' WAHID BUX BROHI, J.--- This is an application for refund of court-fees paid by appellant on the memo. Of appeal.
2. The circumstances leading to this application, briefly stated, are that judgment and decree, dated 14-124999 were passed by the learned Banking Court No,1, Karachi in Suit No,7 of 1999 filed by respondents herein, decreeing the suit. The appellants who were defendants in the suit impugned the said judgment/decree in this Court and filed 1st appeal after making payment of court-fees of Rs,15,000 by way of court-fee stamps as usual. Certain objections were raised by the office, the appellants failed to comply with the same, the matter was, therefore, fixed for non-prosecution in the Court. On 16-5-2000, learned counsel was in particular called upon to satisfy the Court on the point of ,limitation and the matter was adjourned to 17-5-2000. On the said date learned counsel for appellant filed an application under section 5 of Limitation Act which was ordered to be numbered and it was further directed that notice be issued to the respondents. Thereafter, the matter remained dormant for over a period of three years. On 23-5-2003, however, an application was moved by appellant seeking permission to withdraw the appeal on the ground that the parties had settled their disputes out of the Court. The said request was allowed in absence of respondents and the appeal was dismissed as withdrawn. The instant application has, consequently, been made with a prayer that the court-fees paid by the appellant, on the memo. Of appeal be refunded.
3. We have heard Mr. Khalil Ahmed Siddiqi learned counsel for appellant and Mr. Sarwar Khan learned Additional Advocate-General, Sindh.
4. Learned counsel for appellant placed reliance on Sh. Riaz-udDin v. Aqil-ur-Rehman Siddiqui PLD 1993 SC 76 which has been followed by this Court while passing an order on the same point in Suit No,737 of 2002. Learned counsel for appellant contended that in the cited case the matter was settled out of Court and appeal was withdraw and the Honourable Supreme Court, on interpreting Article 2-A of the. Constitution of Pakistan allowed refund of court-fees. Mr. Sarwar Khan learned Additional Advocate-General submitted that the court-fees is not to be refunded only in cases where the Court applied its mind while passing a decisive order. We have considered these contentions carefully.
5. Admittedly, the matter remained dormant for a period of three years after, application for condonation of delay under section 5 of the Limitation Act was filed. No order was passed in that behalf and the application was still pending for decision. On the crucial date when the appeal was dismissed as withdrawn the respondents were also not present. It was brought to the notice of the Court that the matter had been settled out of Court.
Ultimately, no order was passed on merits of the case but only withdrawal was allowed in consequence of the application made on that day. Until then no order was passed by the Court affecting the rights of parties.
6. The facts of the case decided by Honourable Supreme Court are almost similar. The observation of the Honourable Supreme Court in the said case are as under:-- ' "Under Article 2-A of the Constitution of 1973 the State was obliged to further the ends of social justice which, inter alia, obligate it to 'ensure inexpensive and expeditious justice' (as embodied in Article 37(d) of the Constitution). To require a party to pay court-fee in a proceeding where the parties had 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 in formally taking time to write it; manifestly would defeat the mandate of Constitution as it penalizes the party for approaching the Court, instead of assisting it to obtain inexpensive and speedy justice. It was incumbent upon the Court to adopt the interpretation which furthered the objectives of the Constitution rather than negated them."
7. Respectfully following the principle laid down by the Honourable Supreme. Court, as per observations quoted above, we are convinced that appellants herein are entitled to refund of the court-fees. Irrespective of the fact that the provisions of section 13 of the Court Fees Act are attracted or not. As a result, we allow this application and direct that certificate be issued for refund of court-fees as prayed.