| Citation(s) |
|---|
| 1973 SLG 3195 = 1973 SLD 3195 = 1973 PLD 206 |
Supreme Court of Pakistan
Civil Appeal No. K-21 of 1970, decided on 1st March 1973.
Presented By: Hamoodur Rahman, C. J., Muhammad Yaqub Ali, Salahuddin Ahmed anal Anwarul Haq, JJ
The refund of the court-fee under section 13 of the Court Feed Act is distinct from. and independent of, the award of costs on the final conclusion of the suit. Malayath Veetil Rama Nayar and other v. C. Krishnan Namsbudripad and another A I R Lal. M. S. Ashfaque Hussain. Advocate instructed by Yousaf Rafi, Advocate-on-Record for Appellants.
Respondents Nos. 1 to 4: Ex parts. Ali Ahmad Fazeel, Advocate instructed by Shafiq Ahmad, Advocate-on-Record for
Respondent No. 5. A H. Memon, Advocate-General (Sind) Karachi for Respon dent No. 6.
Civil Appeal No. K-21 of 1970, decided on 1st March 1973.
Presented By: Hamoodur Rahman, C. J., Muhammad Yaqub Ali, Salahuddin Ahmed anal Anwarul Haq, JJ
The refund of the court-fee under section 13 of the Court Feed Act is distinct from. and independent of, the award of costs on the final conclusion of the suit. Malayath Veetil Rama Nayar and other v. C. Krishnan Namsbudripad and another A I R Lal. M. S. Ashfaque Hussain. Advocate instructed by Yousaf Rafi, Advocate-on-Record for Appellants.
Respondents Nos. 1 to 4: Ex parts. Ali Ahmad Fazeel, Advocate instructed by Shafiq Ahmad, Advocate-on-Record for
Respondent No. 5. A H. Memon, Advocate-General (Sind) Karachi for Respon dent No. 6.
HOSHANG AND OTHERS-Appellants
VERSUS
DR. EDDIE P. BHARUCHA AND OTHERS-Respondents
Law: Court Fee Act, 1870
Section: 13
Law: Civil Procedure Code (V of 1908)
Section: O. XLI, r. 23
(On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, dated: 17-8-1966 passed in L. P. A. No. 167 of 1966). Court Fees Act (VII of 1870), S. 13 and Civil Procedure Code (V of 1908), O. XLI, r. 23---Remand of case by appellate Court Refund of court fee paid on memorandum of appeal-Trial Court disposing of suit as not maintainable upon a "preliminary point" without going into merits of case and without deciding other its issues Appeilate suit as maintainable and remanding case to trial Court for a fresh decision on all issues save issue on preliminary point. Appellant, in circumstance, entitled in terms of S. 13, Court Fees Act to obtain certificate from appellate court for refund of court fee paid on memorandum of appeal-Words "preliminary point" in r. 23, O. XLI, C. P. C. Meaning. A trial Court dismissed a suit on the ground that it was not maintainable and in view of its decision on the issue of the maintainability of the suit the trial Court did not decide the other issues on the merits of the case. Aggrieved by the order of the trial Court the plaintiff filed an appeal and in the appeal the finding of the trial Court on the question of maintainability of suit was reversed and the case was remanded for fresh decision on all other issues. The plaintiff-appellant on the disposal of his appeal made an application to the appellate Court for grant of certificate under section 13 of the Court Fees Act for the refund of court fee paid by him on the memorandum of appeal. This prayer was rejected by the appellate Court. Held: The word "preliminary point" in rule 23, Order XLI C. P. C. is any point the decision of which avoids the necessity for the full hearing of the suit. The points are preliminary to the final disposal of the case. A preliminary point does not necessarily mean a point collateral to the merits of the case but includes any point whether of fact or law, the decision on which renders the decision on other issues arising in the case unnecessary. The judgments rendered by the trial Judge in this case while dismissing the suit and by the appellate Court while accepting the appeal and…