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Suit No. 230 and Miscellaneous Application No. 3743 of 1976, decided on 3rd November, 1982.

‑‑ First Sched. read with Court Fees (Sind Amendment) Ordinance (VII of 1977), S. 2 and Civil Procedure Code (V of 19081, O. XXIII, r. 3 Court‑fees‑Suit for recovery‑Compromise application with increased amount payable to plaintiffs filed by parties after promulgation of amending Ordinance‑Decree passed subject to payment of deficit court‑fees‑Plaintiffs, Held, liable to pay court‑fees on additional amount at rate applicable on date when compromise application filed.

Hamza I. Ali for Plaintiff.

Mohsin Tayebally for Defendants.

Abdul Wali Makhdoom for the State.

This suit was filed in this Court on 5‑4‑1976 by the plaintiff bank against the defendants for the recovery of Rs. 1,55,73,581.38. At the time the suit was filed there was no maximum ceiling on the court‑fee in Sind and as per the Schedule of Court‑fee then applicable, the plaintiff paid a total Court fee of Rs. 3,90,115 on the plaint. It may be observed here that on 7‑7‑1977, Court Fees (Sind Amendment) Ordinance, No. VII of 1977 was promulgated amending the Court‑fees Act, 1870 in its application to the Province of Sind by providing for a maximum ceiling of Rs. 15,000 for court‑fees. Section 2 of Sind Ordinance VII of 1977 is as follows ‑‑

"Notwithstanding anything contained in the First Schedule to the Court fees Act, 1870 (Act I of 1870) court‑fee payable thereunder shall not, in any case exceed fifteen thousand rupees."

2. The parties to this suit arrived at an amicable settlement and filed application under Order XXIII, rule 3, C. P. C. on 10‑11‑1977 containing the terms of the compromise. By order dated 10‑11‑1977, this Court passed a decree in terms of the said compromise application subject, however, "to the payment of deficit court‑fee, if any, within two weeks". Plaintiff under took to pay the deficit Court‑fee. The question of payment of further Court‑fee had arisen as through the compromise application a decree for Rs. 2,57,37,539.38 was sought and passed as against the amount of Rs. 1,55,73,581.38 for which this suit was originally filed on 5‑4‑1976.

3. By the present application the plaintiff ‑has sought a direction from the Court as to the amount of deficit court‑fee, if any, payable by the plaintiff on the facts stated above. One further relevant fact may be noted here and that is that the figure of Rs.2,57,37,539.38 mentioned in the compromise application comprised the following amounts :‑

"(i) Rs. 1,55,73,581.38‑amount originally claimed in the suit.

(ii) Rs. 86 63 958.00‑amounts paid to I. D. B. P. and P.I.C.I.C. on behalf of the defendants after the filing of the suit.

(iii) Rs. 15,00,000.00‑paid by the plaintiff bank to the defendants on the date of the decree."

Toal Rs. 2,57,37,539.38

4. According to Mr. Hamza I. Ali, learned counsel for the plaintiff; no further court‑fee is payable as on the date of the compromise i.e. on 10‑11‑1977, the maximum court‑fee payable was Rs. 15,000, whereas a total of Rs. 3,90,115 towards court‑fee had already been paid. In the alternative, it was argued by Mr. Hamza I. Ali that at the most an additional Court‑fee of Rs. 15,000 can be charged as the compromise was made on 10‑11‑19.77 i.e. on a date after the promulgation and coming into force of Sind Ordinance VII of 1977. Mr. Mohsin Tayebally did not oppose the contentions of the learned counsel for the defendants.

5: Mt. Abdul Wali Makhdoom for Advocate‑General Sind, however, contended that the compromise had the effect of amending the plaint and in the circumstances the plaint will be deemed to be amended so that the original claim of Rs. 1,55,73,581.38 stood converted to a claim for Rs. 2,57,37,539.38 as on 5‑4‑1976 when the suit was filed. On the basis of this submission it was argued that deficit Court‑fee is payable by the plaintiff at the rates applicable on 5‑4‑1976 before the schedule of court‑fees was amended by Ordinance VII of 1977.

6. From a perusal of the compromise application, it is apparent that the two additional amounts of Rs. 86,63,958 and Rs. 15,00,000 were paid after the present suit was filed. These two amounts, therefore, could not be part of the claim at the time the suit was filed on 5‑4‑1976. I cannot, therefore, accept the contention that by the compromise application the amount claimed in the suit increased to the figure of Rs. 2,57,37,539.38 as from 5‑4‑1976. The compromise application also does not say that the amount claimed in the suit will be deemed to have increased with effect from 5‑4‑1976.

7. In my view on the date when the compromise application was filed, the plaintiff could have filed a separate suit for the recovery of the additional amounts. Instead of filing a separate suit and filing two separate compromise applications, the compromise application filed in this suit on 10‑11‑197 referred to the two additional amounts and sought a compromise decree for the increased amount. By adopting this method a second suit was avoided. But the plaintiff are liable to pay court‑fee on the additional amount claimed at the rate applicable on 10‑11‑1977 when the compromise application was filed.

8. Plaintiff are, therefore, directed to pay additional court‑fee ofl Rs. 15,000. This should be done on or before 30‑11‑1982. C. M. A. 3743/77 stands disposed of.

M.Y.M. Suit disposed of.

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