Sarin Printing Press, Lucknow vs District Judge, Lucknow and Others

Devi Prasad Singh, J.—Heard Sri N.K. Seth, learned Counsel for the petitioner as well as Sri P.S. Mehra, learned Counsel for opposite party No.3 who has filed Counter Affidavit which is taken on record.

Notice has been accepted by learned Chief Standing Counsel on behalf of opposite parties No.1 & 2.

Plaintiffrespondent has filed a suit for delivery of possession of the accommodation situated at House No.28, Jagat Narain Road, Golaganj, Lucknow. After service of notice, defendantrespondent has filed objection under Section 6 of the Court Fees Act, 1870 with the prayer that the plaintiff may be directed to pay the adveloram Court fees in view of the provisions contained in subsection 5 of Section 7 of the Court Fees Act. Copy of the plaint has been filed as Annexure No.1 to the writ petition. Copy of the objection filed by the petitioner has been filed as Annexure No.2 to the writ petition. The learned trial Court after providing the opportunity of hearing to the parties, arrived to the conclusion that issue relating to the Court fees can be raised after filing of Written Statement and framing of issues. Feeling aggrieved with the order passed by the trial Court dated 2.12.2004, petitioner has preferred a revision which has been dismissed by the Incharge District Judge, Lucknow vide order dated 8th of February, 2005. Incharge Learned District Judge, Lucknow observed that after filing of written statement, firstly issues are to be framed and only thereafter, controversy relating to insufficient court fees should be dealt with.

Sri N.K. Seth, learned Counsel for the petitioner while assailing the impugned order submits that petitioner has moved an application under Section 6 of the Court Fees Act and it was incumbent on the trial Court first to decide application and direct the plaintiff to pay the deficiency of court fees in pursuance to the provisions contained under subsection 5 of the Section 7 of the Court Fees Act. According to petitioner''s counsel, since petitioner has claimed for delivery of possession, he is liable to pay the ad valorem Court fees in pursuance to the provisions contained in subsection 5 of Section 7 of the Court Fees Act.

Learned Counsel for the petitioner has invited attention of the Court towards Section 6 of the Court Fees Act and proceeded to submit that before deciding the issue relating to the court fees and also before making the court fees good, the trial Court can not proceed with the suit in question. It was incumbent on the plaintiff first to pay the entire court fees in accordance to the provisions contained in subsection 5 of the Section 7 of the Act and only thereafter to proceed with the suit. Section 6 of the Court Fees Act, 1870 is reproduced as under:

�6. Fees on documents filed etc. in Mufassil Courts or in Public Office (1) Except in the Courts hereinbefore mentioned, no document of any kinds specified as chargeable in the first or second Schedule to this Act annexed shall be filed, exhibited or recorded in any Court of Justice, or shall be received or furnished by any public officer, unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said Schedules as the proper fee such document.

Provided that where such document relates to any suit, appeal or other proceedings under (any relating to land tenures or land revenue) the fee payable shall be three quarters of the fee indicated in either of the said Schedules except where the amount or value of the subject matter of the suit, appeal or proceeding to which it relates exceeds Rs.500.

Provided further that the fee payable in respect of any such document as is mentioned in the foregoing proviso shall not be less than one and one fourth of that indicated by either of the said Schedules before the first day of may, 1936.

(Explanation Where the amount of fee prescribed in the Schedules contain any fraction of a rupee below (twenty five naye paisa) or above (twenty five naye paisa) but below (fifty naye paisa) or above (fifty naye paisa) but below (seventy five naye paisa) or above (seventy five naye paisa) but below one rupee, the proper fee) shall be an amount rounded off to the next higher quarter of a rupee as hereinafter appearing in the said Schedules)

(2) Notwithstanding the provisions of subsection (1), a Court may receive plaint or memorandum of appeal in respect of which an insufficient fee has been paid, but no such plaint or memorandum of appeal shall be acted upon unless the plaintiff or the appellant, as the case may be, makes good the deficiency in court fee within such time as may from time to time be fixed by the Court.

(3) If a question of deficiency in court fee in respect of any plaint or memorandum or appeal is raised by an officer mentioned in Section 24A the Court, shall before proceeding further with the suit or appeal, record, a finding whether the court fee paid is sufficient or not. If the Court finds that the court fee paid is insufficient, it shall call upon the plaintiff or the appellant, as the case may be, to make good the deficiently within such time as it may fix, and in case of default shall reject the plaint or memorandum of appeal.

Provided that the Court may, for sufficient reasons to be recorded, proceed with the suit or appeal if the plaintiff or the appellant, as the case may be, gives security, to the satisfaction of the Court, for payment of the deficiency in court fee within such further time as the Court may allow. In no case, however, shall judgment be delivered unless deficiency in court fee has been made good, and if the deficiently is not made good within such time as the Court may from time to time allow, the Court may dismiss, the suit or appeal.

(4) Whenever a question of the proper amount of court fee payable is raised otherwise than under subsection (3), the Court shall decide such question before proceeding with any other issue.

(5) In case the deficiency is made good within the time allowed by the Court, the date of the institution of the suit or appeal shall be deemed to be the date on which the suit was filed or the appeal presented.

(6) In all cases in which the report of the officer referred to in subsection (3) is not accepted by the Court, a copy of the findings of the Court together with a copy of the plaint shall forthwith be sent to the (Commissioner of Stamps).

Subsection 2 of the Section 6 provides that unless the court fees is paid, a Court may receive plaint or memorandum of appeal, but the Court shall not proceed ahead unless the court fee is being paid in accordance to the provisions contained under the Act. The subsection 4 of Section 6 of the Act further provides that when question of improper amount of court fee is raised, the Court shall decide such question before proceeding with any other issue.

Learned Counsel for the petitioner has relied upon a Judgment of this Court reported in 1985 (3) LCD 130, Amar Nath Agarwal v. (Shri) Avinash Agarwal. For convenience, para 5 and 7 of Amar Nath Agarwal''s case (supra) is reproduced as under:

�Para 5: The decision in Sri Rathnavarmaraja (supra) is not applicable to the case because in that case the trial Court had decided the issue of court fee. If the trial Court decides the issue of court fee then it is only plaintiff who can file an appeal against that decision and not the defendant. In the instant case, however, the grievance is that the trial Court has failed to decide the issue. The trial Court''s reliance on this authority cannot thus be said to be correct. In Baijnath Prasad v. Tejpal (AIR 1941 Allahabad 55) it was pointed out that delivering one judgment in the case dealing with the question of court fees and with the question of the rights of the parties as regards the subject matter of the suit is not proper as this procedure was in flagrant violation of the provisions of Section 6(4) of the Court Fees Act. It creates complications as pointed out in that ruling, e.g. if court fee is found insufficient and the plaintiff fails to make good the deficiency then the question will arise whether he could appeal under Section 6A of the Court Fees Act on the issue of court fee alone or could also appeal under Section 96 Code of Civil Procedure against the decision merits. In that case their Lordships struck out the other grounds in the memorandum of appeal which deal with the merits of the case as superfluous and confined the appeal to the question of the sufficiency of court fee. It was also observed that the attention of the Courts below should be drawn to the imperative necessity of faithfully following the provisions of clauses (2), (3) and (4) of Section 6 of the Court Fees Act so that the anomalies of the description which their Lordships had to deal in the case before them may not arise in future.

Para 7: In this view of the matter the revision is allowed subject as aforesaid, and the order dated 22.11.84 is set aside and the trial Court is directed to decide the question of sufficiency of court fees as required by Section 6(4) of the Court Fees Act before proceeding further with the case.�

On the other hand submission of the learned Counsel for the respondent is that unless issues are framed in pursuance to the provisions contained in Order 14 of the Code of Civil Procedure, the question relating to payment of court fees can not be adjudicated. The further submission of the respondent''s counsel is that payment of court fee should be decided as the preliminary issue after filing of the written statement by the defendants.

I have given anxious consideration to the arguments advanced by the learned counsel for the parties. A close reading of Section 6 of the Act read with Order 14 of the Code of Civil Procedure shows that the payment of court fees has got prime importance while adjudicating upon a dispute by the competent civil Court. Subsection 2 of the Section 6 specifically provides that no plaint or memorandum of appeal shall be acted upon unless the plaintiff or appellant of the case makes good the deficiency of the court fees. Subsection 3 of Section 6 of the Court Fees Act provides that in case an officer makes an endorsement for deficiency of court fees then before proceeding further with the suit or appeal, the Court shall record finding whether the court fees paid is sufficient or not and in case court fees paid is not insufficient, it shall call upon the plaintiff or appellant as the case may be, to make good the deficiency within such time as it may fix, and in the case of default, shall reject the plaint or memorandum of appeal. Subsection 4 of Section 6 provides that issue relating to court fees shall be decided before adjudicating other issue. Subsection 5 of Section 6 further provides that in case the deficiency in the Court is made good within the time allowed by the Court, the date of the institution of the suit or appeal shall be deemed to be the date on which the suit was filed or the appeal is presented.

While interpenetrating the statutory provisions contained in the Act or Rules, the entire provisions should be read as a whole. When a suit is filed factual or legal questions are raised, issue should be framed before proceeding ahead, in pursuance to the provisions contained in Order 14 of the Code of Civil Procedure. For convenience, Order 14 Rule 1 of the Code of Civil Procedure is reproduced as under:

�1. Framing of issues: (1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other.

(2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.

(3) Each material proposition affirmed by one party and denied by the other shall from the subject of a distinct issue.

(4) Issues are of two kinds:

(a) issues of fact,

(b) issues of law.

(5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and (after examination under Rule 2 of Order X and after hearing the parties or their pleaders), ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.

(6) Nothing in this rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence.

A plain reading of Order 14 Rule 1 of the Code of Civil Procedure shows that while proceeding with the case, Court has to frame issue on the material, proposition of facts and law both. Accordingly, it can be very well be inferred that the framing of issues in a civil suit is a condition precedent to proceed with a suit. A plain reading of Section 6 of the Court Fees Act readwith order 14 Rule 1 of the Code of Civil Procedure shows that question relating to deficiency of court fees or compliance of subsection 5 of the Section 7 of the Court Fees Act can be very well considered by the trial Court after framing issues. Accordingly, the competent civil Court shall be within its jurisdiction to frame issue relating to the payment of court fees as a preliminary issue and decide the same before proceeding with the other issues. It shall be incumbent upon the trial Court to decide the issue relating to court fees as preliminary issue and in case, the trial Court finds that sufficient court fees has not been paid, then the Court may direct the plaintiff to make good the deficient court fees within the specified time. In case, the court fees is not paid, then the Court may not proceed further and the suit can be dismissed on account of non compliance of the order passed by the trial Court.

While interpreting the statutory provisions, it is a settled law that a statute should be construed with reference to the context vis�vis the other provisions so as to make a consistent enactment of the whole statute relating to the subject matter. Hon''ble Supreme Court in case reported in (2003) 7 SCC 628, Balram Kumawat v. Union of India and others, has proceeded to held as under:

�20. Contextual reading is a wellknown proposition of interpretation of statute. The clauses of a statute should be construed with reference to the context vis�vis the other provisions so as to make a consistent enactment of the whole statute relating to the subject matter. The rule of �ex viseribus actus� should be resorted to in a situation of this nature.

In State of W.B. v. Union of India, (AIR at p.1265, para 68), the learned Chief Justice stated the law thus:

�The Court must ascertain the intention of the legislature by directing its attention not merely to the clauses to be construed but to the entire statute, it must compare the clause with the other parts of the law, and the setting in which the clause to be interpreted occurs.�

22.The said principle has been reiterated in R.S. Raghunath v. State of Karnataka, (AIR at p.89)

Furthermore, even in relation to a penal statute any narrow and pedantic, literal and lexical construction may not always be given effect to. The law would have to be interpreted having regard to the subject matter of the offence and the object of the law it seeks to achieve. The purpose of the law is not to allow the offender to sneak out of the meshes of law. Criminal Jurisprudence does not say so.�

In view of the above, though the Court Fees Act is to be inforced notwithstanding with the provisions contained in the Code of Civil Procedure, but there seems to be no conflict between the provisions contained in Section 6 of the Court Fees Act readwith Order 14 Rule 1 of the Code of Civil Procedure. Order 14 is a procedural law which requires framing of all issues relating to disputed question of fact and law. Deficiency in court fees is a question of law coupled with disputed question of fact and the said dispute can very well be solved by farming of issues for adjudication by the competent civil Court as preliminary issue. Framing of an issue relating to court fees as preliminary issue shall be sufficient compliance with the provisions contained in Section 6 of the Court Fees Act. In case, issues are framed after filing of the Written Statement, it shall not create any hurdle or shall not amount to any illegal act. But it shall be an act for expeditious disposal of the suit. Issues relating to payment of court fees may require adducing of evidence by the parties under the facts and circumstances of a particular case, hence, it is necessary that issues relating to payment of court fees should be framed alongwith other issues after filing of Written Statement.

However, situation may be different when the Court Officer or Stamp Reporter makes an endorsement relating to the deficiency of court fees. In case such endorsement is made then naturally the Court should decide the question relating to deficiency of court fees first before proceeding with suit or appeal as the case may be in view of the provision contained in subsection 3 of the Section 6 of the Court Fees Act.

In the case of Amar Nath Agarwal relevant portion of which has been reproduced herein above, this Court held that if the trial Court decides the issue relating to court fee, then only plaintiff can file an appeal and not the defendant and when the trial Court has failed to decide the issue relating to the court fees, defendant may challenge the same. Petitioner has filed a revision which was allowed by the District Judge, Lucknow with the direction to the trial Court to decide the question relating to sufficiency of court fees as required by subsection 4 of Section 6 of the Court Fees Act. A close reading of Amar Nath Agarwal''s case (supra) shows that the issue relating to the court fees should be decided as preliminary issue before proceeding ahead with the suit.

Under the above facts and circumstances of the case, I do not find any reason to interfere with the impugned order. However, the trial Court is directed to proceed with the suit in accordance to law expeditiously and frame preliminary issues relating to payment of court fees and decide the same keeping in view the provisions contained in Section 6 of the Court Fee Act. However, since the controversy has been prolonging on account of the present dispute, as agreed by the parties, defendant petitioner may file Written Statement within a period of two weeks from today and thereafter the trial Court may proceed with the suit in accordance to law.

Subject to above, the writ petition is dismissed in limine. No order as to costs.

(Petition dismissed)