Usha vs Sudhir Kumar Soneja

P.C. Pandit, J.—Shrimati Usha filed a petition against her husband Sudhir Kumar Suneja for a decree of judicial separation u/s 10 of Hindu Marriage Act during the trial of that petition, she also made an application u/s 24 of the same Act for the grant of monthly maintenance for herself and her child and expenses of litigation. The learned District Judge made an order directing the husband to pay a sum of Rs. 1,000/- for litigation expenses and Rs. 300/- per month as maintenance- The husband filed a first appeal in this Court against the order made by the learned District Judge on the application u/s 24 of the Hindu Marriage Act. The appeal came up before Jain J, who partly accepted the same and directed the husband to pav a sum of Rs. 500/- for litigation expenses and Rs. 200/- per mensem as maintenance. Thereupon, Shrimati Usha filed a Latters Patent Appeal against the order of Jain J., for the enhancement of both the amounts. Sudhir Kumar, on the other hand, filed cross-objections asking for reduction in the said amounts awarded by the learned Judge. He paid a fixed Court-fee of Rs 19.50 on the cross-objections The Stamp Reporter objeced to the sufficiency of this Court-fee and he asked the husband to pay ad valorem court-fee on the subject-matter in dispute. Since the husband did not agree to do so, a reference was made u/s 5 of the Court Fees Act, 1870, hereinafter called the Act, to the Taxing Officer for the determination of the amount of court-fee chargeable on the cross-objections. By his older dated 7th March, 1970, the Taxing Officer, who is the Registrar of this Court, held that the cross-objections has been insufficiently stamped. He calculated the correct fee leviable on the cross-objections and directed the respondent to make good the deficiency within one month of the date of the communication of his order. As the counsel for the respondent did not put in the necessary court-fee, as directed by the Taxing Officer, the papers have been placed before us by the office for necessary orders.

We have heard the counsel for both the parties. Learned counsel for the respondent contended that the order passed by the Taxing Officer regarding court-fee was incorrect in law. Counsel or the appellant, on the other hand, submitted that the order regarding the court-lee made by the Taxing Officer u/s 5 of the Act was final and could not be agitated before us. The question for decision is whether finality attaches to the order regarding the court-fee made by the Taxing Officer u/s 5 of the Act. The relevant part of the said section reads thus.

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 generally or especially in this behalf.

* * *

The Chief Justice shall declare who shall be taxing-officer within the meaning of the first paragraph of this section.

A bare reading of this section would show that when any difference arises between a client and the office as to the amount of court-fee to be paid, the question will be referred to the Taxing Officer, whose decision thereon would be final. If the question is one of general importance, then instead of the Taxing Officer, it will be referred to the final decision of the Chief Justice or of the Taxing Judge. On the language of the section, it is plain that when the dispute regarding the amount of court-fee has been settled by the Taxing Officer, that decision will be considered to be final.

Apart from the interpretation of the section, there are decided cases which have taken this very view. In a Bench decision of the Bombay High Court in Gangaram Tirlokchand v. The Chief Controlling Revenue Authority AIR 1927 Bom. 543, it was observed that a decision u/s 5 of the Court Fees Act of the Taxing Officer of the High Court on of the Chief Justice or the Judge appointed u/s 5 was final and was not challengable either by way of appeal or revision. In this case, reliance was placed inter alia on an earlier Full Bench decision of the Allahabad High Court in Balkagan Raj and Ors. v. Gobind Nath Tiwari ILR 12 All. 129, and a Bench decision of the Calcutta High Court in in the goods of In Re: Bhubaneswur Trigunait and Others, In Balkaram Rai''s case, Sir John Eage, Chief Justice, observed-

I have consequently come to the conclusion that not only did the legislature intend that the decision u/s 5, court fees Act, of the taxing officer of the High Court, or of the Chief Justice, or the Judge appointed u/s 5, should for all purposes be final, but that the legislature had been careful to avoid providing or suggesting any means by which such a decision might be questioned

Rankin J. in Bhubaneswar Trigunati''s case remarked:

I think this involves that the taxing officer''s decision is a final decision u/s 5 and that in this case the learned Judge had no authority to review it u/s 19-I.

* * *

In my opinion the decision of the taxing officer under Rule 4 Chapter 35 is final by virtue of Section 5 of the Act.

The same view was taken by a Bench decision of the Patna High Court in Hitendra Singh and Others Vs. Maharajadhiraj of Darbhanga, , where it was held that the High Court had no power to interfere with the order passed by the Taxing Officer regarding the amount of court fee. His order though wrong was final and there was no power of appeal, review or revision against it.

There is also a decision of the Supreme Court in S. Rm. Ar. S. Sp. Sathappa Chettiar v. S. Rm. Ar. Rm. Ramanathan Chettiar AIR 1988 S.C. 245, where in the head note it is stated that the order of the Taxing Judge u/s 5 of the Court Fees Act is final.

Learned counsel for the respondent did not cite any authority to the contrary regarding the interpretation of Section 5 of the Act. He, however, referred to three decisions, viz. 1) Badri Prasad v. Kundan Lal ILR 15 All. 117. (2) Bhurmppa Adoptive father Bharamagauda Mudigaudar v. Ujjangauda Adoptive father Bharamaguda AIR 1922 Bom, 173, and Narain Parsad and Another Vs. Banarsi Das, . But they are not relevant to the point.

Reference was also made by him to the provisions of Section 12 of the Act, which read:

(i) Every question relating to valuation for the purpose of determining the amount of any fee chargeable under this chapter 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 shall be final as between the parties to the suit.

(ii) But whenever any such suit comes before a Court of appeal, reference or revision, if such Court considers that the said question has been wrongly decided to the detriment of the revenue, it shall require the party by whom such fee has been paid to pay so much additional fee as would have been payable had the question been rightly decided and the provisions of Section 10, paragraph (ii) shall apply.

It would be seen that Section 12 deals with the decision regarding the question as to valuation for the purpose of determining the mount of court-fee chargeable on a plaint or memorandum of appeal.

Under Section 12 (i), such a question will be decided by the Court where t arises and that decision would be final between the parties to the suit u/s 12 (ii), when that suit comes before a Court of appeal, reference or revision and that Court is of the opinion that the question regarding the valuation had been wrongly decided to the detriment of the revenue by the Court below, it would direct the party to pay the additional court-fee. Section 12 has nothing to do with Section 5 of the Act. The Supreme Court has held in Nemi Chand and Another Vs. The Edward Mills Co. Ltd. and Another, .

The difference in the phraseology employed in Sections 5 and 12, Court-fee Act, indicates that the scope of Section 12 is narrower than that of Section 5. Section 5 which declares decisions on question of court-fee whenever they arise in the chartered High Courts as final makes a decision as to the necessity of paying a fee or the amount thereof final. Whereas Section 12 makes a decision on every question relating to valuation for the purpose of determining the amount of any fee payable under Chapter 3 on a plaint or memorandum of appeal final.

Section 12 of the Act and the decisions given there under are not relevant for the determination of the scope of Section 5 of the Act.

We are, therefore, of the opinion that the order passed by the Taxing Officer u/s 5 of the Act regarding the court-fee to be paid on the cross-objections is final and cannot be questioned. The respondent is, however, given two months time to make up the deficiency in court-fee.