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P L D 1958 (W. P.) Karachi 465

 

Before Munshi, J

 

ALI HUSSAIN‑Applicant

 

Versus

 

THE KARACHI MUNICIPAL CORPORATION

‑Respondent

 

Civil Revision No. 215 of 1957, decided on 28th March 1958.

 

 

Sultan Ahmad for Applicant.

 

K. A. Ghani for Fazle Haque for Respondent.

 

ORDER

 

This is a revision application under section 115, C. P. C. from the order passed by the District Judge, Karachi, returning the plaint filed by the applicant, for presentation to the proper Court.

 

A preliminary objection has been raised to the effect that the impugned order which has been passed under Order VII rule 10, C. P. C. being appealable, no revision application lies against it.

 

I have heard the learned counsel on either side on this preliminary point, and I am satisfied that the objection deserves to prevail.

 

The party which invokes revisional jurisdiction of a Court has to satisfy that the order sought to be revised has decided the case and that it is not appealable.

 

In this case both the requirements are unsatisfied. The impugned order, according to me has not decided the case. What the learned District Judge has done to return the plaint for presentation to the proper Court, and it cannot be reason ably contended, that in doing so, he has in effect decided the case. Indeed he has held that he has no jurisdiction to decide it: The plaint has been left intact and the same can be filed in the Court, having jurisdiction to entertain it. The learned Judge has merely referred him to that Court.

 

Mr. Hafiz Sultan’s contention is that his suit being under section 9 of the Specific Relief Act, no appeal lies against the order dismissing the same. Even, so, the question is, has the suit been dismissed ? As discussed above the learned Judge has not dismissed it. As to the second requirement therefore a reference to Order XLIII rule 1 (a), C. P. C. will be sufficient to show that an order under Order VII rule 10, C. P. C. is appealable.

 

It is thus clear that the revision application deserves to be dismissed on this preliminary point. But, even otherwise, on merits too the application must fail. Mr. Hafiz Sultan’s conten tion is that sub‑clause (e) of clause 11 of section 7 of the Court Fees Act would apply to his plaint and hence according to him the Court‑fee to be levied should be on half of the amount of rent payable for the year next before the date of presenting the plaint, and since the annual rental value of the building has been fixed at Rs. 12,000 he has paid Court‑fee on Rs. 6,000. This contention of Mr. Hafiz Sultan is obviously untenable. Subclause (e) of clause 11 of section 7 of the Court‑fees Act relates to suits between landlords and tenants whereas S. 9 of the Specific Relief Act under which this suit has been filed, does not relate to suits between landlords and tenant. A suit under S. 9 of the Specific Relief Act, is not a suit between a landlord and a tenant. In a case of this kind all that a plaintiff has to prove is that he was in possession of the immovable property and that he has been wrongfully dispossessed from that property. Courts have not to go into the question of any relation ship between the parties. It is merely a suits for the recovery of occupancy of the house from which the applicant has been ejected and consequently the sole question to be decided is that of possession. The proper sub‑clause applicable to the suits of this kind would therefore be 5 (e) of section 7. This subclause read with Article 2 in Schedule (1) of the Court Fees Act relates to advalorem fees. Article 2 relates to the plaint in a suit for POs‑ f session under section 9 of the Specific Relief Act, and it provides that the fee has to be calculated on the basis of half of the market value of the house in question. There is an order of my brother Inamullah, J. passed in March 1957, in connection with this very building showing that the house is worth rupees eight laks, and that being so, the Court‑fee on the amount of four laks rupees should be paid. ‘It is therefore clear that the order of the learned District Judge, returning the plaint for presentation to the proper Court, is a sound order, and calls for no interference. The application therefore stands dismissed with costs.

 

K. M. A. Application dismissed.

 

 

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