ORDER CH. KHURSHID AHMAD, J. - The applicant through this application has prayed for refund of the court fee affixed in RFA 159 of 1983, which was dismissed by this Court in limine on 20.11.1983.
2. The facts relevant for the decision of this application are that the applicant and two others instituted a suit for declaration that they are owners of the suit land and mutations sanctioned on 29.4.1919 and 31.8.1919 were illegal, without consideration and fraudulent and as a consequential relief they prayed for possession besides any other relief. The trial court held that as the suit had been filed with a consequential relief for possession, therefore, the plaintiffs were directed to secure the statement of produce .Which was filed on 24.5.1983. The Court after hearing the parties determined the value of the suit for purposes of court fee at Rs. 1,57,9817- and directed the plaintiffs to affix a Court fee of Rs. 11,850/- on the plaint by 23.6.1983. The order was not complied with, therefore, the trial court rejected the plaint. The plaintiffs assailed this order through RFA 159/83 in this Court. It was argued that very short time of one month was given to the appellants to make up the deficiency in the Court-fee. The argument did not find favour and the appeal was dismissed in limine. Thereafter they filed CPSLA in the Hon'ble Supreme Court, which to was dismissed.
3. The petitioner then moved an application for refund of the Court-fee in the Hon'ble Supreme Court but he was informed by the Registrar vide Memo. No. C.P. 1413/83-SCJ, dated 5.12.1992 that his request for refund of the Court-fee has been forwarded to the learned Chief Justice, Lahore High Court. While office of this Court on receipt of this application of the petitioner through the Registrar, Supreme Court, proceeded to advise him to move an application on the judicial side. This was moved on 5.6.1994.
3. The learned counsel for the applicant in support of the application argued that it is the duty, of the State to provide speedy and inexpensive justice in view of Article 37(d) of the Constitution of the Islamic Republic of Pakistan. The learned counsel in this behalf has placed reliance on the judgment of the Supreme Court reported as Riaz-ud-Din v. Aqil-ur-Rehman Siddiqul (PLD 1993 S.C.
76) and particularly the following portion where the parties have compromised their dispute outside the Court and decided to withdraw the proceedings pending before the Court, thereby not burdening it (the Court) to expend its valuable time in examining the case, in hearing arguments in connection therewith, deliberating over the judgment thereon and then formally taking time to write it; manifestly defeats the above mandate of the Constitution as it penalises the party for approaching the Court, instead of assisting it to obtain inexpensive and speedy justice, it was incumbent upon the High Court to adopt the interpretation which furthered the objectives of the Constitution rather than negated them. Thus the conclusion reached by the High Court cannot be sustained."
4. We have given our anxious consideration to the arguments of the learned counsel and gone through the relevant provisions of law and the precedents. The refund of the Court fee is dealt with by section 13 of the Court Fees Act. 1870. It eaters only for the following two eventualities:-
(a) When the planitt was rejected by the lower Court on any of the grounds contained in the Civil Procedure Code and is ordered to be received; and
(b) When the appeal is accepted and the matter is remanded on any of the grounds enumerated in rule 23 of Order XL1 C.P.C.
We are conscious that besides the above specific provisions, the Court fee also could be refunded under section 151 C.P.C. We are fortified in our view by the judgments in the cases reported as Jan Muhammad v. Amolak Ram and another (AIR 193b Lahore 301) and Province of Madras v.
Audeinma (AIR 1949 Madras 895) wherein it was held that the Court can order a refund of Court- fee in the following three eventualities:-
(1) Where the Court-Fees Act applies;
(2) Where there is an excess payment by mistake; or
(3) Where, on account of the mistake of a Court a party has been compelled-to pay court fees either wholly or in part.
While in the case reported as Mayasankar v. Gonri Sankar (AIR 1954 Calcutta 256) it was held as under:- "Refund of Court fee may in a proper case be ordered under S. 151 of the Code also in other cases, for instance where the party failed for some justifiable cause to pay deficit court-fees. But where there is no such justifiable cause and the court is not satisfied that the circumstances justly call for the exercise of the inherent powers in the petitioner's favour, "the court may refuse the prayer for refund of court fees on a memorandum of appeal on the ground that the appellants could not secure adequate funds to pay-the deficit court fees".
There is also consensus of opinion that where there is unnecessary appeal filed, numbered, but withdrawn before admission the refund cannot be granted, In this behalf reference may be made to Ahmedmiya v. Fatmahu (AIR 1961 Gujrat 31).
Similarly, in Muhammad Azim Khan v. Raja Saadat AH Khan and others (AIR (33) 1946 Oudh 9) the application for refund filed under section 13 read with section 151 C.P.C, was dismissed on account of conduct of the applicant. It was held that in view of the order of dismissal of the appeal the applicant was clearly disentitled to relief as it would not be expedient in the interest of justice to pass an order of refund in his favour. The sum and substance of this judgment is that refund should be directed in order to obviate injustice.
5. The question of refund of court fees was examined by this Court in Bhola v. Sardar Muhammad (PLD 1976 Lahore 1268). The learned counsel for the petitioner has based the claim on the judgment of the Hon'ble Supreme court in the case of Riaz-ud-Din (supra) but he has failed to note that there is no semblance of facts to make the above 'rule applicable to the case in hand. While in the case of Bhola noted above the appeal was withdrawn before full hearing on merits. This Court proceeded to allow the refund of 50% of the Court fee. This is also not the case here.
6. Now coming back to the facts of the case. The conduct of the applicant is not very appreciable at any stage. It was noted in para 4 of the order in the RFA that he has challenged mutations sanctioned in 1919" by filing the suit in the year 1980 without affixing proper court fee. Above all, the Court fee was worked out and the plaintiffs were specifically directed on 24.5.1983 to make up the deficiency in the court fee within one month. But neither this order was complied with nor the" plaintiffs sought extension in time for doing the needful. The case is, therefore, covered fairly and squarely by the Oudh Court judgment in the case of Muhammad Azim Khan (supra).
7. There is also considerable unexplained delay in moving the miscellaneous application. Moreover, there were three plaintiffs while this application has been moved by Fateh Khan alone.
8. The case of the applicant is neither covered by section 13 of the Court- fees Act nor by section 151 C.P.C. The same is dismissed.