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Civil Appeal No. 28 of 1967, decided on 26th February 1968.

(On appeal from the order of the High Court of West Pakistan, Lahore, dated the 2nd February 1967, in Civil Miscellaneous Petition No. 189 of 1967).

Art. 170 & Third Sched., Part If, para. S‑Court fee chargeable on writ petitions under Art. 170‑Power to prescribe such Court fee, whether derivable from para. S‑Reference by High Court to such para. while fixing Rs. S as such court fee "not wholly apt"‑Para. S expressly relates to matters concerning subordinate Courts.

Art. 98 read with Arts. 101, 131 & 132‑Court‑fee chargeable on writ petition- Raised by High Court from Rs. S to Rs. 100 by amending rule purporting to have been made under cl. 27, Letters Patent (Lahore) and Constitution of Pakistan (1956), Third Sched., Part II, para. J‑Amendment, held, intra vires‑Imposition of fees, where no provision is made in Court Fees Act (VII of 1870), necessary part of regulatory process applicable to motions made before Court, in view of provisions of cis. 9 & 27, Letters Patent (Lahore)‑High Court's power to regulate practice of Court includes power to fix court fees where no fee has been fixed‑Writ jurisdiction is "original" jurisdiction and not "extraordinary original jurisdiction"; must be termed as "constitutional jurisdic tion"‑Letters Patent (Lahore), cls 9, 24 & 25 read with Court Fees Act (VII of 1870), S. 4‑"Extraordinary original civil jurisdiction" of High Court‑Use of words "extraordinary original civil jurisdiction" in S. 4, Court Fees Act (VII of 1870), is apt to cause confusion‑Court Fees Act (VII of 1870), ‑ Sched. II, item 1(d)‑Argument that court fee on writ petition is governed by item 1(d) cannot be entertained‑Words "application or petition" in item relate to an application or petition concerning matters of an ancillary, adjective, or subordinate nature, and not to a petition asking for a "substantial relief" (e.g. a writ petition)‑ Constitution of Pakistan (1962), Arts. 131 & 132, Third Sched., items 38, 44‑Raising of fee chargeable on writ petitions within power of Provincial Legislature‑Such Legislature competent to make a law by which amendment made by High Court raising fee on writ petitions to Rs. 100 can be superseded‑Power of Legisla ture in this respect "superior"‑Words and phrases‑"Fee" is a charge generally levied at a moderate rate‑‑Extensive approach to High Court, with a view to invoking writ jurisdiction, not due to mere "aptitude for indulgence in litigation"‑Constitution of Pakistan (1962), Art. 2‑[Navivahoo's case L R 16 I A 156 dissented from].

The imposition of fees on motions made before a Court is a necessary part of the regulatory process applicable to such motions from the time of their commencement to their conclu sion. This is so evident that it is unnecessary to labour the matter further in order to bring the imposition of such fees, where no provision is mach therefor in the Court Fees Act, within the power possessed by a High Court to regulate its practice. By clause 27 of its Letters Patent, the power of regulating its practice has been conferred upon the Lahore High Court. By Article 101 of the present Constitution a High Court may "with the approval of the Governor of the Province make rules regulating the practice and procedure of the Court." The consent of the Governor was taken in respect of the amendment here In question, and on this view, it seems to be sufficiently clear that the amendment is intra vires.

The words of Articles 131 and 132 read with the relevant items in the Third Schedule must be understood as providing power to the Province to fix fees payable in all Courts within the Province, and further, where in matters arising before e.g., a High Court, no such fee has been fixed, there is given by Article 101 and by clause 9 of the Letters Patent a power to regulate the practice of the Court, which has for a great many years been interpreted to include the power to fix Court fees payable in such matters.

Writ jurisdiction is clearly an original jurisdiction. Equally clearly, it does not fall within the extraordinary original civil jurisdiction. To refer to it as "special" would be to minimise its standing and importance, for it is given by an Article in the Constitution for the purpose of implementing the high directive in Article 2 that no person Should be treated otherwise than in accordance with the law. The jurisdiction must obviously be described as a constitutional jurisdiction of an original kind. Being invoked invariably for gaining substantial relief, the petitions that are filed cannot be brought under item 1 in the Second Schedule to the Court Fees Act. Court‑fees have always been charged on such petitions not only by the Lahore High Court, but also by the Presidency High Courts, which are of much longer standing.

Mumtaz Khan v. Chief Settlement and Rehabilitation Com missioner P L D 1966 S C 276; Hamid Hassan v. Banwarfial A I R 1947 P C 90; Muhammad Ishaq v. Muhammad Moideen A I R 1922 Mad. 421; Abdul Hakim's case A I R 1931 Mad. 457 and Seshadri's case A I R 1954 Mad. 543 ref.

The use of the expression "extraordinary original civil jurisdiction" in section 4 of the Court Fees Act is clearly apt to cause confusion. The section read with the two Schedules given the impression that in the contemplation of the Legislature, which passed the Court Fees Act, with reference to a Court such as the Lahore High Court, its extraordinary original civil jurisdic tion covered not only the jurisdiction given by clause 9, but also that conferred by clauses 24 and 25 of its Letters Patent. That assumption cannot be supported on the wording of the Letters Patent itself, but it does not either affect the validity of the charges specifically provided in the Schedules or oblige the Courts to regard matters falling under clauses 24 and 25 of the Letters Patent of the Lahore High Court as falling under the "extraordinary original civil jurisdiction" conferred on the Lahore High Court by clause 9 aforesaid.

What is referred to by the words "application or petition" cannot be a petition asking for a substantial relief, but must relate to matters of an ancillary or adjective or subordinate nature.

The argument, therefore, that the matter of Court‑fee on a writ petition is governed by item 1 of the Second Schedule to the Court Fees Act cannot be entertained.

Satyanarayan Afurti's case A I R 1957 Andh. Prad. 1231 Yenkataraman's case I L R 53 Mad. 979 and Luka's case A I R 1958 Kerala 338 considered.

Navivahoo's case L R 16 I A 156 dissented from.

There can be no doubt that the raising of this fee was within the power of the Legislature. Under the Constitution of 1962, the Provincial Legislatures have powers to legislate in respect of subjects that are not included in the First Schedule, where the powers reserved to the Central Legislature are precisely enume rated. Item 44 in the Third Schedule reads as follows:‑--

"Fees in respect of any of the matters enumerated in this Schedule excluding fees taken in Courts (other than in the Supreme Court)."

By item 38, the Central Legislature has power to matte laws with respect to the Supreme Court including laws relating to the "fees to be taken in that Court." Articles 131 and 132 of the present Constitution read with item 44 of the Third Schedule matte it clear that the Provincial Legislatures have powers to make laws for the imposition of fees taken in all Courts except the Supreme Court, and that includes the High Courts. The position was somewhat more clearly stated in the Constitution of 1956, which contained a separate list of subjects reserved for Provincial Legislatures. Item 2 in that list which occurs in the Fifth Schedule to that Constitution included a reference to "fees taken in all Courts, except the Supreme Court." There can be no question but that the Provincial Legislature of West Pakistan is competent to make a law by which the provision made by the High Court through the rule here in question can be superseded.

Holding that the decision of the High Court, that the rule fixing the fee chargeable on a writ petition was intro vires and legal, was correct, the Supreme Court regretted that so great an increase in the fee was not allowed to be dealt with by the Legis lature, whose power in this respect is superior, and is exercisable on wider grounds than those appropriate to the High Court.

A fee, as is well understood, is a charge generally levied at a moderate rate, far a service rendered. When comparison is made between the small fees fixed by the Court Fees Act for an application to commence what may be a protracted proceeding in the matrimonial or succession jurisdiction, and the fee of Rs. 100 now charged by the High Court of West Pakistan for entertaining a petition which involves no more than a summary proceeding, some strength is found for the argument that in fact, it is a tax that has been levied and not merely a fee. The writ jurisdiction is very extensively invoked in the West Pakistan High Court, reflecting the extent to which the citizens in these territories are subjected to control by orders of public authority acting under law. By Article Z of the Constitution, every citizen has the right to be treated in accordance with law and only in accordance with law. Consequently, it cannot be said that the approach so extensively made by the citizens to the High Court for scrutiny of actions of public authorities by which they have been adversely affected is due to mere aptitude for indulgence in litigation.

S. M. Rehrnan Ansari, Advocate Supreme Court instructed by S. Wajid Hussain, Attorney for Appellant.

Ghias Muhammad, Attorney‑General for Pakistan (Saeedur Rahman, Advocate Supreme Court with him) instructed by Iftikharudin Ahmad, Attorney under Order XLV, S. C. R., 1956.

Raja Sail Akbar Khan, A.‑G. West Pakistan (Muhammad Ashraf, Advocate Supreme Court with him) instructed by Ijaz Ali, Attorney under Order XLV, S. C. R., 1956.

Nemo for Respondents.

Dates of hearing: 17th, 18th May and 20th June 1967.

.‑----This certificated appeal raises the question of the Court‑fee that is chargeable by law on petitions instituted in the High Court of West Pakistan under Article 98 of the Constitution. The writ jurisdiction was first conferred upon the High Courts in Pakistan by amendment of the Government of India Act, 1935 in the year 1954. During the further life of that constitutional instrument, it underwent certain vicissitudes into which it is not necessary to enter. It appears that during that period, the Court‑fee charged on petitions brought under section 223‑A of the Government of India Act, 1935, was Rs. 2. The jurisdiction was freshly given to the High Courts by Article 170 of the 1956 Constitution, and the High Court of West Pakistan by a rule made on the 9th June 1956, raised the fee to Rs. 5 purporting to act under clause 27 of the Letters Patent of the High Court and paragraph 5 of Part II of the Third Schedule to the 1956 Constitution. The latter reference does not appear to be wholly apt, as paragraph 5 is expressly related to matters concerning Courts subject to the appellate or revisional jurisdiction of the High Court, over which it has superintendence and control. Clause 27 of the Letters Patent of the High Court makes it lawful for the High Court to make rules and orders "for regulating the practice of the Court" and a question raised in this appeal is whether this power enables the High Court to increase the fee charged on such matters, which it is contended are governed by precise provision in the Court Fees Act, 1870 to which reference will presently be made.

In the Constitution of 1962 now in force, the writ jurisdiction was conferred upon the High Courts by Article 98. On the 30th April 1966, the High Court of West Pakistan amended the relevant rules so as to raise the fee payable on a petition under Article 98 from Rs. 5 to Rs. 100, and also fixed Rs. 200, as the Court‑fee payable on an appeal under the Letters Patent against an order of a Single Judge passed under that Article. The validity of this amendment, which was made under the same power as aforesaid was called in question by the present appellant, Ahmad Khan, by a writ moved under Article 98. In a considered judgment, a Division Bench of the High Court has held the amendment in question to be intra vices and legal. Against this finding leave was granted to appeal. The case being one involving a point of great public importance, the Attorney‑General of Pakistan and the Advocate -General of West Pakistan assisted the Court, and an argument was also heard supporting the appeal from Mr. M. Shafi appearing for the High Court Bar Association.

Mr. S. M. Rahman Ansari, who presented a well prepared argument on behalf of the appellant placed his reliance mainly on the wording of section 4 of the Court Fees Act, which is reproduced below so far as relevant:‑---

"No document of any of the kinds specified in the First or Second Schedule to this Act annexed, as chargeable with fees, shall be filed, exhibited or recorded in, or shall be received or furnished by, any of the High Courts in any case coming before such Court in the exercise of its extraordinary original civil jurisdiction;

unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said schedules as the proper fee for such document."

The Court Fees Act contains no provision fixing Court‑fees on plaints, petitions or applications made in a High Court seeking exercise of the ordinary original civil jurisdiction of the High Court. The latter jurisdiction was possessed under the Letters Patent only by the three Presidency High Courts of Madras, Bombay and Calcutta. Clause 11 of the Letters Patent of the Presidency High Courts purported to fix the local limits of the ordinary original jurisdiction, civil and criminal, of the Presidency High Courts, and clause 12 laid down in precise terms that each such Court was empowered

"in the exercise of its ordinary original civil jurisdiction to receive, try and determine suits of every description, if, in the case of suits for land or other immovable property, such land or property shall be situated, or in all other cases if cause of action shall have arisen, either wholly, or in case the leave of the Court shall have been first obtained, in part, within the local limits of the ordinary original jurisdiction of the said High Court, or if the defendant at the time of the commencement of the suit shall dwell, or carry on business, or personally work for gain within such limits."

There was a clause added to save the jurisdiction of the Small Cause Courts in the Presidency towns. Clause 13 in each of these Letters Patent conferred upon the Presidency High Courts "power to remove and to try and determine, as a Court of extraordinary original jurisdiction any suit" within the jurisdiction of any Court subject to the superintendence of the High Court in question. Certain special jurisdictions were given by later clauses. Clause 17 gave jurisdiction in respect of the persons and estates of infants, idiots and lunatics, such as was exercised by the High Court immediately before the publication of the Letters Patent. Clause 18 enabled these High Courts to exercise power and authority both original and appellate as a Court for relief of insolvent debtors, in accordance with the existing laws. Clause 34 confirmed these High Courts in the powers they already exercised as a Court of admiralty or vice admiralty and for the trial and adjudication of prize causes and other maritime questions. Clause 34 confirmed the testamentary and intestate jurisdiction which the High Courts already exercised, and clause 35 conferred upon these Courts jurisdiction "in matters matrimonial between our subjects professing the Christian religion." The writ jurisdiction was not provided for in the Letters Patent.

Although there are significant differences between the provisions in these respects made in the Letters Patent of the Lahore High Court here in question and those made in the Letters Patent of the Presidency High Courts, it is necessary for a proper understanding of the provisions contained in the Court Fees Act that the jurisdictions on the civil side conferred upon or confirmed in the Presidency High Courts by their Letters Patent should be examined in detail. This is necessary for appreciation of the provisions coatained in the Court Fees Act, since they, on their face can be construed as desired by the learned counsel appearing for the appellant as well as for the High Court Bar Association, in such a manner as to exclude application of the power of ‑the High Courts in their respective Letters Patent to regulate the practice of the Court, in relation to the fixation of the Court‑fees in the relevant cases.

The Court Fees Act as has been stated already makes no provision for the charge of fees in respect of matters brought before a High Court for the exercise of its ordinary original civil jurisdiction. The High Court of Lahore does not exercise any ordinary original civil jurisdiction, but its Letters Patent in clause 9 uses the same language as that of clause 13 of the Letters Patent of the Presidency High Court in conferring "power to remove and to try as a Court of extraordinary original jurisdiction any suit . . . ." This enables the presentation of an argument to the effect that any matter of a civil nature which the High Court entertains as a Court of first instance must necessarily fall within its "extraordinary original civil jurisdiction" and to produce this result, it is contended that the words in section 4 of the Court Fees Act have direct application, vie., that no document of any of the kind specified in the First or the Second Schedule to the Court Fees Act shall be received in any case coming before the Court "in the exercise of its extraordinary original civil jurisdiction" unless there be paid in respect of such document "a fee of an amount not less than that indicated by either of the said Schedules as the proper fee for such document." Now, in the Letters Patent of the Lahore High Court, clause 24 confers testamentary and intestate jurisdiction and clause 25 confers matrimonial jurisdiction in terms similar to those used in the Letters Patent of the Presidency High Courts. Item 11 in the First Schedule fixing sad valorem fees aforesaid has reference to "probate of a will or letters of administration with or without will annexed" and clause 12 relates to "certificates under the Succession Certificates Act, 1889." Schedule II providing for fixed fees contains provisions relating to the matrimonial and intestate jurisdiction in item 7, which refers to section 49 of the Divorce Act, 1869, in item 12 relating to caveats in probate matters, in item 14 relating to the suits under the Native Converts Marriage Dissolu tion Act, 1886, in item 20 relating to petitions of every kind under the Divorce Act, and in item 21 relating to plaints under the Parsi Marriage and Divorce Act, 1865, The highest amount of fixed fee payable is 20 rupees under Schedule II. In two items from Schedule/relating to matters of succession, ad valorem fee is chargeable on the amount or value of the property concerned and this may well be a considerable sum in an appropriate case. The fee which is here called in question is a fixed fee, and it is a noticeable point that it is five times as high as the highest fee fixed for a proceeding in the High Court by the Court Fees Act. It may be mentioned too that matters falling in the matrimonial jurisdiction and in matters of succession to states could well involve a lengthy proceeding requiring trial in the mode of a suit under the Civil Procedure Code, the reception of evidence of every kind, and a proper judgment. On the other hand, the ordinary rule in a writ petition is that evidence is not received in the manner of a civil suit, but all facts to be brought before the Court are stated in affidavits and the question raised, which relates to the proper exercise of public authority, is decided thereon in a summary manner. A fee, as is well understood, is a charge generally levied at a moderate rate, for a service rendered. When comparison is made between the small fees faxed by the Court Fees Act for an application to commence what may be a protracted proceeding in the matrimonial or succession jurisdiction, and the fee of Rs. 100 now charged by the High Court of West Pakistan for entertaining a petition which involves no more than a summary proceeding, some strength i s found for the argument placed before us that in fact, it is a tax that has been levied and not merely a fee. The writ jurisdiction is very extensively invoked in the West Pakistan High Court, reflecting the extent to which the citizens in these territories are subjected to control by orders of public authority acting under law. By Article 2 of the Constitution, every citizen has the right to be treated in accordance with law and only in accordance with law. Consequently, it cannot be said that the approach so extensively made by the citizens to the nigh Court for scrutiny of actions of public authorities by which they have been adversely affected is due to mere aptitude for indulgence in litigation. In each case it is a substantive matter that is raised; there has been a real injury and a question is advanced that the law did not authorise the public act, which was the case of such injury viewed in that light, force is lent to the contention that in fact the startling increase in the fee from Rs. 5 to Rs. 100 acts as a check or hindrance in the way of citizens seeking justice at, the hands of the High Court, under the promise of the Constitution to be protected from any action of a public authority that is not in accordance with the law. It was pleaded in the course of the argument that such a decision, namely, to raise the initial fee for the com mencement of a proceeding of this kind was one which could appropriately be taken only by the Legislature. The High Court had not stated any reason for its action, but reasons could be imagined such as that there was a desire for increase of income or that it was necessary to curtail abuse of the facility granted by the Constitution to approach the High Court against orders of the public authorities. Such matters were not for the High Court to consider since it was not a self‑financing institution, and moreover as the fount of justice and being in duty bound to give effect and operation to every dictate of the Constitution, its actions in this respect should have been rather in the opposite direction. It was pointed out that in the High Court of East Pakistan, the charge on a petition of this kind still remains at Rs. 2.

There can be no doubt that the raising of this fee was within the power of the Legislature, Under the Constitution of 1962. the Provincial Legislatures have powers to legislate in respect of subjects that are not included in the First Schedule, where the powers reserved to the Central Legislature are precisely enumerated. Item 44 in the Third Schedule reads as follows:‑--

"Fees in respect of any of the matters enumerated In this Schedule excluding fees taken in Courts (other than in the Supreme, Court)."

By item 38, the Central Legislature has power to make ass with respect to the Supreme Court including laws relating to the "fees to be taken in that Court." Articles 131 and 132 of the present Constitution read with item 44 of the Third Schedule make it clear that the Provincial Legislatures have powers to make laws for the imposition of fees taken in all Courts except the Supreme Court, and that includes the High Courts. The position was somewhat more clearly stated in the Constitution of 1956 which contained a separate list oil subjects reserved for Provincial Legislatures. Item 2 in that list which occurs in the Fifth Schedule to that Constitution included a reference to "fees taken in all Courts, except the Supreme Court." There can be no question but that the Provincial Legislature of West Pakistan is competent to make a law by which the provision made by the High Court through the rule here in question can be superseded.

Mr. S. M, Rahman Ansari's arguments may be briefly stated as follows. The High Court's jurisdiction invoked in this case was original civil jurisdiction. As the High Court has no ordinary original civil jurisdiction, the case rust necessarily fall within its extraordinary original civil jurisdiction. The wording of section 4 of the Court Fees Act read with the item in the Schedules to which a reference has already been made clearly show that in the contemplation of the Court Fees Act, the extraordinary original civil jurisdiction was not confine by the wording of clause 9 of the Letters Patent of the Lahore High Court to the removal and trial of suits from subordinate Courts, but extended also to matters falling in the jurisdiction on the matrimonial and succession side, which were expressly provided for in other clauses where the expression "extraordinary original jurisdiction" was not used. Item 1 in the Second Schedule to the Court Fees Act contains in clause (d) a provision that an application or petition when presented to a High Court shall bear a Court‑fee of two rupees. The words "application or petition" in the first column of the Second Schedule were not qualified by any words of limitation and must therefore be understood to include such a petition as one invoking the jurisdiction of the High Court under Article 98.

At first sight, the latter argument has an appeal, but when it is examined against the other provisions contained in clauses (a), (b) and (c.) of this item, it becomes apparent that what is referred to by the words "application or petition"' cannot be a petition asking for a substantial relief, but muse relate to matters of an ancillary or adjective or subordinate nature. Thus, there is reference to an application "presented' to a Civil Court" and this cannot obviously include a petition or a plaint seeking substantial relief. There are other expressions in this item which lead to the same conclusion and indeed the very low level at which the fees are fixed by the Second Schedule, commencing at one anna and ending at two rupees is by itself a sufficient indication that the applications or petitions referred to are mostly of a miscellaneous nature relating to other matters of a substantial nature pending before the Court or authority concerned. Thus, for instance, in clause (a) of this item, there is a reference to an application or petition presented to any Civil Court "in relation to any suit or case in which the amount or value of the subject‑matter is less than fifty rupees." The argument that the matter of Court‑fee on a writ petition is governed by item 1 of the Second Schedule to the Court Fees Act cannot be entertained.

Mr. S. M. Rahman Ansari was however able to produce two judgments passed by High Courts in India of somewhat recent creation in support of his argument. In the case of Satyanarayan Murti (A I R 1957 Andh. Prad. 123) it was said on a somewhat inadequate basis of argument that "it is settled law that the High Court was issuing writs . . . . in exercise of its extraordinary original jurisdiction," and reliance was placed on a judgment of a Presidency High Court in the case of Venkataraman (I L R 53 Mad. 979) where what was actually said was that the jurisdiction termed "original" is not to be confused with ordinary original jurisdiction. Another such case is that of Luka (A I R 1958 Kerala 338) where in an extremely short judgment, the conclusion was arrived that Rs. 2 were payable as Court‑fee on a petition seeking a writ under Article 226 of the Constitution of India. The Kerala High Court had itself fixed Rs. 25 as the Court‑fee for such matters. In this judgment, it was said that levy of Court‑fee is a matter within the legislative power of the Provincial Legislature exclusively, and must be done by means of a provision in the Court Fees Act. With respect, neither of these decisions can be accepted as proceeding on a convincing. basis of law or argument.

Mr. S. M. Rahman Ansari also 'referred to the Privy Council case of Navivahoo (L R 16 IA 156). That was a case involving an order of the High Court of Bombay, made in execution of a judgment of the Insolvency Court under the Indian Insolvency Act of that time, which had been entered up in the High Court under that law. There was a provision that the Insolvency Court could order execution whenever satisfied of the existence of assets that could be seized for payment of the debts, and no lapse of time was to stand in the way of the making of such an order. Thereupon, execution was to issue in the High Court. The Insolvency Court judgment in the case had been entered up in the High Court on the 19th August 1868 for a sum exceeding one hundred and sixty lakhs of rupees. On the 5th April 1886, the Insolvency Court ordered execution for about fifty lakhs rupees against certain property. The execution being commenced in the High Court, objections were taken on behalf of the debtors, one of which was placed on the point of limitation. If the case lay within the ordinary original civil jurisdiction, limitation was 12 years from the date of the High Court decree, but if within the extraordinary original civil jurisdiction, then it was only three years. Although, in this case, the point of limitation did not appear to arise since following the order of the Insolvency Court of the 5th April 1886, a move for execution was made in the High Court a few days later, yet the Judicial Committee entertained this argument and concluded that the judgment was entered up in exercise of the ordinary original civil jurisdiction, for the reason that it was entered up not by way of special or discretionary action, but in the course of duty cast upon the High Court by law according to which every other case of the same kind would be dealt with.

Speaking with great respect, the mere fact of a matter coming directly before the High Court under a law would not suffice to bring it within the ordinary original civil jurisdiction, however, frequent such occasions may be, if the words in clauses 12 and 13 of the relevant Letters Patent be given their full effect. The ordinary original civil jurisdiction was confined to the trial of suits arising within the local limits of that jurisdiction. The extraordinary original civil jurisdiction was given for the removal and trial of suits pending or falling within the jurisdiction of Courts subordinate to the High Court. Every other jurisdiction of a civil nature conferred by the Letters Patent would as contended by the learned Attorney‑General, be best described as special jurisdiction or as statutory juris dictions, since some of those jurisdictions were to be exercised under existing statutes. In the case of the Lahore High Court, there was no power to receive suits in the ordinary original civil jurisdiction, there being no provision in the relevant Letters Patent in that behalf. The Lahore High Court had testamentary and intestate jurisdiction to be exercised in accordance with law, and matrimonial jurisdiction exercisable under its own l law. The jurisdiction of a general nature that it possessed was that conferred by clause 9 and described as extraordinary original jurisdiction, which was confined to power to remove and try suits pending before its subordinate Courts.

On that view, it would appear that the use of the expression "extraordinary original civil jurisdiction" in section 4 of the Court Fees Act is clearly apt to cause confusion. The section read with the two Schedules gives the impression that in the contemplation of the Legislature, which passed the Court Fees Act, with reference to a Court such as the Lahore High Court, its extraordinary original civil jurisdiction covered not only the jurisdiction given by clause 9, but also that conferred by clauses 24 and 25 of its Letters Patent. That assumption cannot be supported on the wording of the Letters Patent itself, but it does not either affect the validity of the charges specifically provided in the Schedules or oblige the Courts to regard matters falling under clauses 24 and 25 of the Letters Patent of the Lahore High Court as falling under the "extraordinary original civil jurisdiction" conferred on the Lahore High Court by clause 9 aforesaid.

When this distinction is made, that is to say between matters falling in the extraordinary original civil jurisdiction given by clause 9 and those in the special or statutory jurisdictions referred to in clauses 24 and 25, it becomes necessary to consider in what category the jurisdiction involved in the present case should be placed. It is clearly an original jurisdiction. (Vide, the judgment of this Court in the case of Mumtaz Khan v. Chief Settlement and Rehabilitation Commissioner (PLD1966SC276) and the Privy Council case of Hamid Hassan v. Banwarilal (AIR 1947PC90). Equally clearly, it does not fall within the extraordinary original civil jurisdiction. To refer to it as "special" would be to minimise its standing and importance, for it is given by an Article in the Constitution for the purpose of implementing the high directive in Article 2 that no person should be treated otherwise than in accordance with the law. The jurisdiction must obviously be described as a constitutional jurisdiction of an original kind. Being invoked invariably for gaining substantial relief, the petitions that are filed cannot be brought under item 1 in the Second Schedule to the Court Fees Act. Court‑fees have always been charged on such petitions not only by the Lahore High Court, but also by the Presidency High Courts, which are of much longer standing. It is necessary to examine the source of power which enabled the Presidency High Courts to impose these fees. A number of judgments from the Madras High Court have been cited, which furnish a clear and correct answer to this question. In the case of Muhammad Ishaq v. Muhammad Moideen (A I R 1922 Mad. 421) It was observed as under;‑‑

It has always been maintained that the power under which fees are levied on the original side of the High Court was derived from the general powers to issue general rules for regulating the practice and procedure of the Courts. It is argued and I think it is rightly 'argued, that the power to make regulations for procedure necessarily includes imposition of fees and the collection of them, and the Court can collect the fees only through its proper officers"

In the case of Abdul Hakim (A I R 1931 Mad. 457) it was pointed out that the Court Fees Act does not prescribe fees payable in the ordinary original civil jurisdiction and the High Court's power to frame rules to prescribe such fees was "undoubted," but as to the extraordinary original civil jurisdiction, the Court Fees Act directly applies and the High Court cannot frame rules to the contrary. In the case of Seshadri (A I R 1954 Mad. 543) it was held that the High Court had power to prescribe Court‑fees where none are specified by the Legislatures. This power was derived from clause 37 of the Letters Patent of the Madras High Court, but it was conceded that the power of the Legislature to prescribe Court‑fees was superior to that of the High Court.

The imposition of fees on motions made before a Court is a necessary part of the regulatory process applicable to such motions from the time of their commencement to their conclusion. This is so evident that it is unnecessary to labour the matter further in order to bring the imposition of such fees, where no provision is made therefor in the Court Fees Act, within the power possessed by a High Court to regulate its practice. By clause 27 of its Letters Patent, the power off regulating its practice has been conferred upon the Lahore High Court. By Article 101 of the present Constitution a High Court may "with the approval of the Governor of the Province make rules regulating the practice and procedure of the Court." The consent of the Governor was taken in respect of the amendment here in question, and on this view, it seems to be sufficiently clear that the amendment is intra vires.

On behalf of the Bar Association, the argument raised was that the Constitution of 1962 takes away from the High Courts all powers to fix fees in any matter within its original civil jurisdiction of whatever kind. Reference was made to Article 130, which denies to all Courts the exercise of "any jurisdiction that is not conferred on it by this Constitution or by or under the law." The strength of the argument would appear to lie in the absence of a Provincial list of subjects on which the Province may legislate, within the present Constitution, but it has already been seen that the words of Articles 131 and 132 read with the relevant items in the Third Schedule must be understood as providing power to the Province to fix fees payable in all Courts Within the Province, and further, where in matters arising before e.g., a High Court, no such fee has been fixed, there is given by Article 101 and by clause 9 of the Letters Patent a power to regulate the practice of the Court, which has for a great many years been interpreted to include the power to fix Court‑fees payable in such matters.

An argument raised before the High Court on the strength of Article 237 of the Constitution, which was rejected by the High Court after due consideration was not raised before us. The purpose of the argument was to show that because Article 237 of the Constitution validated "all taxes and fees levied under any law in force immediately before the commencing day----- until they are varied or abolished by Act of the appropriate Legislature," therefore, the fee of Rs. 2 which it is contended was payable under item 1 of the Second Schedule to the Court Fees Act could not have been varied by the High Court. In fact, the fee of Rs. 5 that was charged when the new Constitution came into force in 1962, had been imposed in 1956, by a rule made in exercise of the High Court's power. As has been pointed out in the judgment of the High Court, Article 225 of the Constitution contains a provision that all existing laws shall continue in force, and these will include rules made by a High Court under its rule‑making power derived from clause 27 of its Letters Patent, as well as from Article 101.

For these reasons, while regretting that so great an increase in the fee was not allowed to be dealt with by the Legislature, whose power in this respect is superior, and is exercisable on wider grounds than those appropriate to the High Court, I think that the decision of the High Court that the rule in question is intra vires and legal is correct, and I would therefore dismiss this appeal, but in the circumstances, I would leave the parties to bear their own costs.

I agree.

‑I agree.

I agree.

‑I agree.

A. H. Appeal dismissed.

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