Bendapudi Veera Venkata Subba Rao and Another vs Rao Venkata Rao

This CIV. Revn. Petn. raises a question of court-fee. The facta necessary for appreciating the question raised may be briefly narrated. The

plaintiffs filed O. S. No. 81 of 1949 on the file of the Court of the Subordinate Judge, Kakinada, for recovery of possession of the properties

described in A & B schedules annexed to the plaint. We are not concerned with the A Schedule property, as nothing turns upon it in the revision.

In regard to B Schedule property, it is alleged in the plaint that the plaintiffs'' paternal grand-father, late Benda- pudy Venkataratnam, purchased

the property described in the B Schedule for a sum of Rs. 14,000 from the defendants, under a registered sale deed dated 16 1-1945. In para. 17

of the plaint it is stated that:

The plaint B schedule property in an undivided southern half of a big plot & so the plaintifia. & the defendants are cosharers of the big plot. The

plaintiffs are entitled to have their southern half separated & to be put in separate possession of the same. As regards the said property, the

plaintiffs pray for a decree for separation of the same & to put them in separate possession after evicting the defendants therefrom.

The schedules are not before us, and we presume that they are described by boundaries & also by extent. The B schedule property was valued u/s

7, Clause (v), Court-fees Act, for purposes of jurisdiction at a sum of Rs. 20,000 & a court-fee of Rs. 100 is paid under Article 17-B of Schedule

II, Madras Court-fees Amendment Act. The plaint was presented on 22-6-1949. On 24-6-1949 the plaint was returned signed by .the Principal

Subordinate Judge with an endorsement that the deficit court-fee should be paid. The endorsement reads:

When the purchaser, the plaintiffs'' paternal grandfather haa not entered into joint possession of the property puruhased by him as per B schedule,

the relief for partition & possession should be valued nnder Clause (v) of Section 7. Returned, Time 7 days.

On 2-7-1949 the plaint was re-presented with an explanation that the valuation of the B schedule property & the court-fee paid thereon was

correct. On 6-7-1949, it was again returned with an endorsement, signed by the Subordinate Judge as follows:

The allegations in paras. 11 to 16 clearly show that the propfrty as per schedule B was not put in joint possession of the plaintiffs or their

grandfather & so the plaintiffs cannot be said to be in constructive possession of their share with their co-sharers. Hence the relief for partition of

the B Schedule property also has got to be valued u/s 7, Clause (v), Court-fees Act. Returned. Time 7 days.

It was again re-presented with an explanation elucidating the circumstances under which the relief was valued & asserting that the valuation put

upon it by the plaintiffs was correct. The Sheristadar scrutinised the plaint again & made an endorsement ""presented in time & stamped aright. May

be filed."" This endorse. ment was signed by him. Below the endorsement of the Sheristadar the following endorsement appears, ""Issue summons to

defendants for issues 17-8-1949"" This was signed by the Subordinate Judge himself. On 10-11-1949, the office pointed out that the B schedule

property was Zamindari 2eroyati land of 38 acres & 2 1/2 cents in extent, specified within boundaries, & that, as the same was a specific plot

within specified boundaries, ad valorem court-fee should be paid on the market value in accordance with the ruling in Kesanna v. Gan- gappa, ILR

(1947) Mad. 64S: A.I R. 1947 Mad. 297 Notice was given to the plaintiffs advocate to show cause why he should not pay court-fee on the

market value. On 20-12-1949, after hearing the arguments of the pleader for the plaintiffs the learned Subordinate Judge passed an order in the

following terms :

So far as the B schedule land is concerned, the prayer is for possession of the southern Ac. 38 2 1/2 cents out of a big plot. It is a suit for a

specific) plot & not for partition. The fixed court-fee of Rs. 100 paid under Schedule 2, Article 17 B is insufficient. The plaintiffs should value this

relief on the market value of the 38 acres & odd in ac sordance with the observations in Kesanna v. Gangappa.

For correct valuation & payment of deficit court-fee 3-1-1950.

The plaintiffs have preferred the above revision against the said order.

[The revision first came up before one of us (Panohapakesa Ayyar J.) & it was referred to a Bench in view of the important question raised

therein. Notice was given to the Govt. Pleader.]

The learned counsel for the petitioner has raised before us two contentions: one, that the order issued by the Subordinate Judge on 17-8-1949

directing summons to issue to the defendants in the circumstances of the case involved a decision within the meaning of Section 11, Court-fees Act

& therefore the learned Subordinate Judge had no jurisdiction to reopen the matter & call upon the plaintiffs to pay additional court-fees; two, that

the decision in Kesanna, v. Gangappa, I. L. R. (1947) Mad. 643: AIR 1947 Mad. 297 had no application to the facts of this case, as the plaintiffs

did not ask for possession of a specific plot of land, but only asked for separating the southern half of a bigger plot & to be pub in possession

thereof.

The first question turns upon the construction of some of the provisions of the Court-fees Act. The relevant sections read as follows. Section 6 :

Except in the Courts hereinbpfore mentioned, no document of any of the kinda specified as chargeable In the first or second schedule to this Act

annexed shall be filed, exhibited or recordad in any Court of Justice, or shall ba received or furnished by any public office unless in respect of such

document there be paid a fee of an amount not lesa that that indicated by either of the said schedules as the proper fee for such document.

Section 7 :

The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows

Section 12(1) :

Every question relating to valuation for the purpose of determining the amount of any fee chargeable under this chapter on a plaint or

memorandum of appeal shall be decided by the Court in which such plaint or memorandum, as the case may be, is filed, and such decision shall be

final as between the parties to the suit.

Section 12(ii) :

But whenever any such suit comes before a Court of appeal, reference or revision if such Court considers that the said question has been wrongly

decided to the detriment of the revenue, it shall require the party by whom such fee has been paid to pay so much additional fee as would have

been payable had the question been rightly decided, and the provisions of Section 10, para (ii) shall apply.

The provisions of Section 12 have been the subject of judicial scrutiny in the various High Courts, It may be convenient at this stage to notice the

decisions cited before us. The earliest decision in this H. C. whioh throws some light on the subject is Kasturi Chetti v. Deputy Collector Bellary,

21 Mad. 269. In that case, an appeal against the award made by the Dist. J. under the Land Acquisition Act (I [1] of 1894) was filed in the H. C.

the appeal memorandum bearing a court-fee stamp of Rs. 10 only and was admitted by the Regiatrar, no question having been raised as to the

sufficiency of the stamps. At the time of the hearing of the appeal, it was objected on the part of the resp. that the stamp paid was insufficient. It

was contended that as the appeal waa admitted by the Registrar without any objection, it was not open to the Ct. to reopen the matter. But the

learned Judges, rejecting the contention, held that there was no decision by the Taxing Officer within the meaning of Section 5, Court-fees Act, &

therefore it was open to the Court to reopen, the matter and direct the appellant to pay additional court-fee. Though the wording of Section 5,

Court-fees Act and that of Section 12 are not identical, the principle under; lying the two sections appears to be the same, If there was a decision

of the Court, u/s 5 or u/s 12, as the case may be, tbe order would be final, and the Court could not reopen and reagitate tbe matter at a later stage.

Bat a direct decision on Section 12 itself is found in In re Lakshmi Ammal, 49 M. L. J. 608 :A. I. R. 1926 Mad. 96. In that case the relevant

facts are these: A plaint, whioh was insufficiently stamped, was filed in the City Civil Court and waa accepted without objection by the sheristadar

of that Court, who was entrusted with the duty of checking the pleadings filed and of seeing whether the proper court-fee has been paid thereon.

The suit was dismissed by the City Civil Judge, an on appeal, by the plaintiff, the Taxing Officer of the High Court demanded from the plaintiff the

difference between the court-fee paid by her in the City Civil Court and the court-fee payable by her according to law. It was contended by the

plaintiff that ag there was no decision by the City Civil Judge u/s 12, Court-fee Act, the appellate Court had no power u/s 12(2) of that Act to

require her to pay the additional court-fee. The learned Judges held that the act of the sheristadar in accepting the plaint amounted to a decision by

the City Civil Judge as to the court-fee payable on the plaint u/s 12(i), Court-fees Act, and therefore the Taxing Officer had jurisdiction u/s 12(ii) to

insist upon the payment of the difference. At p. 613, Devadoss J. observes ;

We bold that when a Court receives a plaint, petition or any other pleading and files it as properly stamped its act amounts to a decision that the

proper court-fee has been paid. If according to the practice prevailing in the Courts the chief ministerial officer files a plaint, or a petition, or other

pleading, as being properly stamped or that proper court-foe has been paid, his aot is an act of the Court within the meaning of Section 12, Clause

(1).

At p. 615, Wallace J. observes :

The wording of the section offers no difficulty since, in any eaee, the trying Court must decide the question of court-fee implicitly or explicitly,

before it can proceed to try the suit. If the Court is not satisfied that the plaint is properly stamped it muet disimiss the suit unless the proper stamp-

fee is paid--See Order 7, Rule 11 (c). If the question is not explicitly raised and the Court proceeds with the trial, the Court has implicitly decided

that the stamp is sufficient. If the parties of the Taxing Officer specifically raise the point then the Court gives an explicit decision thereon. In either

case, there is a decision of the Court.

The observations of the learned Judges are, in our view, rather wide. We agree with the learned Judges in so far as they held that there Should be

a decision of the Court u/s 12(i). But we cannot agree with them when they said that the act of the ministerial officer could be attributed to the

Judge. To have finality u/s 12(i), the Judge himself must bring his mind to bear on the question.

The scope of the section was considered by Venkatasubba Rao J. with his usual clarity, in Lakshmana Aiyar v. Palaniappa Chettiar, 69 M. L. J.

479: AIR 1935 Mad. 927. In that case the plaint was filed with a certain court-fee and the officer of the Court entrusted with the duty of checking

the stamp raised the objection that a higher court-fee was payable on the amount due to the plaintiff. The plaintiff contended that his valuation was

correct and that contention was upheld by the Subordinate Judge. At a later stage, the defendant raised the objection as to court-fee, but the

previous decision was confirmed. When the suit was transferred to the file of the District Judge, the same question was raised again by way of an

issue and the District Judge held that the original order was final. But a succeeding District Judge again considered the sufficiency of the court-fee

on the initiative of the court-fee examiner and held that the court-fee paid was not sufficient. It is manifest from the aforesaid facts that the first

order of the Court was a decision in the sense that the learned Judge applied his mind to the question and gave his decision thereon. At p. 482 the

learned Judge observes:

The Court while making an order nnder Section 12 must apply its mind to the question and give a considered decision. It is said that some Judges

rarely bestow at that stage the attention the question deserves and are content to endorse the office note ; such practice if it exists, is opposed to

the plain intention of the Act and must be condemned. The question in each case is, whether the order is one intended to be final or merely

provisional.

The learned Judge points out that, under the aforesaid provisions, there is no warrant for holding that either the Government or the opposite party

should be heard before a decision is made.

In Sadasivam Pillai and Others Vs. Varadaraja Odayar and Others, , Venkataramana Eao J. also accepts the principles laid down in

Lakshmana Aiyar v. Palaniappa Chettiar, 69 M. L. J. 479: A.I R. 1935 Mad. 927. According to the learned Judge, if, on an objection taken by

the office or by a defendant, a Court applies its mind and gives a considered decision, it is final and its power to revise the valuation is at an end.

In In Re: Chukka Durgiah, , Pandrang Row J. follows the earlier decisions. In that case, the Court had passed a judicial order fixing the correct

fee payable on a memorandum of appeal. At a later stage an attempt was made to reopen that order, but the learned Judge held that it was not

open to the Court to vary the order once passed.

The same point was again raised before King J. in Vanguri Mahalakshmamma Vs. Vanguri Venkatanarayanamurthi (died) and Others, . The

plaintiff in that case appealed against the decree by the District Munsif dismissing her suit. On 3-3-1937 the Subordinate Judge called upon her to

pay the court-fee for the prayer in the plaint in the lower Court for cancellation of the release deed. That court-fee was paid on 5-4-1937. The

appeal remained pending for another two years and came up for hearing in 1939. The Subordinate Judge''s successor reopened the matter and

directed further court-fee to be paid. In holding that the successor had no power to reopen the matter, King J. has stated the law succinctly at p.

799 :

It is argued for the respondents here that Section 12(1) makes final only a decision which has been finally arrived at by the Oourt after both

parties have been heard and that the phrase ''shall be final as between the parties to the suit'' would be meaningless unless this were the true

interpretation of the word ''decision.'' I am not able to accept this argument. It seems to me that it would have been vtry easy for the Legislature to

have laid it down that no final decision on a question of court-fee shall be given unless both parties are heard if that had been the intention of the

Legislature, The word ''decided'' and the word ''decision'' are here given without any qualification at all and the; must clearly apply to any

adjudication by the Court whether both parties have been heard or only one party has been heard or even if no party at all has been heard. The

only essential ts that the Court should apply its mind to the questions at issue in arriving at the true calculation of the court fee.

We respectfully accept the above passage as the correct statement of the law on the subject.

There are two unreporfeed decisions bearing on the question, one, by Byera J., and the other by Bell J. In C. R. P. No. 1310 of 1945, that

came up before Byers J. the facts are as follows. The petitioner brought a suit for possession of certain lanka lands. He valued the suit at a total

figure of RS. 25,000. The plaint was returned for details of the valuation. After some delay, when these defects were re. medied, the plaint was

accepted with a court-fee of Rs. 2032-7-0. After the defendant appeared, he raised the question of the correctness of the court-fee and the matter

was again put in issue and the District Judge held that the court-fee paid was inadequate. It was contended before Byers J. that by the acceptance

of the plaint as properly stamped, the Court had given its decision within the meaning of Section 12(1), Court-fees Act, and therefore, it was no

longer open to the trial Court to go into the matter. The learned Judge rejected the plea that the acceptance of the plaint by the head ministerial

officer as correctly stamped precludes the presiding officer from later entertaining any objection in the course of the trial and giving a Judicial

decision on the correctness of the court-fee paid. Bell J. in C. R. P. Nos. 562 and 563 of 1945, applied the same principles to the facts of that

case.

The latest decision on this subject is that of Mack J. in Pydah Suryanarayanamurthy Vs. Pydah Ramakrishnayya and Others, . In that case, in a

suit for dissolution of partnership and accounts a decree was passed against the defendant. The defendant preferred an appeal and in the appellate

Court paid court-foe adopting the tentative valuation in the plaint. The District Judge accepted the valuation and directed the appeal to be

numbered. But, subsequently, on the objection of the Court-fee Examiner the District Judge upholding his view point, directed the deficit court-fee

to be paid. The learned Judge held that the earlier order of the District Judge, admitting fche appeal, was not considered order and therefore it was

not final and binding between the parties within, the meaning of Section 12(1), Court-fees Act. Thafc view was sufficient to dispose of the revision

petition before him. But we cannot agree with his wide observations that Section 12(1) contemplated a decision after hearing the parties.

It is no doubt true that the Allahabad High Court took the view that, for a decision to be final, it must be a Judicial decision based upon a

hearing in which the general Judicial maxim ''Audi alteram partem'' has been observed. In Amjad Ali v. Muhamad Israil, 20 ALL. 11 : 1897 A. W.

N. 157 , a Full Bench of that Court held that the decision of the Court on a question of court-fee payable on a plaint or memorandum of appeal

which is to be ''final as between the parties to the suit'' must be a decision made between the parties on the record and after they have had an

opportunity of being heard, and not a decision based upon the report of a Munsarim before the plaint or memorandum of appeal is filed and

therefore before any parties are before fche Court. The Nagpur High Court took much the same view in Mt. Gangoo v. Mt. Saloo, I. L. R. 1942

Nag. 432 : A. I. R. 1941 Nag. 217. But, for the reasons mentioned above, we prefer to follow the view expressed in Vanguri Mahalakshmamma

Vs. Vanguri Venkatanarayanamurthi (died) and Others, by King J. as it is in accord with the provisions of the Act.

From the foregoing review of the cases and the consideration of the relevant provisions, the following statement of law may be extracted.

Under the Act, the question of court-fee should be decided by the Court at the inception before the plaint is taken on file. It accords with law and

good sense. Section 6 enjoins that no document--which certainly includes a plaint--should be received unless fche full fee is paid. Section 12(1)

says that any question relating to valuation shall be decided by the Court in which the suit or the memorandum of appeal, as the case may be, is

filed. A combined reading of Sections 6 and 12 shows that the object of the section is to have the question decided at the earliest point of time

before the plaint is admitted. Section 12(ii) provides a safeguard in the interests of revenue against wrong decisions. The fact that the word

''decision'' is not circumscribed by any rule of procedure, such as notice to the Government or to the defendant, is also indicative of the same

intention. Indeed, as observed by the Judicial Committee in Rachappa Subba Rao v. Siddappa Venkat Rao, 43 Bom. 507 : A. I. R. 1918 P. C.

188 the Act was not intended to arm a litigant with a weapon of technicality. A decision at the inception of the suit is also advantageous from a

different aspect, namely, from the standpoint of the litigant. If he is allowed to proceed with the suit and incur expenditure for some years, on the

basis that the fee paid by him is correct, it would be un-fair to demand from him a heavy court-fee at a very late stage. This would upset the

calculations of a plaintiff with limited resources and would give an unfair advantage to the defendant by enabling him to stifle the suit without any

trial. Even from the standpoint of judicial time and recovery of revenue, it would be better to decide the question before the plaint is admitted as, if

additional court-fee is asked to be paid at a later stage, it may turn out that the plaintiff may not be able to meet the additional demand. It is

therefore, incumbent upon the Court to apply its mind to the question before the plaint or the appeal, as the case may be, is admitted, and decide

the question finally. It is, impossible to hold that a scrutiny fay a ministerial officer would tantamount to a decision by the Court within the meaning

of Section 12. The Judge must apply his mind and decide for himself whether the court. fee paid is correct or not. If so decided, it becomes final

and it cannot be reopened except u/s 12, Clause 2.

[13] The prevailing practice in the City Civil Courts has been described by Devadoss J. In re Lakshmi Ammal, 49 M. L. J. 608 : A. I. R. 1926

Mad 96 in the following manner :

The principal ministerial officer attached to this Court,viz., the Sheriatadar himself, personally receives all plaints and affixes the date stamp on

them as soon as they are received. He then goes through the plaints and scrutinises them carefully to ascertain whether they have been presented in

time and whether they have been properly framed or stamped .... It is only in cases where the principal ministerial officer feels any doubt and puts

up the oases for formal orders by the Judge that the Judge applies himself to the question and gives his personal decision .....

The procedure now adopted in the Subordinate Courts in this State is also similar. In our view, this practice is not supported by the provisions of

the Act. Nor can it be justified on equitable grounds. If this procedure be followed it would be like a Damocles sword hanging on the plaintiff

threatening to descend on him at any stage. It would be an unfair weapon in the hands of a defendant to be made use of when his case is devoid of

merits. This practice might be supported on the assumption unwarranted in our view that the Judge could not rightly decide the point without the

help of the Court-fee Examiner. Perhaps this practice also developed because at the time when the plaint was filed the Subordinate Judges did not

apply their minds, but merely relied on the ministerial officers to scrutinise the plaint with theconfidence that when he went wrong, the defendant,

after notice was given to him, would raise the question once again. The sooner this practice is given up the better it would be in the interests of

judicial administration. We hope and trust that the Subordinate Judges would hereafter decide the question of court-fee before the plaint is allowed

to be filed.

Mr. Rama Rao, the learned counsel for the petitioner does not seriously question the aforesaid principles. Indeed, he relies upon the judgment

of King J. and presses on us to hold that in the instant case, the Subordinate Judge applied his mind to the question of court-fee before he directed

notice to be issued to the defendants. This argument had some plausibility as the Subordinate Judge signed the first two endorsements dated 24-6-

1949 and 6-7-1949 pointing out that the court-fee paid by the plaintiffs was not correct. But knowing, as we do the practice obtaining in the

mofussil, we cannot bold that the Subordinate Judge applied his mind on those two occasions. The returns were in fact made only by the ministerial

officer though the initials of the Subordinate Judge were taken on the returns. That this was so is apparent from the recitals in the third endorsement

dated 16-7-1949. The Sheristadar considered the explanation offered by the plaintiffs pleader and made an endorsement that the correct fee was

affixed and therefore the plaint may be filed. The next day, under the order ''Issue summons to the defendants'', the signature of the Subordinate

Judge is found A perusal of the original plaint shows that it was the usual stamp that was used with the initials of the Judge. It may be said on the

facts of the case that the ministerial officer scrutinised the correctness of the court-fee pa;d. But we cannot say that the learned Subordinate Judge

applied his mind and came to the conclusion that the court-fee paid was correct. We, therefore, hold that there waa no decision by the

Subordinate Judge within the meaning of Section 19(1), and that, therefore, it was open to the Subordinate Judge to reconsider the question.

It is then argued that the court-fee paid was correct. The learned . Subordinate Judge held that the suit was for possession of a specific plot

and therefore the court-fee should be paid on the market value of the B schedule properties. He relied in support of his view on the Full Bench

decision in P. Kesanna Vs. Boya Bala Gangappa and Another, . In that case, Section 7(v)(d), Court-fees Act, and the notification issued by the

Governor-General-in-Council and that issued by the Provincial Government were considered. Section 7(v)(d), Court-fees Act, says that in suits

for the possession of land, bouses and gardens, the court-fee shall be according to the value of the subject-matter, and where the land forms part

of an estate paying revenue to Government, but is not a definite share of tbe estate and is not separately assessed, the value shall be deemed to be

tbe market value of tbe land. But by the notifications it was provided that, when a part of an estate paying annual revenue to the Government under

a settlement which is not permanent is recorded in the Collector''s register as separately assessed with such revenue, the value of tbe subject-

matter of a suit for tbe possession of a fractional share of that part shall, for the purposes of the computation of the court-fee chargeable in the suit,

be deemed not to exceed ten times such portion of the revenue separately assessed on that part as may be rateably payable in respect of the share.

In that case a suit was filed to recover the properties which had been allotted to the plaintiff at the partition. The learned Judges rejected the

contention that a fractional share in the notification covered both a definite fraction and also an indefinite fraction, and laid down a simple test for

tbe application of the section and the notifications. The test laid down by them is found at p. 647, They say :

What the Court has to look at is the relief which the plaintiff seeks. If he is asking to be put in possession of itnmoveable property the boundaries

of which are indicated, as here, the case falls u/s 7(v)(d), Court-fees Act. In such circumstances he is not asking lor a ''share''. He is asking the

Court to give him possession of what has already fallen to him. It is only when he is seeking possession of property as a fractional share of a

portion of an estate that the notification applies.

In the present plaint, the Schedule B property is described as Zamindari Zeroyati land of 38 acres and 2 1/2 cents in extent specified within

boundaries. This is obviously a specified plot, which can be put in possession of the plaintiff without any partition. But Mr. Rama Rao argued that

as the plaintiffs alleged in the plaint that the B schedule property was an undivided southern half of a big plot and that tbey were entitled to have

their southern half separated and to be put in separate possession of the same, the suit was really for partition and possession of their half share,

and therefore was covered by the notification. The words ''fractional share'' are words of well-known connotation. A specific property with

definite boundaries can never be a fractional share of a property, though at one time it might have formed part of a larger extent. A fractional share

predicates that the owner of tbat share is entitled to every bit of the total extent of his snare. Till a partition is held and it specified part is allotted to

him, he would be entitled to a fractional share of the whole. When the properties are allotted to his share, he becomes the owner of tbat specified

plot allotted to him, In the latter case, the suit for recovery would only be in the words of tbe Full Bench ""for the possession of the property the

boundaries of which are indicated."" If, as a matter of fact, the property, which is the subject-matter of the suit, is a specific property with

boundaries the plaintiff cannot be allowed, by clever draft-manship, to evade tbe payment of court-fees. We have no doubt on a reading of the

plaint, tbat what the plaintiffs wanted was possession of a specific plot of land with boundaries which they had purchased from the defendants.

We may point out that by reason of the Full Bench decision many anomalies are introduced in the application of Section 7(v)(d) and the

notification issued by the Government. In a suit for possession of a specified plot a larger court-fee may be payable, whereas for partition and

possession of a fractional share in regard to a larger extent, a smaller court-fee may suffice. In the case of a fractional sbare, a suit for its recovery

may be filed in a District Munsif''s Court whereas for a small extent, if the property is specified one with boundaries, it will have to be filed in tbe

Subordinate Judge''s Court. This situation is not only illogical but sometimes make the members of the litigant public feel its oppressiveness by

contrast. Though this decision was made as early as 6-1-1947, no attempt has yet been made by the Legislatures to remove tbe anomalies,

without at the same time over-burdening tbe litigant public.

In the result this civil revision petition is dismissed with costs. Two months time granted for payment of additional court-fee.