Kishandas vs Parasram

Wanchoo, C.J.—The question, that has been raised before us, is as to proper court-fee to be paid on appeal under S. 40, Displaced Persons (Debts Adjustment) Act (No. 70 of 1951) (hereinafter called the Act).

The contention of Kishandas appellant is that the fee to be paid is Rs. 2/- only under Sch. II, Art. 11, Court-fees Act, while the Stamp Reporter contends that it should be under Art. 1, Sch. I, Court-fees Act.

Kishandas had filed an application under S. 5 of the Act for adjustment of his debts. The procedure for dealing with such applications is contained in the next following sections. Section 6 provides for rejection of the application if there are any formal defects in it, and it is not in conformity with S. 5. Then comes S. 7 which provides that if the application is in order, the Tribunal shall fix a date for hearing and give notice of it to the respondents. Section 8 provides for objection by respondents in the shape of written statement. Then comes S. 9 which is of importance and is as follows:

(1) If there is a dispute as to whether the applicant is a displaced person or not or as to the existence or the amount of the debt due to any creditor or the assets of any displaced debtor, the Tribunal shall decide the matter after taking such evidence as may be adduced by all the parties concerned and shall pass such decree in relation thereto as it thinks fit.

(2) If there is no such dispute or if the respondents do not appear or have no objection to the application being granted, the Tribunal may, after considering the evidence as placed before it, pass such decree in relation thereto as it thinks fit.

It is obvious from this scheme of the Act that if the application is not rejected under S. 6, it has to toe dealt with under S. 9, and there is no other method of dealing with it. Section 9 contains two sub-sections, and in both of them the Tribunal has to pass such decree as it thinks fit in relation to the facts and the evidence of the particular case before it. Learned counsel for Kishandas contends that if his application had been allowed, and the debts had been adjusted, there might have been a decree; but as his application has been dismissed, the result is that there is only an order and no decree. This distinction, however, has no significance in the present case, because under Sch. II, Art. 11 only those appeals, which are not preferred from a decree or an order having the force of a decree, can be filed on the court fee stamp of Rs. 2/-.

Other appeals, whether they are from decrees or from orders having the force of decrees, have to be stamped under Sch. I, Art. 1, unless there is some other specific provision for them, as for example Sch. II, Art. 17, which has, however, no application in the case before us. Schedule I, Art. 1 clearly provides for ad valorem court fees on memorandum of appeal presented to any civil or revenue court except those mentioned in S. 3 which again has no application to the facts of this case.

We are of opinion that S. 9(1) & (2) of the Act contemplate a decree. Where therefore the application is dismissed, the order dismissing the application must be taken as a decree, or, at any rate, an order having the force of a decree. It cannot, therefore, be said that the order in this case did not have the force of a decree, and that the court fee should be as provided in Sch. II, Art. 11.

Next it is urged that the court fee paid before the Tribunal was only eight annas and that the same principles should apply to the computation of court fee in the appellate court as apply in the trial court. In this connection reliance is paced on - ''Abdul Rahman v. A.B. Crisp'', AIR 1930 Rang 164 (A). That case has, in our opinion, no application. There the question was about the principles of valuing an appeal in a suit for partition, and it was held that the same principles applied in the case of a memorandum of appeal as were applicable to plaints.

The case here is entirely different. By virtue of the provisions of S. 5 of the Act what would otherwise have been a plaint is called an application, and it was because of this that the application was stamped with only eight annas stamp before the Tribunal. But what is presented in this Court is not an application, but a memorandum of appeal, and it has to be governed by the provisions of Sch. I, Art. 1, unless provided otherwise by the Act. The mere fact therefore that proceedings before the Tribunal began with an application and required only eight annas stamp would not necessarily mean that the memorandum of appeal would also require only a stamp of Rs. 2/-.

In this connection we may refer to - Mahant Anant Gir Vs. Ram Nazar Choube and Others, and Kr. Jagdish Pratap Bahadur Singh and Others Vs. Raj Kumar Udai Pratap Bahadur Singh and Others, . In both these cases the proceedings in the first court began with an application, but it was held that the memorandum of appeal was liable to a court fee under Sch. I, Art. 1 as it was not otherwise provided for in the Court Fees Act.

We are, therefore, of opinion that the memorandum of appeal in this case also must be stamped with ad valorem court fee on the amount of Rs. 5216/- which is the valuation of the appeal. One month''s time is allowed to Kishandas to make up the deficiency.