PLJ 2004 Lahore 524

Present: M. AKHTAR SHABBIR, J. MUHAMMAD AKRAM-Petitioner

versus Mst. SHEEDAN BIBI and another-Respondents

W.P. No. 10638 of 2003, heard on 12.11.2003. (i) Civil Procedure Code, 1908 (V of 1908)--

—-S. 115-Constitution of Pakistan (1973), Art. 199-Writ petition against revisional order-Maintainability-Revisional order cannot be challenged through writ petition if such order was not covered within dictum laid' down in cases reported as PLD 1999 Karachi 257 and 1991 SCMR 970.

[P. 527] C

(ii) Specific Relief Act, 1877 (I of 1877)--

.—S. 39-Court Fee Act (VII of 1887), S. 7(iv)(c)-CancelIation of document-­
Requisite Court fee leviable on plaint seeking cancellation of mutation-
Plaintiff in suit for cancellation of document under S. 39 of Specific Relief
Act, 1877, must allege that if instrument challenged was left outstanding,
same would cause him injury-Suit for cancellation of instrument would
be through declaration for cancellation of instrument declaring the same
to be void or voidable-Suit for declaration for setting aside gift mutation
having been filed, such mutation is not covered within definition of
instrument or document and such like suit would be covered within
provision of S. 7 IV (C) of Court Fee Act, which provides to obtain
declaratory decree or order where consequential relief is prayed-In such
suit plaintiff has to assess value of suit.                     [P. 526 & 527] A & B

1982 CLC 9; NLR 1984 Civil 59; 2002 CLC 1549; 1993 CLC 1391; KLR 1994 Civ. case 230; PLD 1991 AJK 66; PLD 1991 AJK 50; 1984 PSC 567;.PLD 1999 Karachi 257 and 1991 SCMR 970 ref.

Mr. Muhammad Yaqoob Chaudhry, Advocate for Petitioner. Ustad Muhammad Iqbal, Advocate for Respondents. Date of hearing: 12.11.2003.

judgment

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 Marias 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 disputed 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. Hag Nawaz and
others (1982 CLC 9), Mst, Bhagan through legal heirs. Vs. Mubarik Begum
etc (NLR 1984 Civil 59), Mst. Perveen Akhtar vs. Azhar All 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, vs. 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 cisating securing modifying or terminating a right.'

7.  From the contents of the plaint in hand it 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 Cdurt 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 re'visional 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.

(A.A.)                                                                             Petition dismissed.