respondent No.1 was dismissed as not pressed.
4. Thereafter, the case came up for hearing on 23-3-1988 for further orders as the office reported that no such affidavit of documents had till then been filed by the present appellant and in these circumstances the following order was passed:-- "None present for the plaintiff. Defendant Mohammad Munir Khan present. On 14-10-1987 the plaintiff was directed to file affidavit of documents within three weeks. He failed to file the documents or affidavit. On 17-1-1988 learned counsel for the plaintiff undertook to file documents within three days, but he has failed to file the documents. As such the suit is dimissed for non- prosecution under Order XI, Rule 21, C.P.C."
5. This order was not challenged but instead the present appellant chose to rile an application under Order 47, Rule 1, C.P.C. Read with section 151, C.P.C. Praying for review of the said orders which was dismissed by the learned, Single Judge as not maintainable mainly on the ground that the application under Order 47, rule 1, C.P.C. Would be barred by law of limitation under Article 162 of the Limitation Act. The appellant challenged the said orders in the present appeal which was allowed by a learned Division Bench of this Court vide judgment passed on 20-3-1991 and the case was remanded for further proceedings. However, the learned Division Bench while allowing the appeal has observed that the learned Single Judge could exercise inherent powers under section 151 in the present case to recall the orders of dismissal passed earlier. The result, thus, is that the application which was moved by the present appellant before the trial Court uifder Order 47, rule 1, C.P.C. Read with section 151, C.P.C. Had to be re-heard and order passed in light of the observations made by the Division Bench. The appellant has now, therefore, moved this appllication for refund of the court-fees stamp.
6. We have heard the learned counsel for the appellant and Mr Mohammad Asar Hussain, Advocate for the respondent No.1 ' Mr. Rao M. Shakir Naqashbandi, Advocate for the appellant has argued that since the application was rejected by the learned Single Judge sitting on original Side on a preliminary point and now the same has been remanded for re-hearing the appellant would be entitled to the refund of the Court-fee Stamp. The provisions of section 13 of the Court-fees Act reads as under:-- "Section13. Refund of fee paid on memorandum of appeal.--If an appeal or plaint, which h-- been rejected by the lower Court on any of the grounds mentioned in the Code of Civil Procedure, is ordered to be received or if a suit is remanded in appeal, on any of the grounds mentioned in section 351 of the same Code for a second decision by the lower Court, the Appellate Court shall grant to the appellant a certificate, authorising him to receive back from the Collector the amount of fee paid on the memorandum of appeal."
7. From the perusal of the above provisions it is obvious that in such cases where in an appeal a suit is remanded on any ground as mentioned in Order 41, rule 23, C.P.C. (original section 351, C.P.C.) the appellant would be entitled to certificate authorising him to receive back, from the Collector the amount of court-fee paid on the memorandum of appeal. The provisions of Order 41, rule 23, C.P.C.
8. Do provide that an Appellate Court may, if it thinks fit, by order remand the case for trial in case the same had been-disposed of upon a preliminary point. From the above two provisions it has to be seen in the present case, if the order challenged in the instant appeal was passed on a .Preliminary point and whether the remand is for the purpose of determination of the point in dispute. The words "preliminary point" have been considered in the case of Hoshang and others v. Dr. Eddie P.Bharucha and others PLD 1973 SC 206 wherein their Lordships have observed that a preliminary point would mean any point the decision of which avoids the necessity for the full hearing of the suit. In the above said case the Honourable Supereme Court had also taken into consideration the judgments in the cases of Malayath Veetil Ramart Nayar and others v. C. Krishnan Nambudripad and another AIR 1922 Madras 505 and Khuda Bakhsh and others v. Ata Mohammad (major) and others AIR 1942 Lahore 135. In this view of the matter the words "preliminary point" can be interpreted in context with the provisions- of Order 41, rule 23, C.P.C. To mean, any point, the decision of which avoids the necessity for the full hearing of the suit. There can be many instances of such points such as, that a suit is barred by limitation, that a Court has no jurisdiction, that on the plaintiffs evidence there is no case for the defendant to answer (in a lible suit). In short it may also be said that a preliminary point which when decided in the way in which it is in 'fact determines the result of the suit and discharges the Court from the duty of trying any of the other issues in the case. The preliminary point does not necessarily mean a point collateral to the merits of the case but would include any point whether of fact or law, the decision on which renders the decision on other. Issues unnecessary.
9. This legal position was also taken into consideration in the case of Nabi Bux v. National Bank of Pakistan PLD 1987 Karachi 24 wherein Nairnuadin, CJ. (as his Lordship then was) rejected a similar application.
10. However, in this case also the above-referred case-law was taken into consideration and the same principles were upheld, but in this case the prayer of the appellant for grant of such certificate was declined for the reasons that the suit was disposed of on merits and not on preliminary point.
11. In the present case the application moved by the present appellant was under Order 47, rule 1, C.P.C. Read with section 151, C.P.C. Which was dismissed on the preliminary point that it was barred by limitation under Article 162 of the Limitation Act but, it was not considered that the Court could have exercised inherent jurisdiction under section 151, C.P.C. In this view of the matter we are of the view that the appellant would be entitled to such certificate as prayed for. Accordingly we allow this application and direct that such certificate be issued.
12. AA./M-1586/K