GUL ZARIN KIANI, J.--Civil revision from an order of the trial Court requiring payment of Court-fee from the plaintiffs in a suit for specific performance, in terms off section 7(x) of he Court-Fees Act, 1870, was shown to raise a point of nicety and of first impression. However, upon its closer examination, the point is found to be without any merit.
2. Relevant facts giving rise to the revision petition, briefly stated are Ghulam Muhammad owned 27 Kanals, I6 Marlas of land situate at Mauza Bangla Kambohan of Tehsil and District Kasur. On 6-3- 1992, he agreed for its sale to the plaintiffs for a sum of Rs. 3,75,000. He received Rs.75,000 in advance by leaving a balance of rupees three lacs payable on the date and at the time of finalization of the sale. As the sale was not completed by the defendant-owner, plaintiffs instituted a civil suit for it, in the Civil Court at Kasur on 23-8-1992. Valuation of the suit for the purpose of Court-fee and jurisdiction was fixed at Rs. 3,75,000 in para 10 of the plaint; it being the amount of sale-consideration. However, no Court-fee was paid upon the plaint. An exemption from its payability was claimed in the plaint.
3. Alongwith the plaint of the suit, an application for temporary injunction for maintaining status quo regarding the land-in-dispute-as also presented to the trial Court. On the very first date of hearing i.e. On 23-8-1992, the trial Court required the plaintiffs to pay deficit Court-fee computed on the sale- consideration, till 30 August, 1992. Instead of meeting the demand for payment of required amount of Court-fee, plaintiffs assailed the direction in revision before this Court on the sole ground that demand of Court-fee on documents filed in Courts of justice was un-islamic and, therefore, it could not be enforced.
Apart from a reference to the bare text of Enforcement of Shari-ah Act 1991 (Act X of 1991), learned counsel did not much assist on the point touching jurisdiction of this Court, over the subject-matter of the dispute. Court-Fees Act, 1870, is a legislative fiscal measure of some antiquity to secure revenue for the State in return for the administration of justice in the Courts. Upon removal of time embargo in the definition of 'law' in clause (c) of Article 203-B of the Constitution, Federal Shariat Court, in case of Dr. Mahmood-ur-Rahman Faisal vs. Secretary, Ministry of Law, Justice and Parliamentary Affairs, Government of Pakistan, Islamabad and 6 others PLD 1992 Federal Shariat Court 195, examined the charging provisions in the Court-Fees Act on the touch stone of Islamic Injunctions and found them repugnant to Shari'ah. The Court found that no Court-fee was chargeable for administering justice in Islamic polity and observed that declaration of law by it shall take effect from 31st December, 1991. An appeal has been filed from the decision of the Federal Shariat Court before the Supreme Court of Pakistan. Therefore, the operation of the aforesaid judgment is suspended till the final decision of the appeal by the Supreme Court.
4. Learned counsel, therefore, did not rely on the declaration of law by the Federal Shariat Court, but pressed Enforcement of Shariah Act, 1991, to his help and submitted that Shari'ah being the supreme law of the land, every Court, Tribunal and Authority was "bound to act in accordance with it and implement its provisions, any existing Statute or law notwithstanding. Learned counsel argued that jurisdiction to examine, whether any law was contrary to Islamic Injunctions and if so strike it down vested concurrently in all the Courts including Federal Shariat Court. Learned counsel submitted with some earnestness that this being a point of first impression so far, may be referred to a larger Bench for an authoritative pronouncement on it. I, was tempted by his this argument.
However, I carefully pondered over the issue in the light of provisions of Chapter 3-A of the Constitution of Islamic Republic of Pakistan. Its provisions were overriding. Under this Chapter, a Constitutional Court with the nomenclature of Federal Shariat Court was established to examine and decide, whether any law was repugnant to Islamic Injunctions. Law was defined in clause(c) of Article 203- B of the Constitution. Among others, for a period of ten years from the commencement of the Chapter 3A any fiscal law or law relating to levy and collection of taxes and fees were excluded from the purview of Federal Shariat Curt. Period of ten years has-since elapsed. It was on this view that Court-Fees Act fell for scrutiny before the Federal Shariat Court with the result noticed above. Article 203-G was a barring jurisdiction provision in the Constitution itself. It says that save as provided in Article 203-F (which deals with appeal to Supreme Court), no Court or Tribunal, including the Supreme Court and a High Court shall entertain any proceedings or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of the Court, "Court" is defined in clause (b) of Article 203-B of the Constitution. In my thinking, only Federal Shariat Court was empowered by the Constitution to examine and decide, as to whether any law was or was not contrary to Injunctions of Islam. Jurisdiction to exercise that power in the existing state of law was denied to other Courts. Therefore Jurisdiction conferred upon Federal Shariat Court subject to an appeal from its decision to Supreme Court was exclusive and not concurrent with other Courts. It was thought necessary to avoid chads of judicial opinion which otherwise would have been inevitable.
5. High Court is a creature of the Constitution. It is bound to protect, preserve and uphold the Constitution. Article 175 of the Constitution ordains that no "Court" shall have any jurisdiction, save as is or may be conferred on it by the Constitution or by or under any law. Constitution is fundamental document and is supreme law. Subordinate legislation could not detract from fullness of its operation and pervasive character. When the Constitution specifically confided jurisdiction in Federal Shariat Court and barfed other Courts from exercising and sharing similar jurisdiction with it, in my view, this Court must not embark on the inquiry. Act X of 1991, therefore, does not empower this Court to bypass the express and clear provisions in Chapter 3-A of the Constitution of Pakistan, more particularly, the barring provisions in Article 203-G. As far the amount of Court' fee payable upon the plaint in the suit for specific performance, there is neither dispute nor doubt. Section 7, clause (x) of Court-Fees Act provides that in a suit for specific performance, Court-fee is payable on the agreed consideration of the sale. The plaintiffs were in clear default of their obligation and the trial Court rightly noticed this omission and correctly called upon them to fulfil their legal duty by a specified time. Civil revision is, therefore, without merits and is dismissed in limine.