The State of Gujarat vs Hiraben Mahendraprasad and Others

This is a revision application filed by the State of Gujarat being aggrieved by an order dated 20th Aug., 1979 passed by Mr. R. K.

Abichandani, the learned Judge of the City Civil Court, Ahmedabad, The order has been passed below Ex, 35 in the Civil Suit No. 2776 of 1977

pending in that court .The said suit has been filed by present respondent No .1 Hiraben for getting her share in some immovable property situated

in the city of Amendment.

Respondents Nos. 2 and 3 who are the defendants Nos. 1and 2 in that suit inter alia contended that the suit was not properly valued for the

purpose of court-fees and that adequate court-fees were not Paid. The plaintiff gave application, Ex. 35 requesting the learned Judge that as a

dispute was raised about the adequacy or otherwise of the court-fees, the inspector of court-fees obviously appointed under - Section 12 of the

Bombay Court-fees Act. 1959 by the State of Gujarat should be asked to verify whether the valuation was correct or not. The words of the order

passed by Mr. Abichandani, the learned Judge, are as follows:--

Inspecting Officer is directed u/s. 12 (2) of Bombay Court-fees Act to find out whether proper fees have been paid in this matter"". (emphasis by

me)

The above-quoted , order passed by Mr. Abichandani was preceded by an order dated 2nd August, 1979 which is reproduced below:-

Send to the court-fee inspector for valuation and report within two weeks.

It is these two orders below Ex. 35 that a challenged by the State.

Mr. Takwani the learned Assistant Public Prosecutor invited my pointed attention to Sections 8, 9 and 14 of the Bombay Court-fees Act, 1959

and urged that it is essentially the judicial function to decide what should ''be the, Proper court-fees in a given suit, and that'' this judicial function

cannot be abdicated by a Judge by calling for the opinion of the court-fee inspector appointed by the State Government for fiscal purposes.

Section 8 itself lays down that if the court is of the opinion that the subject matter of any suit has been wrongly valued or if an application is

made to the court for the revision of any valuation made, the court is empowered to revise the valuation and determine the correct valuation on and

may hold such inquiry as it thinks fit for such purpose. Section 9 of the Act then empowers the court to depute or issue a commission to any

suitable person to make such local or other investigation as may be necessary and to report thereon to the court. Such report and any evidence

recorded by such person shall be evidence in the inquiry. Then. Section 14 of the Act provides that every question relation to valuation for the

purpose of determining the amount of any fee chargeable under that Chapter of the Court-fees Act on a plaint or memorandum of appeal shall be

decided by the court in which such plaint or memorandum, as the case may be, is filed and such decision at that stage becomes final between the

parties to the suit.

A conjoint reading of Sections 8, 9 and 14 of the Bombay Court-fees Act, 1959, therefore makes it clear that it is essentially the function of the

court to determine correct valuation and fix the correct amount of court fees in a given suit or appeal. From the orders, it appears that the learned

Judge passed the responsibility of finding out whether proper fees have been paid or riot, to the inspecting officer, or, as if the inspecting officer

appointed by the State u/s 12(2) is the officer attached to the court or as the officer subordinate to him. This appears to be the approach of the

learned Judge in passing the two impugned orders. From the scheme of the Act, I hold that this assumption on the part of the learned Judge is

clearly wrong and unwarranted.

It is no doubt true that the court is given a power to make local or other investigation as may be necessary and for that purpose, the court may

issue a commission to a suitable person. It is implicit in issuance of the commission that it would be issued to a person who will be willing to act. On

any Government servant appointed by the State Government for its own purposes such commission cannot be thrust. From the trend of the order

passed by the learned Judge and from what Mr. Takwani told me about the prevailing practice in some of the courts in the City Civil Court, it

appears that the inspecting officers appointed by the State Government to look after its interests in the matter of finance are treated by the learned

Judges as officers under their supervision and control and direction. The word ''directed'' used by the learned Judge Mr. Abichandani is clearly

suggestive of this. It is a well rooted and time honoured practice of almost all the courts to issue a notice to the Government Pleader or

Government whenever any question of court-fees arises. This is quite different from the imposition of this sort of work on an officer appointed u/s

12 of the Act.

If we look to Section 12 of the Act, it appears clear that the State Government has envisaged appointment of one or more officers to be called

inspecting officers for the purpose of making inquiry and investigation of their own for seeing that the Government revenue does not suffer. These,

inspecting officers are under the direct control of the Government as the scheme shows and they cannot be directed to carry on the work of local

inspection and do other ancillary work. Under the orders of the court in suitable cases. The Court may appoint them as a Commissioner. But this

would not be advisable course. Ordinarily, a Commissioner is an independent person having nothing to do with the opponent. The inspecting

officer being an agent of the State, is ex facie an interested person and, therefore cannot be appointed as a Commissioner and should not be

appointed as such, by virtue of the power conferred on the courts u/s 9(1) of the Act. When such, a dispute is raised or arises before the by the

court in the manner laid down in Section 9(1) and as per the prevailing practice. a notice would be issued to the Government Pleader.

In the above view of the matter. I hold that the inspecting officers appointed u/s 12(1) of the Bombay Court-fees Act, cannot be treated as an

authority subordinate to the courts and cannot be assigned the work of determining the valuation of the properties by making local or other

investigation of their own. Such inspecting officers may find that the fee payable under this Act has not been paid or has been insufficiently paid and

they are empowered to make a report of the same to the presiding officer of the court. Such proceedings initiated by the inspecting, officers are the

subject matter of allied inquiry. Their sphere is however, different from the sphere taken up by the court suo motu or at the instance of the parties

to the litigation.

In the above view of the matter the impugned orders are set aside by allowing this revision application filed by the state. Rule is accordingly

made absolute with no order as to, costs.

Order accordingly.