PLJ 2012 Karachi 41 (DB)
[Sukkur Bench]
Present: Shahid Anwar Bajwa & Muhammad Ali Mazhar, JJ.
Moulvi SHAHZADO DREHO--Petitioner
versus
Syed KHURSHEED AHMED SHAH and 8 others--Respondents
C.P. No. D-850 of 2004, decided on 14.12.2011.
Civil Procedure Code, 1908 (V of 1908)--
----Ss. 149 & 151, O. VII, R. 11 & O. XXXIII, R. 3--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Suit for damages on account of malicious prosecution--Unable to pay Court fee--Moved an application to sue as forma pauperis--Application was dismissed by Courts below--Application u/Ss. 149 and 151, CPC was filed to trial Court to grant some time to deposit Court fee--Time was allowed to pay proper Court fee--Suit was admitted--Challenge to--Question of--Whether rejection of application to sue as forma pauperis amounts of extinguishment of cause of action on basis of which he had instituted an application--Validity--Permission to sue as forma pauperis was only conflict to seek exemption for payment of Court fee on certain conditions which were more particularly prescribed in explanation while, expression cause of action referred to facts which gave occasion to and form the foundation of the suit--Cause of action means every fact which will be necessary for plaintiff to prove if traversed in order to support his right to judgment for purpose of rejection of plaint u/O. VII, R. 11, CPC--Accrual of cause of action and payment of Court fee were two separate rudiments required to be fulfilled while instituting plaint in Court and such position was manifesting from O.VII, R. 11, CPC--Plaint can only be rejected when it does not disclose a cause of action and or relief claimed was under valued, or relief claimed was properly valued but plaint was written upon paper insufficiently stamped or where suit appeared from statement in plaint to be barred by any law--Payment of Court fee could not be linked with cause of action but both were two different mandatory requirements which were to be fulfilled prior admission of suit to regular file--Though petitioner attempted to seek exemption of Court fee under O. 33, CPC but after rejection of his application, rightly sought extension from trial Court to make-up deficiency in Court fee, so that suit might be admitted--Where the whole or any part of fee prescribed for any document by law for time being in force relating to Court fee had not been paid, Court might in its discretion, at any stage, allow the person, by whom such fee was payable to pay the whole or part, as case might be of such Court fee and upon such payment the document, since petitioner was already allowed to make-up deficiency in Court fee, suit was rightly admitted--Held: Cause of action was extinguished was misconceived and not maintainable, therefore, it was rightly rejected by trial Court but revisional Court without considering provisions of law, allowed revision application and rejected plaint on wrong nation that after dismissal of application as forma pauperis, cause of action was also vanished, which was wrong approach--Case was remanded. [Pp. 45, 46 & 47] A, B, C, D, E, F, H & K
Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R. 11--Rejection of plaint on ground of deficiency in Court fee--Validity--It is well settled principle that under O. VII, R. 11, CPC it is not lawful for Court to reject plaint on ground of deficiency in Court fee without first granting time to plaintiff to supply deficient Court fee--Plaint could not be rejected unless first amount of Court fee payable was determined by Court and at least one opportunity was afforded to plaintiff to make good deficiency. [P. 46] G
Revisional Order--
----Where revisional order suffers from legal defect, High Court was competent to set aside the same because litigant who was victim of injustice could not be left without remedy. [P. 46] I
Constitutional Jurisdiction--
----Scope of--Expeditious and efficacious remedy--Where illegally, impropriety and flagrant violation of law regarding impugned action of authority was apparent and could be established without any comprehensive inquiry into complicated, ticklish, controversial and disputed facts. [P. 46] J
2001 SCMR 1493 ref.
Petitioner in person.
Nemo for Respondent No. 1.
Mr. Imtiaz Ali Soomro, Assistant A.G. for Respondents No. 2 to 9.
Date of hearing: 11.10.2011.
Order
Muhammad Ali Mazhar, J.--By this constitutional petition, the petitioner has challenged the order dated 21.6.2004, passed by the Respondent No.9 (District & Session Judge Sukkur) in Civil Revision No.3/2004, whereby the plaint of the petitioner in FCS No.46/2000 was rejected under Order 7 Rule 11, C.P.C.
2. Succinctly, the facts as narrated in the memo. of petition are that the petitioner is social worker and convener of Sukkur Bachoo Itehad Tahreek, who had been falsely implicated in a criminal case in which he was honorably acquitted and after his acquittal, he filed a suit for damages on account of malicious prosecution and since he was unable to pay Court fee, therefore, he had moved an application under Order XXXIII, Rule 3 C.P.C to sue as forma pauperis.
3. The petitioner in person argued that application moved by him under Order XXXIII Rule 3 CPC was dismissed by the learned 1st. Senior Civil Judge, vide order dated 25.4.2001 which was assailed by him in this Court by way of Civil Revision No. 42 of 2001 which was also dismissed vide order dated 16.8.2001, thereafter, he moved a review petition but its fate was same. However, after dismissal of aforesaid proceedings, he moved an application under Sections 149 and 151 CPC and prayed to the trial Court to grant him sometime to deposit Court fee so that his suit may be admitted for further proceedings. On this application, the learned 1st. Senior Civil Judge allowed time to pay proper Court fee and thereafter the suit was admitted. He further argued that the respondents never raised any objection before the trial Court and after admitting the suit, an application was moved under Order VII, Rule 11 CPC on the ground that after rejecting the application by the Court, to sue as forma pauperis, the petitioner had no cause of action. The leaned trial Court heard the application under Order VII, Rule 11 CPC and vide order dated 15.12.2003, this application was dismissed. Against the order, the Respondent No. 1 filed a Civil Revision in the Court of District & Session Judge, Sukkur which was allowed vide order dated 21.6.2004 with the observation that since the application to sue as forma pauperis was dismissed hence there was no plaint in existence, therefore, he allowed the revision and plaint in F.C. Suit No. 46/2000 was rejected. The petitioner argued that since Court fee had already been paid and the suit was admitted, therefore, the trial Court had rightly rejected the application moved by the Respondent No. 1 under Order VII, Rule 11 CPC, but the revisional Court, instead of considering the applicable law in its right perspective, allowed the revision application and upset the order of the trial Court which seriously prejudiced the case of petitioner.
4. This matter is pending since 2004 and in spite of sending various notices to the Respondents No. 1 through different modes including courier service, T.C.S, and registered post, nobody appeared to represent him. However, the learned AAG on behalf of the official respondents and Govt. of Sindh argued that the plaint was rightly rejected by the revisional Court and since vide order dated 25.4.2001, application moved by the petitioner under Order XXXIII Rule 3 CPC was dismissed, therefore, he had no cause of action to continue his suit and mere payment of Court fee did not validate conversion from an application of forma pauperis to a regular suit.
5. So far as Order XXXIII of Civil Procedure Code is concerned, it pertains to the suits instituted by paupers and according to the explanation attached to Rule 1 of Order XXXIII, CPC, a person is a pauper when he has not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit, or, where no such fee is prescribed, when he is not entitled to property worth rupees one thousand other than his necessary wearing apparel and the subject matter of the suit. The phrase "sufficient means" refers to all kind of assets which can be realized and converted into cash for the purpose of paying Court fee. According to Rule 2, such application must contain the particulars required in regard to plaints in suits; a schedule of any movable or immovable property belongings to the applicant with the estimated value thereof, shall be annexed thereto; and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings.
6. Similarly, Order XXXIII Rule 3, C.P.C provides presentation of application in the Court so that examination of applicant under Rule 4 can take place. Under Rule 4, the powers are vested in Court to examine the applicant with respects to his pauperism as well as for the purpose of determining whether a cause of action exists or not. Likewise, Rule 5 of same order pertains to the rejection of application and lays down the circumstances in which the application for permission to sue for forma pauperis may be rejected. Under Rule 8 of Order XXXIII, C.P.C, it is provided that if the application is granted it shall be numbered, registered and shall be deemed the plaint in the suit and the suit shall proceed in all other respects as a suit instituted in the ordinary manner except that the plaintiff shall not be liable to pay any Court fee.
7. It is clear from the available record produced by the petitioner that the petitioner had submitted an application under Order XXXIII Rule 3 C.P.C along with the plaint and in the plaint, petitioner himself mentioned that he was drawing pay in the sum of Rs.6500/- at the relevant time and in the schedule attached to the plaint, he further mentioned the value of a residential house owned by him, therefore, in our view, vide order dated 25.4.2001, his application under Order XXXIII C.P.C was rightly dismissed by the trial Court.
8. Now the next question which requires consideration is whether rejection of his application to sue as forma pauperis amounts to extinguishment of cause of action on the basis of which he instituted an application. The bare bones of the matter shows that the suit was instituted for damages on account of malicious prosecution. The petitioner was acquitted in Criminal Case No. 25 of 1999, (Crime No. 47 of 1996, P.S. Site area, Sukkur under Section 13 (d) Pakistan Arms Ordinance) vide judgment dated 26.11.1999, passed by 1st. Judicial Magistrate, Sukkur. In the same acquittal order, the learned Judicial Magistrate went on to hold that "the accused/petitioner has suffered mentally, physically and financially by rotting in jail and attending the Courts right from 28.7.1996 and the case has been proved as false, therefore, it needs an action against the wrong act of complainant, therefore, accused is at liberty to file suit for damages against the complainant". After acquittal, the petitioner had filed suit for damages and since he was not in a position to pay Court fee, therefore, he attempted to seek exemption by filing an application under Order XXXIII to sue as forma pauperis.
9. The cause of action for institution of the suit and allowance or disallowance of an application under Order XXXIII, CPC, both have distinct features. The permission to sue as forma pauperis is only confined to seek exemption for the payment of Court fee on certain conditions which are more particularly prescribed in the explanation attached to Rule 1 and the conditions mentioned in Rule 5 of Order XXXIII CPC, while, the expression cause of action refers to the facts which give occasion to and form the foundation of the suit. The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to judgment for the purposes of rejection of plaint under Order VII, Rule 11 CPC. Word "cause of action" would mean a bundle of facts, which if traversed, a suit for claiming relief was required to prove for obtaining judgment. Totality of the facts must co-exist and, if anything was wanting, the claim would be incompetent. One part could be included in the whole, but the whole could never be equal to the part. Not only the party seeking relief should have a cause of action when the transaction or the alleged act was done, but also at the time of the institution of the claim. Suitor is required to show that not only a right had been infringed in a manner to entitle him to a relief, but also that when he approached the Court, the right to seek the relief, was in existence. Cause of action had no relation to the defence, that could be set up nor it depended upon the character of the relief prayed. Reference can be made to a judgment reported in 2010 CLC 1968 (Badal and another vs. Mansoor Ahmed Awan) authored by one of us (Muhammad Ali Mazhar-J).
10. It is clear beyond any shadow of doubt that the accrual of cause of action and payment of Court fee are two separate rudiments required to be fulfilled while instituting plaint in the Court and this position is also manifesting from Order VII, Rule 1, CPC which lays down what particulars are to be contained in the plaint including the facts constituting the cause of action, statement of value of the subject matter of the suit for the purposes of jurisdiction and Court fee. Even under Order VII, Rule 11, C.P.C, the plaint can only be rejected when it does not disclose a cause of action and or the relief claimed is under valued, or the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped or where the suit appears from the statement in the plaint to be barred by any law, therefore, in our view, it is undoubtedly clear that the payment of Court fee cannot be linked with cause of action but both are two different mandatory requirements which are to be fulfilled prior admission of suit to regular file.
11. In the present case, though the petitioner attempted to seek exemption of Court fee under Order XXXIII CPC but after rejection of his application, he rightly sought extension from the trial Court to makeup deficiency in the Court fee so that his suit may be admitted. It is clearly provided under Section 149, CPC that where the whole or any part of fee prescribed for any document by the law for the time being in force relating to the Court fees has not been paid, the Court may in its discretion, at any stage, allow the person, by whom such fee is payable to pay the whole or part, as the case may be, of such Court fee and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance. Since the petitioner was already allowed to make up deficiency in the Court fee, therefore, the suit was rightly admitted. It is well settled principle that under Order VII, Rule 11, CPC it is not lawful for the Court to reject the plaint on the ground of deficiency in the Court fee without first granting time to the plaintiff to supply the deficient Court fee. The plaint cannot be rejected unless first the amount of Court fee payable is determined by the Court and at least one opportunity is afforded to the plaintiff to make good the deficiency. In this case, the plaint was rightly admitted and an application moved by the Respondent No. 1 under Order VII, Rule 11, C.P.C on the ground that since the application to sue as forma pauperis is dismissed, therefore the cause of action was also extinguished was misconceived and not maintainable, therefore, it was rightly rejected by the trial Court but the revisional Court without considering the relevant provisions of law, allowed the revision application and rejected the plaint on the wrong notion that after dismissal of application as forma pauperis, the cause of action was also vanished, which was a wrong approach.
12. Where the revisional order suffers from the legal defect, this Court is competent to set aside the same because a litigant who is victim of injustice cannot be left without remedy. The constitutional jurisdiction is primarily meant to provide expeditious and efficacious remedy in a case where illegality, impropriety and flagrant violation of law regarding impugned action of the authority is apparent and can be established without any comprehensive inquiry into complicated, ticklish, controversial and disputed facts. Reference can be made to 2001 SCMR 1493. The object of the writs is to curb excess of jurisdiction, to keep inferior Courts and tribunals within their bonds, the writ jurisdiction is appropriate only in all such cases where "substantial right" of a person has been so far invaded as to prejudicially affect him if the proceeding or judgment remains un-revised.
13. The upshot of this discussion is that the impugned order dated 21.06.2004 passed by the learned District & Sessions Judge, Sukkur is set aside and F.C.S No.46/2000 is restored to its original position with the direction to the learned trial Court to decide the suit on merits in, accordance with National Judicial Policy after notice to the parties. Petition stands disposed of in above terms.
(R.A.) Petition disposed of
[Sukkur Bench]
Present: Shahid Anwar Bajwa & Muhammad Ali Mazhar, JJ.
Moulvi SHAHZADO DREHO--Petitioner
versus
Syed KHURSHEED AHMED SHAH and 8 others--Respondents
C.P. No. D-850 of 2004, decided on 14.12.2011.
Civil Procedure Code, 1908 (V of 1908)--
----Ss. 149 & 151, O. VII, R. 11 & O. XXXIII, R. 3--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Suit for damages on account of malicious prosecution--Unable to pay Court fee--Moved an application to sue as forma pauperis--Application was dismissed by Courts below--Application u/Ss. 149 and 151, CPC was filed to trial Court to grant some time to deposit Court fee--Time was allowed to pay proper Court fee--Suit was admitted--Challenge to--Question of--Whether rejection of application to sue as forma pauperis amounts of extinguishment of cause of action on basis of which he had instituted an application--Validity--Permission to sue as forma pauperis was only conflict to seek exemption for payment of Court fee on certain conditions which were more particularly prescribed in explanation while, expression cause of action referred to facts which gave occasion to and form the foundation of the suit--Cause of action means every fact which will be necessary for plaintiff to prove if traversed in order to support his right to judgment for purpose of rejection of plaint u/O. VII, R. 11, CPC--Accrual of cause of action and payment of Court fee were two separate rudiments required to be fulfilled while instituting plaint in Court and such position was manifesting from O.VII, R. 11, CPC--Plaint can only be rejected when it does not disclose a cause of action and or relief claimed was under valued, or relief claimed was properly valued but plaint was written upon paper insufficiently stamped or where suit appeared from statement in plaint to be barred by any law--Payment of Court fee could not be linked with cause of action but both were two different mandatory requirements which were to be fulfilled prior admission of suit to regular file--Though petitioner attempted to seek exemption of Court fee under O. 33, CPC but after rejection of his application, rightly sought extension from trial Court to make-up deficiency in Court fee, so that suit might be admitted--Where the whole or any part of fee prescribed for any document by law for time being in force relating to Court fee had not been paid, Court might in its discretion, at any stage, allow the person, by whom such fee was payable to pay the whole or part, as case might be of such Court fee and upon such payment the document, since petitioner was already allowed to make-up deficiency in Court fee, suit was rightly admitted--Held: Cause of action was extinguished was misconceived and not maintainable, therefore, it was rightly rejected by trial Court but revisional Court without considering provisions of law, allowed revision application and rejected plaint on wrong nation that after dismissal of application as forma pauperis, cause of action was also vanished, which was wrong approach--Case was remanded. [Pp. 45, 46 & 47] A, B, C, D, E, F, H & K
Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R. 11--Rejection of plaint on ground of deficiency in Court fee--Validity--It is well settled principle that under O. VII, R. 11, CPC it is not lawful for Court to reject plaint on ground of deficiency in Court fee without first granting time to plaintiff to supply deficient Court fee--Plaint could not be rejected unless first amount of Court fee payable was determined by Court and at least one opportunity was afforded to plaintiff to make good deficiency. [P. 46] G
Revisional Order--
----Where revisional order suffers from legal defect, High Court was competent to set aside the same because litigant who was victim of injustice could not be left without remedy. [P. 46] I
Constitutional Jurisdiction--
----Scope of--Expeditious and efficacious remedy--Where illegally, impropriety and flagrant violation of law regarding impugned action of authority was apparent and could be established without any comprehensive inquiry into complicated, ticklish, controversial and disputed facts. [P. 46] J
2001 SCMR 1493 ref.
Petitioner in person.
Nemo for Respondent No. 1.
Mr. Imtiaz Ali Soomro, Assistant A.G. for Respondents No. 2 to 9.
Date of hearing: 11.10.2011.
Order
Muhammad Ali Mazhar, J.--By this constitutional petition, the petitioner has challenged the order dated 21.6.2004, passed by the Respondent No.9 (District & Session Judge Sukkur) in Civil Revision No.3/2004, whereby the plaint of the petitioner in FCS No.46/2000 was rejected under Order 7 Rule 11, C.P.C.
2. Succinctly, the facts as narrated in the memo. of petition are that the petitioner is social worker and convener of Sukkur Bachoo Itehad Tahreek, who had been falsely implicated in a criminal case in which he was honorably acquitted and after his acquittal, he filed a suit for damages on account of malicious prosecution and since he was unable to pay Court fee, therefore, he had moved an application under Order XXXIII, Rule 3 C.P.C to sue as forma pauperis.
3. The petitioner in person argued that application moved by him under Order XXXIII Rule 3 CPC was dismissed by the learned 1st. Senior Civil Judge, vide order dated 25.4.2001 which was assailed by him in this Court by way of Civil Revision No. 42 of 2001 which was also dismissed vide order dated 16.8.2001, thereafter, he moved a review petition but its fate was same. However, after dismissal of aforesaid proceedings, he moved an application under Sections 149 and 151 CPC and prayed to the trial Court to grant him sometime to deposit Court fee so that his suit may be admitted for further proceedings. On this application, the learned 1st. Senior Civil Judge allowed time to pay proper Court fee and thereafter the suit was admitted. He further argued that the respondents never raised any objection before the trial Court and after admitting the suit, an application was moved under Order VII, Rule 11 CPC on the ground that after rejecting the application by the Court, to sue as forma pauperis, the petitioner had no cause of action. The leaned trial Court heard the application under Order VII, Rule 11 CPC and vide order dated 15.12.2003, this application was dismissed. Against the order, the Respondent No. 1 filed a Civil Revision in the Court of District & Session Judge, Sukkur which was allowed vide order dated 21.6.2004 with the observation that since the application to sue as forma pauperis was dismissed hence there was no plaint in existence, therefore, he allowed the revision and plaint in F.C. Suit No. 46/2000 was rejected. The petitioner argued that since Court fee had already been paid and the suit was admitted, therefore, the trial Court had rightly rejected the application moved by the Respondent No. 1 under Order VII, Rule 11 CPC, but the revisional Court, instead of considering the applicable law in its right perspective, allowed the revision application and upset the order of the trial Court which seriously prejudiced the case of petitioner.
4. This matter is pending since 2004 and in spite of sending various notices to the Respondents No. 1 through different modes including courier service, T.C.S, and registered post, nobody appeared to represent him. However, the learned AAG on behalf of the official respondents and Govt. of Sindh argued that the plaint was rightly rejected by the revisional Court and since vide order dated 25.4.2001, application moved by the petitioner under Order XXXIII Rule 3 CPC was dismissed, therefore, he had no cause of action to continue his suit and mere payment of Court fee did not validate conversion from an application of forma pauperis to a regular suit.
5. So far as Order XXXIII of Civil Procedure Code is concerned, it pertains to the suits instituted by paupers and according to the explanation attached to Rule 1 of Order XXXIII, CPC, a person is a pauper when he has not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit, or, where no such fee is prescribed, when he is not entitled to property worth rupees one thousand other than his necessary wearing apparel and the subject matter of the suit. The phrase "sufficient means" refers to all kind of assets which can be realized and converted into cash for the purpose of paying Court fee. According to Rule 2, such application must contain the particulars required in regard to plaints in suits; a schedule of any movable or immovable property belongings to the applicant with the estimated value thereof, shall be annexed thereto; and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings.
6. Similarly, Order XXXIII Rule 3, C.P.C provides presentation of application in the Court so that examination of applicant under Rule 4 can take place. Under Rule 4, the powers are vested in Court to examine the applicant with respects to his pauperism as well as for the purpose of determining whether a cause of action exists or not. Likewise, Rule 5 of same order pertains to the rejection of application and lays down the circumstances in which the application for permission to sue for forma pauperis may be rejected. Under Rule 8 of Order XXXIII, C.P.C, it is provided that if the application is granted it shall be numbered, registered and shall be deemed the plaint in the suit and the suit shall proceed in all other respects as a suit instituted in the ordinary manner except that the plaintiff shall not be liable to pay any Court fee.
7. It is clear from the available record produced by the petitioner that the petitioner had submitted an application under Order XXXIII Rule 3 C.P.C along with the plaint and in the plaint, petitioner himself mentioned that he was drawing pay in the sum of Rs.6500/- at the relevant time and in the schedule attached to the plaint, he further mentioned the value of a residential house owned by him, therefore, in our view, vide order dated 25.4.2001, his application under Order XXXIII C.P.C was rightly dismissed by the trial Court.
8. Now the next question which requires consideration is whether rejection of his application to sue as forma pauperis amounts to extinguishment of cause of action on the basis of which he instituted an application. The bare bones of the matter shows that the suit was instituted for damages on account of malicious prosecution. The petitioner was acquitted in Criminal Case No. 25 of 1999, (Crime No. 47 of 1996, P.S. Site area, Sukkur under Section 13 (d) Pakistan Arms Ordinance) vide judgment dated 26.11.1999, passed by 1st. Judicial Magistrate, Sukkur. In the same acquittal order, the learned Judicial Magistrate went on to hold that "the accused/petitioner has suffered mentally, physically and financially by rotting in jail and attending the Courts right from 28.7.1996 and the case has been proved as false, therefore, it needs an action against the wrong act of complainant, therefore, accused is at liberty to file suit for damages against the complainant". After acquittal, the petitioner had filed suit for damages and since he was not in a position to pay Court fee, therefore, he attempted to seek exemption by filing an application under Order XXXIII to sue as forma pauperis.
9. The cause of action for institution of the suit and allowance or disallowance of an application under Order XXXIII, CPC, both have distinct features. The permission to sue as forma pauperis is only confined to seek exemption for the payment of Court fee on certain conditions which are more particularly prescribed in the explanation attached to Rule 1 and the conditions mentioned in Rule 5 of Order XXXIII CPC, while, the expression cause of action refers to the facts which give occasion to and form the foundation of the suit. The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to judgment for the purposes of rejection of plaint under Order VII, Rule 11 CPC. Word "cause of action" would mean a bundle of facts, which if traversed, a suit for claiming relief was required to prove for obtaining judgment. Totality of the facts must co-exist and, if anything was wanting, the claim would be incompetent. One part could be included in the whole, but the whole could never be equal to the part. Not only the party seeking relief should have a cause of action when the transaction or the alleged act was done, but also at the time of the institution of the claim. Suitor is required to show that not only a right had been infringed in a manner to entitle him to a relief, but also that when he approached the Court, the right to seek the relief, was in existence. Cause of action had no relation to the defence, that could be set up nor it depended upon the character of the relief prayed. Reference can be made to a judgment reported in 2010 CLC 1968 (Badal and another vs. Mansoor Ahmed Awan) authored by one of us (Muhammad Ali Mazhar-J).
10. It is clear beyond any shadow of doubt that the accrual of cause of action and payment of Court fee are two separate rudiments required to be fulfilled while instituting plaint in the Court and this position is also manifesting from Order VII, Rule 1, CPC which lays down what particulars are to be contained in the plaint including the facts constituting the cause of action, statement of value of the subject matter of the suit for the purposes of jurisdiction and Court fee. Even under Order VII, Rule 11, C.P.C, the plaint can only be rejected when it does not disclose a cause of action and or the relief claimed is under valued, or the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped or where the suit appears from the statement in the plaint to be barred by any law, therefore, in our view, it is undoubtedly clear that the payment of Court fee cannot be linked with cause of action but both are two different mandatory requirements which are to be fulfilled prior admission of suit to regular file.
11. In the present case, though the petitioner attempted to seek exemption of Court fee under Order XXXIII CPC but after rejection of his application, he rightly sought extension from the trial Court to makeup deficiency in the Court fee so that his suit may be admitted. It is clearly provided under Section 149, CPC that where the whole or any part of fee prescribed for any document by the law for the time being in force relating to the Court fees has not been paid, the Court may in its discretion, at any stage, allow the person, by whom such fee is payable to pay the whole or part, as the case may be, of such Court fee and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance. Since the petitioner was already allowed to make up deficiency in the Court fee, therefore, the suit was rightly admitted. It is well settled principle that under Order VII, Rule 11, CPC it is not lawful for the Court to reject the plaint on the ground of deficiency in the Court fee without first granting time to the plaintiff to supply the deficient Court fee. The plaint cannot be rejected unless first the amount of Court fee payable is determined by the Court and at least one opportunity is afforded to the plaintiff to make good the deficiency. In this case, the plaint was rightly admitted and an application moved by the Respondent No. 1 under Order VII, Rule 11, C.P.C on the ground that since the application to sue as forma pauperis is dismissed, therefore the cause of action was also extinguished was misconceived and not maintainable, therefore, it was rightly rejected by the trial Court but the revisional Court without considering the relevant provisions of law, allowed the revision application and rejected the plaint on the wrong notion that after dismissal of application as forma pauperis, the cause of action was also vanished, which was a wrong approach.
12. Where the revisional order suffers from the legal defect, this Court is competent to set aside the same because a litigant who is victim of injustice cannot be left without remedy. The constitutional jurisdiction is primarily meant to provide expeditious and efficacious remedy in a case where illegality, impropriety and flagrant violation of law regarding impugned action of the authority is apparent and can be established without any comprehensive inquiry into complicated, ticklish, controversial and disputed facts. Reference can be made to 2001 SCMR 1493. The object of the writs is to curb excess of jurisdiction, to keep inferior Courts and tribunals within their bonds, the writ jurisdiction is appropriate only in all such cases where "substantial right" of a person has been so far invaded as to prejudicially affect him if the proceeding or judgment remains un-revised.
13. The upshot of this discussion is that the impugned order dated 21.06.2004 passed by the learned District & Sessions Judge, Sukkur is set aside and F.C.S No.46/2000 is restored to its original position with the direction to the learned trial Court to decide the suit on merits in, accordance with National Judicial Policy after notice to the parties. Petition stands disposed of in above terms.
(R.A.) Petition disposed of
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