Jalam Singh vs Smt. Narain Kanwar and Others

Dwarka Prasad Gupta, J.—In these two special appeals an identical question relating to court fees has been raised and as such that matter is disposed of by a common order.

Both appeals arise out of a suit for partition which was partly decreed by the trial court. Both parties filed appeals which were heard by a learned Single Judge of this Court, who by his order dated February 1, 1984 dismissed the plaintiff''s appeal and allowed the defendant''s appeal, with the result that the plaintiff''s suit was dismissed in its, entirety. Now, the plaintiff has filed both the Special Appeals against the aforesaid judgment passed by the learned Single Judge dated February 1, 1984. Court fee of Rs. 10/- has been affixed on each one of the two appeals and the contention of the learned Counsel for the appellant is that court fee is payable on these appeals iup accordance with the provisions of Article 3(iii)(2)(a) of Schedule II of the Rajasthan Court Fees and Suits Valuation Act, 1961 (Act No. XXIII of 1961) (for short ''the Act'' hereinafter).

Mr. R.C. Maheshwari, learned Additional Government Advocate submitted that ad valorem court fee was payable on the appeals in accordance with the decision of the Division Bench of this Court in Sohalal v. Tulcha ILR 1971 Raj. 566, which view has subsequently been affirmed by another Division Bench of this Court in Mariyam v. Gulam Mohammed R.L.W 1984. 493. Mr. Bhoot appearing for the plaintiff-appellant drew our attention to an order passed by this Court on March 29, 1979 in Devi Singh v. Sushila Devi (D.B. Civil Special Appeal No. 8 of 1979 decided on March 29, 1979) which was subsequently followed by another Division Beach in Sohanlal v. Ishwarlal (D.B. Civil Special Appeal No. 3 of 1981 decided on May 8, 1981) and it was urged that the submission made by him that a fixed court fee of Rs. 10/- was payable under Article 3(iii)(2)(a) of Schedule II was accepted in the aforesaid decisions. It was urged by the learned Counsel for the appellant that an appeal lay u/s 18 of the Rajasthan High Court Ordinance, 1949 (for short ''the Ordinance'' here in after) against a ''judgment'' of a Single Judge of the High Court and in the case of an appeal against a judgment or order the court fee was payable under Article 3(iii) (2) of Schedule II. If the judgment of the learned Single Judge was passed in the exercise of appellate jurisdiction, then a court fee of Rs. 10/- was payable and in any other case a court fee of Rs. 100/-was payable on the memorandum of Special Appeal. It was also submitted by the learned Counsel that the special provision contained in Article 3 of Schedule II would apply to Special Appeals preferred against a judgment of a Single Judge of the High Court in preference to the general provisions contained in Section 47 of the Act. Learned Counsel also referred to the provisions of Section 9 of the Act particularly to the proviso thereof, wherein it has been provided that if the documents fall under two descriptions, one of which is special and another is general, the court fee chargeable shall be the fee appropriate to the special description. However, we are unable to agree with the argument advanced by the learned Counsel so far as Section 9 is concerned in as much as in the present case we are not dealing with a document which may fall within two or more descriptions.

In Kedarnath v. Sitaram I.L.R.1960 Raj. 1259 it was observed by a Division Bench of this Court that the word ''judgment'' as used in Section 18 of the Ordinance does not bear the same meaning which has been assigned to it u/s 2(9) of the Code of Civil Procedure, but it has been used in the sense of the law pronounced by the Court and not in the sense of the reasons which have led to that pronouncement. The same view was taken by another Division Bench of this Court in Sohanlal''s case(1) where in Jagat Narain, Chief Justice as he then was, observed as under:

The word "judgment" u/s 18 is a comprehensive one. It may be an appellate judgment of a learned Single Judge in respect of a decree or it may be a judgment in respect of an order having the force of a decree like the order u/s 47 or Section 144 of the Code of Civil Procedure. If the appellate judgment of the learned Single Judge is in respect of a decree then Court fee would be payable on the memorandum of special appeal under Article 1, Schedule I. If on the other hand the appellate judgment is in respect of the order which has the force of a decree like the order u/s 47 or Section 144, CPC then the Memorandum of appeal would be liable to a fixed court fee as prescribed under Article 3 of the Schedule II.

The aforesaid view was affirmed by another Division Bench if this Court in Mariyam''s case 1984 R.L.W. 493 wherein the observations quoted above from the decision of Sohanlal''s case ILR 1971 Raj. 566 were cited with approval. Thus, a ''judgment'' of a learned Single Judge which is made appealable u/s 18 of the Ordinance may be a judgment relating to a decree or may be a judgment relating to an order. In Section 2(9) of the CPC ''judgment'' has been defined as a statement given by the Judge of the grounds of a decree or order. Clause (2) of Section 2 CPC defines a decree as a formal expression of an adjudication which conclusively determines the rights of the parties as regards the court expressing it in respect of all or any of the matters in controversy in the suit. The word ''order'' has also been defined in Clause (14) of Section 2 of the CPC as a formal expression of any decision of a Civil Court which is not a decree. Thus, there is a clear distinction between a decree and an order as defined in the Code of Civil Procedure, as decree is the formal expression of an adjudication in a suit while an order is a formal expression of a decision which is not a decree. A judgment as defined u/s 2(9) CPC may be the basis of a decree, or an order. Then there are certain orders, as for example an order of rejection of a plaint under Order VII Rule II CPC or an order determining a question u/s 144 C.P.C. which are although orders falling within the category of ''orders'' but they have been included u/s 2(2) in the definition of a decree, by a deeming provision constituting legal fiction. An adjudication u/s 47 CPC, was also earlier included in the definition of a decree, prior to the CPC Amendment Act, 1976. Thus, to our mind Article 3 of Schedule II refers to an order which is not a decree and thus a judgment in respect of an order, appealable u/s 18 of Ordinance, would fall under Article 3(iii)(2) of Schedule II. The opening words of Article 3 are memorandum of appeal from and order... and not otherwise provided for. "Thus in order to fall within the purview of Article 3 of Schedule II, the memorandum of appeal must be from an order and must relate to an order which has not been otherwise provided for in the Act. Now, amongst the various categories specified in the Article 3, Clause (iii) deals with an appeal to the High Court from an order and item 2 thereof deals with an appeal from the judgment of a Single Judge of the High Court, when the appeal is from an order of a learned Single Judge of the High Court, as we have already pointed out above, a judgment may relate to an order or may relate to a decree. So what is covered in our opinion under Article 3(iii)(2) is a judgment which relate to an order passed by a learned Single Judge of the High Court and against which an appeal is filed u/s 18 of the Rajasthan High Court Ordinance Thus, it is clear that an appeal from a judgment which relates to a decree cannot fall within the ambit of Article 3(iii) (2) as Article 3 itself embraces within its fold only such appeals as are preferred against orders, including judgments relating to orders but not relating to decrees. It may be emphasised that the word "judgment" has been used in a comprehensive sense in Section 18 of the Ordinance and includes decrees and orders.

The second ingredient which should be fulfilled for attracting the application of Article 3 of Schedule II is that court fee in respect of such memorandum of appeal should not have been otherwise provided for. But where court fee has been specifically provided for in respect of a memorandum of appeal Under Article 1 of Schedule I, namely, in respect of an appeal from a decree, the application of Article 3 of Schedule II is wholly excluded. However, in the case of an appeal where in a fixed court fee is payable or in a case which is not covered by Article 1 of Schedule I, ad valorem court fee is not payable even in the case of an appeal filed u/s 47 of the Act. Article 3 of Schedule If may be considered to be a special provision, but it can be made applicable only when an appeal is from an order but in a case where an appeal is preferred against a decree or a judgment relating to a decree, Section 47 of the Act shall be applicable. In Sohanlal''s case ILR 1971 Raj. 566 the view which we are inclined to take was accepted as the correct view and it was held that in case of an appellate judgment relating to a decree, the court fee would be payable on the memorandum of special appeal under Article 1 of Schedule I. But in the case of an appellate judgment resulting in an order which may be an order u/s 47, or Section 144 C.P.C., fixed court fee as prescribed in Article 3 of Schedule II is leviable. The same view was taken in Mariyam''s case R.L.W 1984. 493 by another Division Bench of this Court, where the question was dealt with at considerable length Another Division Bench of this Court in Ruda Ram v. Mehar Singh (D.B. Civil Special Appeal No. 57 of 1984) also took the same view in its order passed on March 31, 1984. In Mariyam''s case R.L.W 1984. 493, the view taken in Sohanlal''s case(1) and Rudaram''s case (Supra) was adhered to and it was held that ad valorem court fee was payable in respect of a memorandum of appeal filed against a judgment relating to a decree, passed by a learned Single Judge of the High Court in exercise of appellate jurisdiction

We may also observed that the orders regarding court fees in Devisingh''s case (supra) and Rudaram''s case (supra) were passed ex parte without notice to the Government Advocate and without hearing him, as such they cannot constitute binding precedents. Learned Counsel for the appellant, however, laid much stress on the order passed by another Division Bench of this Court on May is, 1981 in second Sohanlal''s case (D.B. Civil Special Appeal No. of 1980). However, in that case, as pointed out in Mariyam''s case R.L.W 1984. 493, the earliest decision of Sohanlal''s case ILR (1971) Raj. 566 was not considered. Moreover, it appears from the order passed in second Sohan Lal''s case (supra) that the learned Judges thought as if the appeal was from a judgment and order of a learned Single Judge and as such they held that Article 3(iii)(a) was applicable, which will appear from the following observations made in that case:

We have given our best consideration to the above contention. In our opinion, the fee payable in this special appeal is provided in Article 3(iii)(2)(a) because it is an appeal from the judgment and order of a Single Judge of this Court in exercise of the appellate jurisdiction u/s 18 of the Ordinance which is a law for the time being in force.

Moreover, in that case their Lordships followed the observations made in Devisingh''s case (supra) without noticing the fact that the order in that case was passed ex parte. However, in any view of the matter, we are inclined to hold that the learned Judges passing the order dated May 8, 1981 in second Sohanlal''s case (supra) were bound to follow the earlier decision of the Division Bench in the first Sohanlal''s case ILR (1971) Raj. 566. It may also be observed that one of the learned Judges constituting the bench passing the order dated May 8, 1981 in second Sohanlal''s case (supra) was also a member of the Bench which decided Mariyam''s case R.L.W 1984. 493 and which has taken a contrary view and has followed the earlier decision of the Division Bench in first Sohanlal''s case ILR (1971) Raj. 566. As we find ourselves in agreement with the view taken by two Division Bench decisions of this Court in first Sohanlal''s case ILR (1971) Raj. 566 and in Mariyam''s case R.L.W 1984. 493, we would respectfully follow the decisions of those two Division Benches of this Court and hold that in the case of an appeal against a judgment of a learned Single Judge of the High Court resulting in a decree passed in exercise of appellate jurisdiction, ad valorem court fee is payable under Article 1 Schedule I read with Section 47 of the Act. If in the case of a judgment relating to a decree, passed in the exercise of appellate jurisdiction, ad valorem court fee is not payable then u/s 47 of the Act court fee which was paid in the court of first instance should be payable on the memorandum of special appeal.

In the present case, appeals have been preferred against a judgment relatable to a decree, passed in the exercise of appellate jurisdiction by a Single Judge of this Court, and so Article 3 of Schedule II is not applicable and in accordance with the provisions of Section 47 of the Act, the same court fee is payable on the memorandum of appeal which was affixed to the plaint filed by the appellant in the trial court.

Another question which was raised by the learned Counsel for the appellant was that because two appeals arise out of the same suit, separate court fees should not be payable. We are of the view that u/s 47 of the Act separate court fee is payable on each memorandum of appeal to the same extent as was paid in the court of the first instance on the plaint.

In the end, learned Counsel for the appellant prayed that the appellant may be allowed reasonable time to make up the deficiency in court fee in both the appeals. We allow the appellant three weeks'' time to make up the deficiency of the court fees in both the appeals.