Nabh Raj Notan Dass vs Sidhu Ram Mool Chand and Others

Chopra, J.—This is an appeal against an order of the Tribunal, Patiala - appointed under the Displaced Persons (Debt Adjustment) Act - dismissing Nabh Raj Appellant''s application u/s 5 read with Section 11 (2) of the said Act. A preliminary objection is raised by the Respondent that proper court fee has not been paid on the memorandum of appeal. The appeal, presented with a four-rupee stamp, was placed before the taxifig-officer for determination of the court fee payable.

The taxing-officer, by his order dated 22-10-1954, directed the Appellant to pay a deficiency of Rs. 6/-, as, in his opinion, court fee of Rs. 10/- was required. Shri Babu Ram, learned Counsel for the Appellant, contends that order of the he taxing officer in the matter ought to be regarded as final. Reliance, in this connation, is placed on Section 5, Court-fees Act, relevant portion of which reads as follows:

When any difference arises between the officer whose duty it is to see that any fee is paid ''under this Chapter and any suitor or attorney, as to the necessity of paying a fee or the amount thereof, the question shall, when the difference arises in any of ''the said High Courts'', be referred to the taxing-officer, whose decision thereon shall be final, except when the question is, in his opinion, one of general importance, in which case he shall refer it to the final decision of the Chief Justice of such high Court, or of such Judge of the High court as the Chief Justice shall appoint either enerally or specially in this behalf.

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The Chief Justice shall declare who shall taxing, officer within the meaning of the first aragraph of this section.

My atteiltion''nas also been drawn to Notifica-ion No. 5 dated 26-4-1949 issued by Hon''ble the chief Justice-of-this . Court appointing the Re istrar as the taxing-officer and S. Kesho Ram pared. The contention is without force. What ''assey. J. as the taxing-judge for the purposes ever may be the form or contents of the de Section 5, Court fees Act.

The words "the said High Courts" in Section 5 reproduced above refer to the High Courts nentioned, in the, preceding Section 3 and 4. Section 3 as amended by the Adaptation of Laws order, 1950, says

The, fees payable for the time being to he clerks and officers (other than the sheriffs and attorneys of the High Court for Part A state ...........shall be collected in manner hereinafter appearing.

Section 4 deals with fees payable on documents lied .exhibited) or recorded in the High Courts nentioned in Section 3 The opening words of Section 5 further make it Clear, that the dispute regarding court fee payable under Chap.. II shall be referable'' to the taxing-officer or the taxing-judge. Chapter II in, which both Section 3 and 5 fall, expressly relate to High Courts for Part A States. The order of the taxing-officer in this case cannot, ''therefore, be regarded as final and the question has to be judicially determined.

On merits, Shri Babu Ram places his reliance upon Article 11 of Sch. II, Court-fees Act and contends that a court-fee of Rs. 4/- only was sufficient. Article 11 applies to "Memorandum of appeal when the appeal is not from a decree or an order having the force of a decree'', and provides that if presented to a High Court it requires a court fee of Rs. 4/-. The contention is that the order dismissing an application u/s 5, Displaced Persons (Debt Adjustment) Act is not a_ decree, nor does it amount to an order having the force of a decree.

The matter is made clear by the Displaced Persons (Debt Adjustment) Act itself. An order dismissing or accepting an application u/s 5 is to be made u/s 9 of the Act, and it says

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 assests 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.

If there is no such dispute or if the Respondents do not appear to 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.

The final order that the Tribunal thus makes u/s 9 is termed, as a decree even though the order is one for dismissal of the application.

Shri Babu Ram, on a reference to Section 27 of the Act, contends that an order in case of dismissal of an application u/s 5 need not contain the particulars mentioned in that section. According to him the contents of the decree, as mentioned in Section 27, are to be stated only in case the application is allowed and a decree in favour of the applicant is to be pre-Pepsu is prepared when the application is dismissed, the decision of the Tribunal shall be a decree as required by Section 9 of the Act. In any case, it will be an order having the force of a decree so as to exclude it from the application of Article 11, Sch. II Court-fees Act.

In F.A.O. No. 17 of 1953 (Pep) (A) decided on 7-10-1953 Kesho Ram Passey, J. (as he then was) Held that an appeal from an order dismissing an application u/s 10, Displaced Persons (Debt Adjustment) Act is governed by Article 1 Sch. I, Court-fees Act. Shri Babu Ram distinguishes this case on the ground that it related to the dismissal of a creditor''s application u/s 10 for realization of his debts, which stands on a different footing than an application by a debtor for adjustment of his debts u/s 5. The distinction is without any difference. Like Section 9, the final order on an application u/s 10, whether one of its acceptance or dismissal, is required by Section 11 to be in the form of a decree.

I would, therefore, direct that ad valorem court fee shall be paid on the memorandum of appeal, as required .by Article I Sch. I, Court-fees Act. Counsel for the Appellant prays for time for payment of the requisite court fee. One month''s time is- allowed for the purpose.