Jadubansi Sahay and Others vs Barhamdeo Narayan Singh and Others

James, J.—When the memorandum of appeal was filed in this case the stamp report was to the effect that it was insufficiently stamped. A reference was made to the taxing Judge, who held that the memorandum of appeal was insufficiently stamped by Rs. 165, whereupon the appellant was required to make good the deficit.

The appellant in this Court had also appealed in the lower Court, where his memorandum of appeal had been stamped with a stamp of the same value as that which his memorandum bore when it was presented to the High Court. It followed therefore from the decision of the taxing Judge that there was a deficit of Rs. 165 on the memorandum of first appeal. It does not appear that the appellant was specially directed to make this deficit good; but after the decision of the taxing Judge had been given on 13th July 1925, he filed court-fee stamps to the value of Rs. 330.

If the view of the taxing Judge was correct, the plaint also was insufficiently stamped; but when the appeal came before the Division Bench for hearing it was held that the plaint had been sufficiently stamped. On the strength of this decision we are now asked to hold that the view of the taxing Judge was wrong, and that there was no deficit on the appellant''s memorandum of first appeal.

On a similar application, in Chandradhari Singh v. Tipan Prasad Singh [1918] 3 Pat. 452. Sir Dawson Miller, directed that a certificate should be issued for presentation to the revenue authorities following the precedent established in the Calcutta High Court by the case of Harihar Guru v. Ananda Mahanty [1912] 40 Cal. 365 and a certificate was duly prepared by the Registrar of this Court following the Calcutta precedent.

If this application had been presented within a reasonable time after the decision in appeal, we might have felt some embarrassment in considering which of the two views was correct, that of the Division Bench or that of the taxing Judge; but I consider that this application must be regarded as having been filed too late. If reference is made to the report of the case of Harihar Guru v. Ananda Mahanty [1912] 40 Cal. 365 which I have mentioned above, which has been treated as a precedent for the preparation of certificates in this Court in similar cases, it will be seen that the Board of Revenue ultimately sanctioned the refund under note 3 to Rule 35 at pp. 49 and 50 of the Stamp Manual, 1911. Rule 35 made provision for the refund in special circumstances f impressed court-fee stamps and of court-fee adhesive labels, but by that rule the application ordinarily had to be made within six months, though there was a provision that in special cases refund might be allowed within a year from the date on which the stamps were spoilt or were rendered useless. In the present case the judgment of the Bench was delivered on 24th November 1927, but the application for refund of the value of the court-fee stamps was not made till 15th April 1930, so that the petitioner waited for more than two years before he made his application.

The granting of refund by Government in cases of this kind is always a matter of grace; and in view of the fact that the Stamp Act and the rules under the Act require that applications shall be made within a reasonable period, I do not consider that when the petitioner has waited for over two years after the decision of his case by the Division Bench, his application for a certificate to enable him to apply for a refund of court fees should be granted. I consider therefore that this application'' should be rejected.

Chatterji, J.

I agree.