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Petitioner: Mst. HAWABAI AND 6 Other VS Respondent: ABDUS SHAKOOR AND 8 OTHER
Court Name: Sindh High Court Judge(s): Durab Patel Title: Mst. HAWABAI AND 6 Other vs ABDUS SHAKOOR AND 8 OTHER Case No.: Suit No. 264 of 1966 Date of Judgment:1969-10-28 Reported As: PLD 1970 Karachi 367 Result: Suit dismissed
JUDGMENT
JUDGMENT This suit has been filed to set aside a compromise decree obtained by the defendants in Suit No. 671 of 1961 in the Court of the 2nd Civil Judge, First Class, Karachi. According to the plaint, the plaintiffs and the defendants are related through a common ancestor, Abdullah Haji Dossul deceased, and are in joint possession of immovable property. Further the plaintiffs are the legal heirs of the late Haji Abdul Latif who died on 9th October 1961 (hereafter called the deceased). On 20th March 1961, the first defendant had filed a suit, being Suit No. 671 of 1961 in the Court of the 2nd Civil Judge, First Class, Karachi for the partition of immovable property against the deceased and all the defendants in the suit before me. I shall refer to this suit as the partition suit. As the deceased had not been served with the summons in that suit, he was neither aware of nor represented in this partition suit. He was also in hospital then and the defendants had taken advantage of this situation and fraudulently filed a compromise application in the partition suit for the partition of the properties in that suit. The suit was decreed by the 2nd Civil Judge, First Class, Karachi on 22-9-1961 in terms of that compromise application, although the deceased had not signed it. Neither he nor the plaintiff were aware of this fraud, and the plaintiffs first came to know of it when they were served with the summons of Suit No. 190 of 1963 of this Court. Thereupon they filed a suit in the Court of the 4th Civil Judge, First Class, Karachi being Suit No. 206 of 1964, to challenge the compromise decree in the Partition suit. As the valuation of the properties involved in this suit (namely Suit No. 206 of 1964) exceeded the pecuniary jurisdiction of the Court, the learned Civil Judge ordered the plaint to be returned for presenta--petition in this Court and I shall refer to the plaint in Suit No. 206 of 1964 as the old plaint. Hence the suit filed by the plaintiff which has now come up for hearing before me.
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2. The defendants have filed separate written statements in which they have denied all the allegations of fraud and forgery made against them. However for the purpose of judgment it is only necessary to refer to two legal objections raised by the defendant No. 4 in his written statement. According to this written statement, as the first suit filed by the plaintiff was ordered to be presented in this Court, that very plaint should have been presented in this Court, but instead of so doing the plaintiff had filed another plaint, which was " an amended plaint'. Further this was done although permission of the Court had not been obtained for these amendments. The object of these amendments was to pay lower Court-fees, therefore according to the defendants the present suit was not maintainable. The second legal objection was that the court-fees paid were also insufficient. 3. In order to appreciate these objections, it is necessary to refer to the differences between two plaints filed by the plaintiff. Paraa. 1 to 7 are identical in both the plaints, and they contain allegations about the fraud committed by the defendants in obtaining the compromise decree fraudulently in the partition suit. But the subsequent averments in the two plaints are different. 1n para. 7 of the old plaint the plaintiffs have not only claimed that the defendants fraudulently allotted themselves the best properties under the compromise decree but they have also specified those properties. Para. 8 of the old plaint states that the compromise was illegal and of no legal effect and further states "the plaintiffs seek to set aside the same". According to para. 9, the cause of action arose when the plaintiff first learnt of this fraud. Para. 10 merely states that for purpose of court-fees and jurisdiction the suit was valued at Rs. 203 for declaration and injunction. In para. 11 the plaintiffs have prayed for a declaration that the compromise decree in the partition suit was of no legal effect and not binding on them and also for a permanent injunction restraining the defendants from enforcing or taking any advantage directly or indirectly of that compromise decree. Turning now to the plaint filed in this Court, the contents of para. 7 are similar to that of para. 7 of the old plaint, except that the plaintiffs have not specified any properties in this plaint, and they have introduced a vague averment that they are in possession of most of the properties involved in the suit. In para. 8 they have merely stated that the compromise decree in the partition suit was void and of no legal effect, but unlike para. 8 of the old plaint they have specified that their cause of action arose when they learnt of the fraudulent com--promise decree through service of the summons of this Court in the Suit No. 190 of 1963. Para. 10 merely states "that the plaint was originally filed" in the lower Court but was returned for presentation to this Court and further that " the original plaint . . . . . Has not been returned." According to para. 11, the suit is valued for pur--poses of jurisdiction at one lac but a fixed court-fee of Rs. 15 only was paid. Finally in para. 12 the plaintiffs seek only a declaration that the compromise decree in the partition suit was fraudulent and of no legal effect. 4. Para. 10 of the plaint in this Court is cleverly worded and deliberately conceals the fact of the differences between the old plaint and the plaint in this Court. In the old plaint the plaintiffs have sought both a declaration and an injunction in terms of section 42 of the Specific Relief Act, 1877. The relief of injunction implied that they were not in possession of the properties in dispute, therefore the consequential relief of an injunction was necessary. But in the new plaint in the suit before me the plaintiffs have dropped the relief of an injunction by making a vague averment that they are in possession of most of the properties. There is authority for the proposition that if the plaintiff seeks a declaration with regard to property in his possession he need only pay a fixed court-fee of Rs. 15 and not ad valorem court-fees on the value of the property in the suit. The object of the changes in the new plaint appears to be both to get round the bar of section 42 of the Specific Relief Act, 1877 and to avoid the payment of court-fees. 5. Many issues have been framed by the Court, but it is only necessary to consider the two legal issues arising out of the aforesaid objections of the 4th defendant. These issues are
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(1) Is the suit on the plaint filed maintainable (paras. 1 and 2 of the written statement of defendant No. 4)? (2) In view of paras. 3 and 4 of the written statement of defendant No. 4 are the court-fees sufficient? Mr. Raymond, who had moved an application for hearing these issues as preliminary issues conceded that only the first issue was fit to be heard under Order XIV, rule 1, C. P. C. But he sub-- mitted that as this issue had to be heard as a preliminary issue it would be convenient to hear the second issue also as a preliminary issue. Both the learned counsel also informed me that Nana, J. Had heard arguments on both these issues, therefore, I have allowed the defendant's application and heard arguments on both the issues. 6. Issue No 1.-Mr. Raymond submitted that the provisions of Order VII, rule 10, C. P. C. Read with the provisions of Order VII, rule 11, C. P. C. And Order IX, C. P. C. Impliedly barred the plaintiffs from filing a new plaint and as they had not re-presented the old plaint, the suit had to be dismissed. He also submitted that the relief sought by the plaintiffs, for a declaration fell under the provisions of section 7 (iv) (c) of the Court Fees Act, 1872 therefore ad valorem Court Fees on the value of the properties involved in the suit had to be paid. 7. Mr. Ibadat Yar Khan argued on behalf of the plaintiffs that the suit filed by him was not expressly barred by any pro--vision in the Civil Procedure Code, therefore he was entitled to file it in view of the provisions of section 9 of the C. P. C. He also submitted that the effect of an order under Order V1I, rule 10, C.P.C. Returning the plaint for presentation in the proper Court amounted to a decision which made the plaint a useless piece of paper, which became the private property of the plaintiff, therefore the plaintiff was free either to re-present it in the proper Court or to tear it up and file another suit in the proper Court, as had been done in the instant case. He also submitted that the plaintiffs were not liable for ad valorem court-fees because their case fell under Article 17-U of the Schedule of the Court Fees Act. 8. In order to appreciate the arguments of learned counsel it is necessary to consider the provisions of Order VII, rule 10, C. P. C. Order VII, rule 10, C. P. C., reads as follows :- "10 (1) The plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted. (2) On returning a plaint the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it." This rule may be compared with rule 11 of Order VII which states: 11. The plaint shall be rejected in the following cases (a) Where it does not disclose a cause of action. (b) Where the relief claimed is under-valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so. (c) Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so. (d) Where the suit appears from the statement in the plaint to be barred by any law." Both these rules are appealable and also open to revision but Mr. Raymond submitted that the express provisions made by the Legislature under rules 12 and 13 with regard to an order of the Court under rule 11 were significant. Rule 12 states: "Where a plaint is rejected the Judge shall record an order to that effect with the reasons for such order." Rule 13 states: "The rejection of the plaint on any of the grounds herein--before mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action."
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As rule 13 expressly confers a right on the plaintiff to file a fresh plaint in respect of the same cause of action, Mr. Raymond argued that the absence of a similar provision with regard to an order under rule 10 clearly implied that the right to file a fresh plaint in respect of the same cause of action was barred. 9. He then rightly pointed out that the provisions of Order VIII, C. P. C. Were not relevant, but he referred me to the provisions of Order IX which I shall briefly consider. Rule 1 of Order IX merely states that the defendant has to appear on the date fixed in the summons for his appearance. Rule 2 then prescribes that if the summons has not been served on the defen--dant in consequence of the plaintiff's failure to pay court-fees or other charges, the Court may dismiss the suit or adjourn it. Rule 3 states that when neither party to the suit is present, the Court may also dismiss the suit. Rule 4 then provides that when a suit is dismissed under rule 2 or rule 3, the plaintiffs "may subject to the law of limitation" bring a fresh suit; or he may apply for an order to set the dismissal aside. The rule further provides that if the plaintiff shows sufficient cause the Court may restore the suit. Rule 5 then provides that where the summons on the defendant has not been served and the plaintiff has failed for a period of three months to apply for fresh summons "the Court shall make an order that the suit be dismissed, and it further expressly provides that in such case the plaintiff may, subject to the law of Limitation, bring a fresh suit. Rule 6 then prescribes the procedure to be adopted by the Court when the plaintiff appears, but the defendant, though served, does not appear. Rule 7 is not relevant. Rule 8 states that when a defendant appears but the plaintiff is not present when the suit is called "the Court shall make an order that the suit be dismissed unless the defendant admits the claim or part thereof in which case the Court shall pass the decree------upon such admission and part of the claim has been admitted shall dismiss the suit------------..Rule 9 states that "when a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside------------."The rule further provides that the Court may set aside the order of dismissal if the plaintiff shows sufficient cause for his non-appearance rules 11 and 12 deal with cases where there are more plaintiffs than one or more defendants than one and prescribe the procedure to be followed where some of the plaintiff's or defendants do not appear. Rule 13 prescribes that an ex parte decree against a defendant may be set aside for sufficient cause and rule 14 prescribes that no decree shall be set aside unless notice has been served on the opposite side. 10. I have referred to the provisions of Order IX at some length to show that the Legislature has enacted an exhaustive code, covering all possible contingencies, for the disposal of suits. Whenever a suit is dismissed the Legislature has made express provision with regard to the right of filing a fresh suit on the same cause of action, and whenever a fresh suit is barred it has specified the conditions on which a restoration application can be filed. Similarly, the provisions of Order VII contain express provision with regard to a plaintiff's right to file a fresh suit when his plaint is rejected under Order VII, rule 11, C. P. C. Although the rejection of a plaint is different from its dismissal, by virtue of subsection (2) of section 2, C. P. C. An order rejecting a plaint is a decree, therefore it has the same effect as an order of dismissal. Hence the express provisions for filing a fresh suit. But when an order is passed under Order VII, rule 10, C. P. C. Returning the plaint for presentation in a proper Court, and I shall for convenience refer to such an order as an order under rule 10, the suit is not disposed of. On the contrary, it will be heard and decided by a Court competent to hear it. As the effect of an order under rule 10 is thus to ensure the proper adjudication of the plaintiff's claim and further as such an order is appealable, it is unlikely in the extreme that the Legislature would have intended that the plaintiff could file a fresh suit on the same cause of action during the pendency of an order under rule 10. In this view of the matter, the absence of an express provision in rule 10 permitting the plaintiff to file a fresh suit is deliberate and
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is a corollary of the fact that an order under rule 10 is not a decree prima facie therefore, as the plaintiffs did not file an appeal against the order returning the old plaint for presentation in this Court it would appear that they had to file the old plaint in this Court. 11. Mr. Raymond then referred me to judgments according to which a fresh vakalatnama was not necessary when, in compliance with an order under rule 10, the plaint was presented by the plaintiff in the proper Court. Thus, in the Madhura Krishnamurthy Sastri v. Yerra Ramamurthi and others (AIR 1957 Andh. Prad. 654) a plaint was returned by the District Court for presentation to the Munsif's Court. No fresh vakalatnama was filed when the plaint was presented in the Munsif's Court, therefore, the defen--dant submitted that the presentation was not valid. In repelling this argument a learned Single Judge of the Andhra Pradesh High Court observed at page 656; ---It is not as if there was any termination of the suit in which the Advocate was authorised to appear resulting in, so to say, the termination of the authority of the Advocate. That authority was evidenced by the vakalat and so long as the proceedings did not terminate by the disposal of the suit for the purposes of which it was granted, the vakalat could certainly be used in any such suit, wherever pending.--- The same view has been taken in Maharashtraya Jnan Kosh Mandal v. Bujjulal (AIR 1.923 Nag. 182). I am in respectful agreement with the judgments cited and they lead some support to Mr. Raymond's argument. 12. Another angle from which the effect of an order under rule 10 can be usefully examined is the question of court-fees. When a plaintiff presents his plaint in the proper Court and if he has to pay higher court-fees, as is generally the case, is he entitled to credit for court-fees originally paid by him? This very question came up for consideration before the Calcutta High Court in Bimala Prasad Mukerji v. Lal Moni Devi and others (AIR 1926 Cal. 355). The facts of that case were that two years after the suit had been filed it was returned for presentation to the proper Court and as the court- fees had meanwhile been raised, the plaintiff was directed to pay additional court-fees, but after adjustment of the amount already paid by him. The correctness of this order was questioned in a second appeal in the High Court, and the contention of the defendant was that the plaintiff had to pay the entire court-fees afresh. In reject--ing this argument, a Division Bench of the Calcutta High Court observed at page 356: ---On behalf of the opposite-party, the defendant, who appeared in this rule, it is contended that the plaintiff should pay the court-fee under the amended Act without any deduc--petition for the cancelled court-fee stamp on the plaint that was originally filed. We think that the learned Subordinate Judge is right in holding that the court-fee payable is that payable under the new Act after crediting the plaintiff with the court---fee originally paid. The question as to the plaintiff being entitled to be credited with the court-fee paid has been decided by Full Benches of the Madras and Bombay High Courts. No case of this Court clearly in point has been pointed out to us, but our experience is that the practice in this province is the same as in the other provinces, and we think that the rule laid down in those cases should be fol--lowed.--- I am in respectful agreement with these observations which in my opinion state the settled law, but if the plaintiff is thus entitled to the benefit of Court-fees paid by him on the plaint presented in the wrong Court, it necessarily implies that he has to present that very plaint in the proper Court. Additionally, I may observe here that the contrary view would lead to evasion of court-fees and is to be avoided on that ground. It is true that court-fees have to be determined with reference to the date of the presentation of that plaint in the proper Court and even other matters like limitation have to be determined with reference to that date. But this does not alter the fact that adjudication by the proper Court is only of the claim contained in the original plaint, therefore even though the suit presented in the proper Court has sometimes been referred to by learned Judges as a different suit, this is with regard to questions like limitation or court-fees. But as the relief, sought by
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the plaintiff is decreed or dismissed by the proper Court on the basis of the original plaint, I respectfully agree with the view of the Andhra Pradesh High Court in Sastri v. Yerra Ramamurthi and others and the Nagpur Court in Maharashtraya Jnan Kosh Mandal v. Bujjulal that the suit presented in the proper Court is a continuation of the old plaint. Prime facie this would debar the plaintiffs from filing a different plaint in this Court. 13. I shall now consider Mr. Ibadat Yar Khan's arguments. As I have observed, his first argument was that, although the plaintiffs had filed a fresh suit, they were entitled to file it under section 9 of the C. P. C. Because there was no express provision in the C. P. C. Debarring them from filing a fresh suit. Section 9 reads: ---9. The Courts shall (subject to the provisions herein mentioned) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.--- Learned counsel's argument is without merit because section 9 expressly bars suits whose cognizance is impliedly barred, and in my humble opinion the provisions of Orders VII and IX, which I have discussed, impliedly bar a fresh suit as long as the plaint ordered to be returned for presentation has not been disposed of c by a final order of the proper Court. 14. Mr. Ibadat Yar Khan's second argument was that when a plaint was ordered to be returned for presentation under rule 10 it was to be treated as a plaint which was rejected, so that it became a piece of paper which was the private property of the plaintiff, which lie could destroy if he so wishes and file a fresh plaint. Learned counsel was not able to explain why an order for presentation of the plaint in the proper Court should be treated as an order rejecting the plaint and it seems to me that the submission begs the question. However, as learned counsel stated that his argument was supported by authority I shall briefly examine the judgments cited by him. 15. Learned counsel relied on Deokinandan Pandey v. Ram Chandta Tewari (AIR 1938 All. 17). The facts of that case were that a plaint had been presented in the Munsif's Court and returned for presentation to the proper Court but before this was done the plaintiff made an application for amendment of the plaint so as to bring the relief within the jurisdiction of the Munsif's Court. The Munsif rejected this application on the ground that he had no jurisdiction to try the suit, therefore he had no authority to permit an amendment to the plaint. The plaintiff filed a revision which was heard and allowed by a Division Bench of the Allahabad High Court. In allowing an application the learned Judges observed at page 18 ---The Munsif held that as he had no jurisdiction to entertain the suit he was not competent to allow the amendment prayed for by the plaintiff. This view may be technically right but is of no practical importance if the amended plaint would bring the suit within the jurisdiction of the civil Court. Assuming that the plaint, as originally filed, disclosed a suit not cognizable by the civil Court and assuming also that the amendment would have made it cognizable by such a Court it was open to the plaintiff to amend it as soon as it was returned to him for presentation . . . . .--- The same view was taken by a learned Single Judge of the Madras High Court in P. Varanda Pillar v. P. V. Thillai Govindaraja Pillai (AIR 1931 Mad. 8) but this view was criticized by Sadashiva Ayyar, J. In I L R 41 Mad. 701 on the ground that a Court which has no jurisdiction to entertain a claim has no jurisdiction to permit an amendment of that claim. It is not necessary for me to decide which of these conflicting views is correct because even if the view taken in the judgment cited by Mr. Ibadat Yar Khan is correct, it does not help the plaintiff's case. Merely because a plaintiff is free to amend his plaint by abadoning part of the relief claimed, when he receives it for presentation to the proper Court, it does not mean that the plaint becomes his private property or that he can tamper with a document which is part of the Court record, and there is nothing what--ever in the judgments cited to support the argument of learned counsel that when a plaintiff receives a plaint for presentation to the proper Court he can file a fresh suit or a new and amended plaint in the proper court-fee as has been done in the instant case.
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16. Mr. Ibadat Yar Khan next referred to a very famous judgment of the Judicial Committee in Ramdati Das v. Sassoon & Company (AIR 1929 P C 103) in which the Judicial Committee held that the provisions of the Limitation Act are applicable to arbitration pro--ceedings. In that case the appellant and the respondent bad entered into contracts in 1913-14 for the sale of jute, and disputes arose between them out of these contracts. As the contracts were subject to an arbitration clause the respondent referred them to arbitration in July 1915 and, as the appellant did not appoint his arbitrator the respondent's arbitrator gave his award against the appellant in…
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