Hasan Mirza and Another vs Syed Bakar Hasan

Dhavle, J.—This is a reference by the taxing officer of this Court to me as taxing Judge and arises out of First Appeal No. 101 of 1941. The stamp reporter first reported through inadvertence that the court-fee paid on the memorandum of appeal was sufficient, and the result was that under Rule 16 in chap. 7 of the Rules of this High Court the Registrar admitted the appeal and ordered notice to issue to the respondent. The stamp reporter I detected his mistake a few days later and had the record sent for. After examining the record he submitted a fresh stamp report under Rule 19 in the same chapter to the effect that the memorandum of appeal should bear a further court-fee of Rs. 2115. This report was contested before the taxing officer on three grounds: (a) that the stamp reporter was functus officio, (b) that he had no right to submit a revised report after the appeal had been admitted by the Registrar, and (e) that the taxing officer had no jurisdiction at this stage to make an order compelling the appellants to make good the deficit. The taxing officer held with reference to the first two of these objections that the stamp reporter had power under Rule 19 to reopen the question of the sufficiency of the court, fees filed so long as the appeal remained pending, as was decided by the taxing Judge (James J.) in Sideshwari Prasad v. Ram Kumari Rai AIR 1933 Pat. 234. As regards the third objection raised by the appellants the taxing officer came to the conclusion that in view of Section 28, Court-fees Act, this was a matter not for him but for the taxing Judge to decide.

The learned advocate for the appellants began before me by urging that the respondents have no locus standi in this matter and should not be heard. This contention was rested on the observation in such cases as Baijnath Prasad Singh v Umeshwar Singh AIR 1937 Pat. 550 and Ramkhelawan Sahu v. Surendra Sahi AIR 1938 Pat. 22, that the question of the court-fee payable is a question not between the parties but between the Crown and the plaintiff. The observation was, however, not meant to deny the opposing party any locus standi altogether, and it does not appear that the opposing party was in fact not heard in the eases referred to. The opposing party is actually interested in a matter of this kind in more than one way, though provisions like Section 12, Court-fees Act (making a decision of the Court as regards valuation for the purpose of determining the'' amount of any court-fee final as between the parties) and Section 11, Suits Valuation Act (imposing several restrictions on raising the question of jurisdiction) serve to indicate how this party is not entitled to pursue his interest in the matter of court-fees as freely as in ordinary issues between the parties. In Chunni Lal v. Sheo Charan Lal AIR 725 All. 787, it was held that the plaintiffs respondents were entitled at the hearing of an appeal by the High Court to raise the objection that the appeal had not been properly valued, the reason given being that

the valuation affects not only the jurisdiction of the Court but also the amount of costs and legal fees which would be taxable. In a ease where there has been a reference to the taxing officer or the taxing Judge the question of insufficiency of the court-fees as paid on the memorandum of appeal cannot be raised again at the time of the hearing of the appeal, for Section 5, Court-fees Act, would clearly be a bar to any such reconsideration. But where no reference u/s 5 has been made at all, the Court which hears the appeal must decide it.

It must, therefore, be held that the (defendants) respondents have a right to be heard in this matter. This view does not in any way conflict with the view taken in F.A. No. 98 of 19346 (decided by a Bench of three Judges of this Court on 2nd March 1986), to which the learned advocate for the appellants has referred. What was held in that case was that a decision of the taxing officer u/s 5, Court-fees Act, was binding notwithstanding the fact that it was arrived at without giving an opportunity to a respondent who desired to raise the point at the hearing of the appeal. In that case the taxing officer had functioned u/s 5, Court-fees Act, before the admission of the appeal, and therefore, in the absence of the respondents. In the present case the question has arisen after the admission of the appeal and after the appearance of the respondents, and though the question is one of court-fees, and is thus primarily one between the appellants and the Crown, it cannot properly be said that it does not affect the respondents at all and that they cannot be heard. The learned advocate next urged that Section 5, Court-fees Act, can have no application after an appeal has been admitted that the decision of the taxing Judge in Sideshwari Prasad v. Ram Kumari Rai AIR 1933 Pat. 234 was really based on a concession by the appellant regarding the applicability of the Section after the admission of the appeal, and that as the appeal has been admitted, the question of the court-fees can only be dealt with u/s 28, Court-fees Act, by a Judge of the Court, and not by the Taxing Officer (or at his instance by the Taxing Judge) u/s 5. Now, it was actually contended in Sideshwari Prasad v. Ram Kumari Rai AIR 1933 Pat. 234 that:

When the Stamp Reporter has once accepted an appeal as properly stamped and when it has been admitted and registered, the Stamp Reporter should be treated as functus officio, and he should not be % regarded as entitled to re-open the question of sufficiency of the court-fee.

This contention was rejected by James J. after referring to II. 19, with the observation that

there is no doubt that under this rule the Stamp Reporter would be required to take action if he found that a memorandum of appeal which was insufficiently stamped had been accepted by mistake or inadvertence as sufficiently stamped; and that it cannot be said that when the appeal is once admitted and registered, the functions of the Stamp Reporter are necessarily at an end.

It was after this expression of opinion that the learned Judge proceeded to deal u/s 5 with another contention of the appellants namely, that the rule applies only where an insufficiently stamped document has been accepted by mistake or inadvertence but that the memorandum of appeal in question could not properly be regarded as so accepted, the original stamp report being in accordance with the decision of an earlier Taxing Judge. It does not, however, appear to have been argued in that ease that the Taxing Officer and the Taxing Judge who function u/s 5 have no jurisdiction, after the admission of the appeal, to deal with the matter. But It. 19 refers to the Taxing Officer besides the Stamp Reporter, and the power of the former to decide the question of court-fees is only found in Section 5 of the Act. Mr. De has contended that as Rule 19 occurs in a chapter which is headed "Procedure Before Admission," it should, therefore, be taken to be inapplicable after admission. This contention is plainly untenable if only because such Rules as 20, 21, 23, 24 and in particular, 25 in the same chapter clearly refer to what may be called the post-admission stage. The language of the rule is, moreover, perfectly general:

Whenever the Stamp Reporter finds that a document which ought to bear a stamp under the Court-fees Act...has been through mistake or inadvertence received, filed or used in the Court without being properly stamped....

(The italics are mine). The expression "received, filed or used" also occurs in Section 28, Court-fees Act, and it has never been doubted that it covers questions arising after the admission of an appeal. There is, therefore, no reason whatsoever for doubting the correctness of the view taken in Sideshwari Prasad v. Ram Kumari Rai AIR 1933 Pat. 234 that

the Stamp Reporter has power to re-open the question of whether a document is sufficiently stamped, where the matter has not already been decided by the Taxing officer, so long as the appeal may remain pending.

And if the Stamp Reporter thus have the power to re-open the matter even after the admission of an appeal, the rule requires i him to report the fact to the pleader who presented the document, and the pleader is not to dispute the accuracy of the report of the Stamp Reporter unless within three weeks of his initialling the report, "or within such further time as the Taxing Officer may allow," he disputes its accuracy. The rule does not lay down before whom the accuracy of the stamp report is to be disputed; but there is a note under the rule that the Chief Justice has been pleased to declare that the Registrar of the High Court shall be the Taxing Officer within the meaning of Section 5, Court-fees Act (7 of 1870). The Taxing Officer referred to in the rule is thus clearly intended to be no other than the officer referred to under that designation in Section 5, Court-fees Act, an officer who functions under this section

when any difference arises between the officer whose duty it is to see that any fee is paid under this chapter (viz., our Stamp Reporter) and any suitor or attorney as to the necessity of paying a fee or the amount thereof.

Here again the language used contains nothing to confine the duty imposed upon the Taxing Officer to the pre-admission stage. It is also well settled that the mere admission of a plaint or appeal does not operate to deprive the Court of the power to reject it under Order 7, Rule 11, Civil P.C., (Clause (c) of which deals with insufficient court-fees): Padmanund Singh v. Anant Lal (07) 34 Cal. 20 and Ram Sawari Kuer v. Motiraj Kuer AIR 1939 Pat. 83 . The admission of appeal, moreover, by the Registrar, under Rule 16 of our rules in chap. 7, in no sense involves any decision by the taxing officer u/s 5 of the Act: Kasturi Chetti v. Deputy Collector, Bellary (98) 21 Mad. 269 . In In Re: Bhubaneswur Trigunait and Others, , dealing with the decision of the taxing officer under Rule 4 of chap. 35 of the Rules of the Calcutta High Court relating to an original letters of administration matter, Rankin J. (sitting with Sanderson C.J.) disagreed with the proposition that the jurisdiction of the taxing officer arises like the jurisdiction of an arbitrator upon a difference of opinion between a court clerk and a suitor and upon some sort of formal reference to decide that dispute. Be that as it may, in the case before us, the taxing officer had no occasion to function at all when as Registrar he admitted the appeal under Rule 16. If Rule 19 entitles the stamp reporter to re-open the question of court-fees even after the admission of an appeal by the Registrar, as was held in Sideshwari Prasad v. Ram Kumari Rai AIR 1933 Pat. 234, and the appellant''s pleader does not accept the fresh stamp report, the rule with the note clearly contemplates a reference of the dispute to the taxing officer of Section 5, Court-fees Act. None I of the cases brought to my notice in which it was held that Section 28 applies where there is no decision by the taxing officer or the taxing Judge u/s 5--e.g. 21 Kasturi Chetti v. Deputy Collector, Bellary (98) 21 Mad. 269, Jugal Pershad Singh v. Parbhu Narain Jha (10) 37 Cal. 914, Chunni Lal v. Sheo Charan Lal AIR 725 All. 787, Kedar Nath Goenka v. Chandra Mauleshwar Prasad Singh AIR 1932 Pat. 228 had occasion to deal with the power of the taxing officer on a stamp report after the admission of the appeal, except Abdul Samad Khan Vs. Anjuman Islamia and Another where, however, the taxing officer had declined to enter into the merits of a belated objection by the appellant and the learned Judges held that that was not a decision within Section 5 so as to bar the application of Section 28. Having regard to the scheme of the Act, I see no reason to hold that the admission of an appeal by the Registrar under Rule 16 of Chap. 7 (at a time when no dispute has arisen between the stamp reporter and the appellant) suffices to prevent the taxing officer from functioning u/s 5 when such a dispute arises subsequently. If he should decide the dispute now referred to him u/s 5 adversely to the appellant, he can only call upon the latter to make good the deficit found and in the event of his failure, place the matter before the Bench for orders. The Bench will then Act under Order 7, Rule 11 read with Section 107(2), Civil P.C. Where the taxing officer has given his decision u/s 5 as regards the fee payable on a memorandum of appeal to this Court, that decision is final and cannot be questioned even in the exercise of the powers vested in the Court u/s 28.

In the present case the taxing officer has merely referred to the taxing Judge the appellant''s objection that the former has no jurisdiction at this stage to give effect to the fresh stamp report. In my opinion, Section 5 enables the taxing officer to deal with this question as well, and Section 28 does not take away his jurisdiction under the former section, applying as it does only when the question is not raised by a reference by (or to) the taxing officer u/s 5-- Sharfuddin Vs. M. Khadim Ali Khan and Others . u/s 5, however, it was also competent to him to refer the point--the question of his jurisdiction after admission--to the taxing Judge if (as he evidently did) he thought the question to be one of general importance. I hold that he has jurisdiction u/s 5 to deal with the revised stamp report. The matter must, therefore, now go back to him for deciding the amount of court-fees due on the memorandum of appeal.

I have also been addressed on this last question, but I do not propose to decide it in view of the limited character of the reference made by the taxing officer. It may, however, be useful to all concerned, if I draw attention first to Nandkishore v. Achambit Kumar AIR 1937 Pat. 514, in which James J., pointed out, how from the institution of this Court the stamp reporter and the taxing officer, acting under the directions from time to time given by the taxing Judge, have followed what he as taxing Judge considered the correct procedure in such matters determining the proper court-fee payable on an appreciation of what the appellant really sought, without penalising him merely because he may have asked for a declaration which may be unnecessary, but astute to see that he does not escape liability by a vague and indefinite statement of facts or by adopting such expedients as, for instance, bringing what is essentially a title suit in the guise of a partition suit. What is to be valued now is, of course, not the suit but the appeal. The whole suit has been dismissed on the ground among others that the value of the properties covered by the suit was Rs. 1,57,155 and that the plaintiffs should have paid ad valorem court-fees on this sum instead of their valuation of Rs. 6000. The valuation of the suit as found by the lower Court is one of the grounds of appeal, as pointed out by the stamp reporter.

The learned advocate for the appellants has urged that the valuation arrived at by the lower Court includes a share of four annas odd in mauza Siwaisingpur which was not included in the suit. There was no dispute below about the category in which the suit fell; even before the addition of the prayer for a permanent injunction, which was held in Deokali Koer v. Kedar Nath (12) 39 Cal. 704, to be a form of consequential relief, the suit was one within Section 7(iv)(c), Court-foes Act, as several of the declarations prayed for in the plaint after the first declaration (regarding the alleged wakf) formed consequential relief--compare Ugramohan v. Lachmi Prasad AIR 1923 Pat. 100, Surendra Narain Singh v. Sham Bihari Singh AIR 1923 Pat. 404 and Muhammad Fahimal Huq v. Jagat Ballav Ghosh AIR 1923 Pat. 475. As members of the Shia public the plaintiffs claimed to bring the suit, "the expenses whereof shall be paid from the usufruct of Schedule A property," and sought declarations not only that the whole of that property was waqf for religious purposes costing Rs. 600 a year but also (as a consequence) that the property was not bound by a mortgage decree and execution sale and a private sale, etc. It was not a suit for possession, as was the ease in Ramkhelawan Sahu v. Surendra Sahi AIR 1938 Pat. 22, a Full Bench decision on which the learned advocate for the appellants has placed much reliance. I had occasion in civil Revn. No. 414 of 1939, decided on 6th November 1940, to observe that the point that necessitated the reference to the Full Bench in that case seems to have been whether certain cases of this Court had been rightly decided in so far as they held that the High Court will not interfere in revision in cases where the lower Court has applied Sub-section (iv)(c) instead of (v) of Section 7, Court-fees Act.

Their Lordships answered this question in the negative, and then after some general observations about suits for declaration of title and possession [or, as was said in Sital Prasad v. Ramdas AIR 1939 Pat. 274, after making some attempt to define the kind of declaration which is affected by Section 7(iv)(c)] examined the facts of the two suits before them and came to the conclusion that they were both suits for possession within Section 7(v) and not within Section 7(iv)(c), Court-fees Act. The declaration of wakf in the present case happens to be within the examples of "declarations properly so called" given by their Lordships, being, "a declaration as to the meaning of a will or a trust deed"; but it is quite clear that the Full Bench did not attempt to give an exhaustive enumeration of the declarations that the Courts may make, as they would otherwise have mentioned the declarations granted by their Lordships of the Privy Council, referred to by Sulaiman C.J. in the Full Bench decision in Sri Krishna Chandra Vs. Mahabir Prasad and Others , "which, strictly speaking, did not fall within the purview of Section 42, Specific Relief Act." While deciding that the suits they were dealing with fell not within Clause (iv)(c) but within Clause (v) of Section 7, the Full Bench incidentally said that they agreed with the opinion of Sir George Rankin C.J. sitting as the taxing Judge in In Re: Court-fee Act and Kalipada Mukharjee, on the question of valuation.

This particular point does not, however, appear to have been raised before them, nor was any reference made in the arguments or in the judgment to the settled course of decisions in this Court following Umatul Batul v. Nauji Kuar (07) 6 C.L.J. 427, see for example Ram Sekhar Prasad Singh v. Sheonandan Dubey AIR 1923 Pat. 137 and Ramcharitar Pandey v. Basgit Rai AIR 1932 Pat. 9 and also Brij Krishna Das v. Murli Rai AIR 1920 Pat. 656, besides Narayangunj Central Co-operative Sale and Supply Society Ltd. Vs. Mafizuddin Ahmed and Another, , in which the view taken in Umatul Batul v. Nauji Kuar (07) Cri.L.J. 427 which had been doubted by Rankin C.J. was reaffirmed by a Full Bench of five Judges in Calcutta. In Ram Sumran Prasad v. Gobind Das AIR 1922 Pat. 615, a Full Bench of five Judges of this Court (Das J. dissenting) said that:

Where the plaintiff claims relief to which he is not entitled until name decree or alienation of property which standi in his way has been avoided, or until his legal character or title, which has been called in question, has been declared by a decree of the Court, it has generally been held that such a suit comes under Clause (iv)(c) of the Section (Section 7) even though a declaration which it is necessary for him to obtain before further relief can be granted has not been in terms asked for in the plaint.

(The italics are mine). We may take it that this still continues to be the law, and that the Full Bench in Ramkhelawan Sahu v. Surendra Sahi AIR 1938 Pat. 22 did not intend to overrule the Patna decisions, as regards the valuation in such cases, which I have already cited and to which no reference was made by the learned Judges doubtless because they were not dealing with this point. I have already remarked that what the taxing officer is concerned with is the value of the appeal and not the value of the suit. The Advocate General had contended that the value of the appeal here is the value of the relief denied by the lower Court and that the judgment of the lower Court is binding upon the appellants unless, of course, it is set aside in appeal. It does not seem to me that this need prevent the taxing officer from valuing the appeal on the lines already settled in this Court. The Bench which hears the appeal may deal with the valuation of the suit u/s 12(ii), Court-fees Act, but as James J. observed in Sideshwari Prasad v. Ram Kumari Rai AIR 1933 Pat. 234

it must at least be regarded as doubtful whether the first part of Section 12, Court-fees Act, can be held to empower the Bench hearing the appeal to reject a memorandum as insufficiently stamped, in view of the remarks of Sir Dawson Miller in Krishna Mohan Sinha v. Raghunandan Pande AIR 1925 Pat. 392, when he expressed the opinion that the power of the High Court to decide the amount of the fee payable on a memorandum of appeal presented to the High Court has been delegated to the taxing officer and the taxing Judge.

The question raised by the stamp reporter is before the taxing officer u/s 5, Court-fees Act, so far as the fee of the memorandum of appeal is concerned, and it is for him to deal with it as provided in that section, now that the preliminary question of his jurisdiction has been decided against the appellants.