This writ petition arises out of the facts of a suit for declaration with consequential relief filed by' the plaintiff/Respondent No, 1 herein with regard to the land measuring 23 Kanals 5 Marlas of land bearing Khata No, 308, Khatooni No, 551 to 554 situated in Sarhali Kalan, Tehsil and District Kasur, challenging the entries of mutation of Gift No, 1463 claiming to be, the owners in possession over the suit land. During proceedings of the suit, defendants filed an application under Order 7, Rule 11 CPC contending that the petitioner has challenged the gift of the suit property through mutation of Gift No, 1463 dated 31.12.1996. It was asserted in the application that the plaintiff has also sought suit for possession of the suit property and it is a suit for cancellation of a document and the Court fee is payable under Section 7(iv) (C) of the Court fee Act. The defendants alleged in the application that value of the suit property has been mentioned as Rs, 80,000/- in the dispute& mutation therefore a Court fee of Rs, 6,000/- is liable to be affixed on the plaint. The learned trial Court after hearing the arguments of learned counsel for the parties directed the plaintiff to affix Court fee amounting to Rs, 6,000/,
2. Feeling aggrieved Mst. Sheedan plaintiff/respondent herein preferred a revision petition which came up for hearing before the District Judge, Kasur who vide, his judgment dated 16.6.2003 accepted the revision petition and set aside the order of the trial Court observing that the plaintiff filed a suit for declaration with consequential relief of possession and she has affixed the value of the suit U/S. 7(iv) (c) of the Court Fee, Act and it was the discretion of the plaintiff to determine value of the suit.
3. The learned counsel for the petitioner has contended that the plaintiff/respondent has filed the suit for cancellation of an instrument/ mutation in which the value of the property is mentioned as Rs, 80,000/- therefore, the plaint is liable to be affixed the advalorem Court fee of Rs, 6,000/- He placed reliance on the cases Rasheed Ahmad vs. Haq Nawaz and others (1982 CLC 9), Mst. Bhagan through legal heirs. Vs. Mubarik Begum etc (NLR 1984 Civil 59), Mst. Perveen Akhtar vs. Azhar Ali and 2 others (2002 CLC 1549), Muhammad Riaz Aslam vs. Muhammad Akhtar and 2 others (1993 CLC 1391) and Abdul Hamid alias MD Abdul Hamid vs. Dr. Sadeque Ali Ahmed and others).
4. On the other hand, learned counsel for the respondents, has vehemently opposed the arguments of learned counsel for the petitioner contending that a suit for declaration challenging the mutation is chargeable under Section 7 (iv) (c), (4 A) of the Court Fee Act, 1887 and it was not a suit for cancellation of the document and the Court fee is not liable on the total value of the property. He placed reliance upon the cases of Ghulam Farid vs. Mst. Pathani and 2 others (KLR 1994 Civil Cases 230-Lahore), Mst: Nasim Akhtar vs. Muhammad Sabeel and another (PLD 1991 Azad Jammu & Kashmir 66) and Pervez, Akhter and 2 others vs. Raj Muhammad (PLD 1991 Azad Jammu & Kashmir 50). Learned counsel further argued that the petitioner is not an aggrieved person, therefore a writ is not maintainable and objected that the Court fee is to secure the revenue for the benefit of the State and not to a litigant. Reliance has been placed on Siddique Khan and others. us.
Abdul Shakur Khan and another (1984 PSC 567).
4. I have heard the arguments of learned counsel for the parties and perused the record.
5. A suit for cancellation of instrument can be filed under Section 39 of the Specific Relief Act which provides as under:- "A person against whom a written instrument is void or voidable, who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, in its discretion, so adjudge it to be delivered up and cancelled." In a suit for cancellation of a document under S. 39 of the Specific Relief Act, the plaintiff must allege that if the 'instrument' challenged is left outstanding it will cause him injury.
6. From the plain reading of the provisions of Section 39 of the Specific Relief Act, it reveals that under the said Section, the suit for cancellation of instrument would lie through a declaration for cancellation of the instrument declaring it to be void-or voidable. The word 'instrument' has been defined in Chamber's English Dictionary 'a writing containing a contract a formal record. According to Black's Law Dictionary, the word `instrument' would mean 'a formal or legal document in writing such as a contract, deed, will, bond, or lease. A writing that satisfies the requisites of the negotiability. It has been further defined that anything reduced to writing a document or a formal or solemn character, a writing given as a means of affording evidence. A document of writing which gives formal expression to a legal act or agreement, for the purpose of cleating securing modifying or terminating a right.'
7. From the contents of the plaint in hand &is evident that suit for declaration for setting aside a gift mutation has been filed and according to the Chamber's Dictionary and Black's law dictionary, the mutation is not covered within the definition of instrument or document and such like suit will be covered within the provision of Section 7(iv)(c) of the Court Fee Act which provides to obtain a declaratory decree or order where the consequential relief is prayed and the Court fee shall be calculated according to the amount at which the plaint or memorandum was filed. The plaintiff shall state the amount and such as in suit in hand the plaintiff shall state the amount on which he seeks relief. It means that it is the plaintiff, who has to assess the value of the suit as laid down in the case of Ghulam Farid vs. Mst. Pathani and 2 others (KLR 1994 Civil Cases 230) in which it has been observed that as suit being for declaration of rights and relief flowing therefrom. It was not a suit for cancellation of a document and it fell under Section 7(iv) (c) of the Court Fee Act. The same principle was followed in the case of Pervez Akhtar vs. Raj Muhammad and Naseem Akhtar vs. Muhammad Sabeel and another (supra). In these cases it has been observed that in the suit for declaration with consequential relief of possession, the trial Court's verdict that such suit was covered by provisions of S.7 (iv) (c) Court Fee Act, was correct and called for no interference in revisional jurisdiction.
8.The case law laid down by learned counsel for the petitioner pertains to the registered documents, registered sale-deeds and gift-deeds which are not attracted to the facts of the present case and the petitioner is not entitled to the benefit of the same.
9. Furthermore, the revisional order cannot be challenged through a writ petition if it is not covered within the dictum laid down by the superior. Courts in the cases of Rana Mamoon Rasheed vs. Kokab Noorani Okarvi (PLD 1999 Karachi 257) and Muhammad Khan vs. Mst. Ghulam Fatima (1991 SCMR 970).
10.For the foregoing reasons, the impugned order passed by the revisional Court dated 16.6.2003 is unexceptional, call for no interference, hence this writ petition being devoid of force is dismissed.