1. ' Regarding the above C.M.A. We had issued notices on 6-11-1995 upon making the following observations:-- "This is an application for leave to appeal as a pauper, the appellant having filled the suit on the original side in the regular way. The impugned order is one under Order VII, Rule 11, C.P.C. Whereby the plaint has been rejected, such order having been deemed to be a decree under the definition clause occurring in section 2, C.P.C. The fact, however, remains that an order of rejection of the plaint is not ordinarily to be designated as a decree but is only so under a deeming clause.
2. Question, therefore, arises whether ordinary court-fee as on a decree is payable in appeals of this character or court-fee may be paid as if on an order, for rejection of a plaint in any case does not operate as res judicata for a fresh suit, in the manner regular decrees do.
3. ' Issue notices to the respondents in the ordinary course, by registered post and under certificate of posting, Notice also to the Advocate-General, Sindh.
4. ' Put up on 28-11-1995."
5. ' Today before us Mr. Rao M. Shakir Naqshbandi, the learned counsel for the respondents Nos.3, 4 and 5, on the question of court-fee has cited Muhammad Akbar v. Associated Trading Company Ltd. 1988 CLC 1462, where a Division Bench of this Court comprising Aimal Mian and Abdul Rasool Agha, JJ. Concluded as below:-- "We enquired from Mr. Abdul Rauf, the learned counsel for the appellant, whether the Court Fees Act provides any distinction between a regular decree and an order which has been made a decree by virtue of the deeming proviso in section 2(2), C.P.C., his reply was in the negative. In our view, if an order rejecting the plaint under Order VII, ' Rule 11, C.P.C. Is a decree for the purpose of filing of an appeal, it must follow that it is also a decree for the purpose of the Court Fees Act and, therefore, ad valorem court-fee is to be paid unless the Court Fees Act is amended.
6. ' We, therefore, do not see any-reason to recall the above order, dated 27-10-1987, whereby the appellant was directed to pay ad valorem court-fee and the office reference was accepted."
7. ' Now as a point of distinction, between an order under Order VII, Rule 11, C.P.C., deemed a decree, and regular decrees in their pristine form, it had been maintained before the learned Judges of the Division Bench, who decided the cited precedent case, that a rejection of the plaint, occasionally, may not bar institution of a fresh suit and, therefore, it may not have been free of controversy to apply all the incidents of regular decrees to such a deemed decree as aforesaid. The argument could have been elaborated by adding that, unlike ordinary decrees, a decree for rejection of the plaint could never entail executability whereas a.Routine decree could be a decree of grant as well as dismissal, the first mentioned being usually executable. The concept of res judicata, under section 11 of the Code of Civil Procedure, of course, was implied in the argument raised. Another aspect of the matter may well be that even where a particular adjudication is deemed a decree only such results follow thereupon and none others as are in consonance with the rest of the provisions of the Code of Civil Procedure and ex facie it may appear that he decrees classified as such, through the deeming clause, would as consequence become amenable to first appeals, second appeals, etc. Which, sans the classification, may not have been the position. This, in turn, involves invocation of the legislative history of the provision, which throws up the fact that in its original form, per section 2(2), C.P.C., the term "decree" was "deemed to include the rejection of a plaint and the determination of any question within section 47 or section 144", the concept under- doing a change through the amendment introduced in virtue of the Law Reforms Ordinance, XII of 1972, substituting the reproduced clause by the words, "deemed to include the rejection of the plaint, the determination of any question within section 144 and an order under Rules 60, 98, 99, 101 or 103 of Order XXI". As a consequence, with the deletion of the expression "section 47" from section 2(2), C.P.C. a corresponding amendment in section 104 of the Code had to be made, where "an order under section 47, C.P.C." was relegated from the status of a decree and inserted accordingly.
8. Similarly, an order under Rules 60, 98, 99, 101 or 103 of Order XXI, which was neither appealable under section 104 nor under Rule 1 of Order LXIII, C.P.C., upon being raised to the status of decree, automatically became subject to first and second appeals. The foregoing thus, speaking broadly, may have been the impact of the amendment and should, essentially, have been confined to the Code of Civil Procedure, where the amendment was brought.
9. ' During the pre-amendment era, it may bear mention here that, orders covered by section 47 of the Code, even though decrees under the deeming clause in section 2(2), as it then stood, and appealable as such, did not, as per practice, involve payment of ad valorem court-fees and were subject to the same payment as was entailed under the residuary provisions in Schedule H of the Court fees Act, entailing fixed court-fee. That position has not materially altered with the promulgation of the amendment in virtue of the Law Reforms Ordinance. Correspondingly, orders passed under Rules 60, 98, 99, 101 or 103 of Order XXI, even though deemed as decrees, after 1972, Ipso facto for the purposes of appeals are not chargeable to ad valorem court-fee solely because such are deemed to be decrees now. This is all the more so when orders under Rules 34, 62, 72, 92 or 103 of Order XXI have been made or remain appealable as orders only. It thus emerges for postulation that what did not constitute decrees for the purposes of the Court Fees Act, 1870, in virtue of that Act itself or according to the universally applicable principles, may not, without unduly stretching the fiscal legislation, be made susceptible to all incidents of enhanced taxability, if later in the day or even at the outset, on account of some legal fiction such are procedurally qualified as decrees. Needles to add that a fiscal statute, much like a penal enactment, is to be construed strictly. A levy ought necessarily be founded on a clear and unambiguous taxing measure. In context, it may be pointed out that the Court Fees Act itself, wherever necessary, side by side with decrees also mentions orders having the force of decrees. Besides, in Article 1 of the First Schedule thereof, in the category "not otherwise provided for" only the concept of "memorandum of appeal" occurs and no reference to any decree is made, Court-fee being chargeable "on the amount or value of the subject-matter". On such basis, as well, the subject-matter being only rejection of the plaint, the situation defies a charge based on the claim in suit. See: Ram Prasad v. Tirloxi 1938 All. 50: Re Venkataratnam, 1941 M.
639. It, therefore, appears more logical to apply Article 12(vii) in Schedule II (Sindh) to such like cases (the phraseology thereof viz., "where it is not possible to estimate the money value of the subject-matter in dispute and which is not otherwise provided by this Act" being closer) and thus levy fixed fees, as prescribed. In this view of the matter, the cited decision, with all respect, appears either to be incorrect or rendered per incuriam. We may relatively either seek the formation of a larger bench or perhaps even disregard it but neither need necessarily detain us because, in the first place, the appeal has been filed in forma pauperis and secondly, on merits, we are not inclined to entertain it.
10. Coming to the question involved in this appeal, it is an admitted fact that three successive suits were filed and were disposed of earlier between the same or similar parties and, in fact, another such suit is currently at the appellate stage. In the three decided suits, it is claimed that, the foundation of the decrees is tainted with collusion had fraud. If that is the claim of the appellant- plaintiff, it is agreed, at all hands, that such a question, in the presence of section 12(2),C.P.C. On the statute book, can only be decided pursuant to invocation of that provision and the suit on the original side was barred.
11. ' We, therefore, dismiss the above C.M.A. As well as the appeal leaving the appellant to pursue the remedy under section 12(2), C.P.C., if so advised.