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Raghunath Ganesh Thakar Vs. Vaman Vasudev Chitale - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Rven. Appln. No. 383 of 1949
Judge
Reported inAIR1950Bom234; (1950)52BOMLR135
ActsCourt-fees Act, 1870 - Sections 6
AppellantRaghunath Ganesh Thakar
RespondentVaman Vasudev Chitale
Appellant AdvocateR.N. Bhalerao, Adv.
Respondent AdvocateB.G. Thakor, Asst. Govt. Pleader amicus curiae
Excerpt:
court-fees act (vii of 1870), section 6 - transfer of suit--suit filed on original side of high court --transfer of suit to mofussil court--court-fee stamp on plaint to be ad valorem on amount of claim.; where a suit, instituted on the original side of the high court on a plaint bearing court-fee stamp according to the high court scale, is transferred for trial to a civil court in the mofussil, the plaint must be re-stamped ad valorem on the amount of the claim, under section 6 of the court-fees act, 1870.;bibee golap kumuri saheba v. md. kadiruddin (1908) 12 c.w.n. 917, distinguished. - .....court-fee on a plaint which was transferred to his court under orders of this court. the plaintiff filed suit no. 1920 of 1946 on the original side of this court against the defendant, who is the opponent before me. the defendant filed is the court of the civil judge (senior division), poona, suit no. 820 of 1943 against the petitioner-plaintiff for a certain declaration and injunction. the defendant applied to this court by application, being civil application no. 324 of 1947, for an order transfering the suit on the original side of this court to the poona civil judge's court with a direction that that suit be heard with suit no. 820 of 1946. this court by its order dated 27th november 1947, directed as follows:'we therefore make the rule absolute and direct that suit no. 1920 of 1946.....
Judgment:
ORDER

Shah, J.

1. This is a revisional application against the order of the Civil Judge, Senior Division, Poona, directing the plaintiff to pay the necessary court-fee on a plaint which was transferred to his Court under orders of this Court. The plaintiff filed suit No. 1920 of 1946 on the Original Side of this Court against the defendant, who is the opponent before me. The defendant filed is the Court of the Civil Judge (Senior Division), Poona, suit No. 820 of 1943 against the petitioner-plaintiff for a certain declaration and injunction. The defendant applied to this Court by application, being Civil Application No. 324 of 1947, for an order transfering the suit on the Original Side of this Court to the Poona Civil Judge's Court with a direction that that suit be heard with suit No. 820 of 1946. This Court by its order dated 27th November 1947, directed as follows:

'We therefore make the rule absolute and direct that Suit No. 1920 of 1946 pending on the Original, Side of this Court be transferred to the Court of the Civil Judge, Senior Division, Poona, and that Suit No. 820 of 1916 pending in the Court of the Civil Judge, Junior Division, Poona, be transferred to the Court of the Civil Judge, Senior Division, Poona, and that both, the suits should be heard and decided by the Court of the Civil Judge, Senior Division, Poona, according to law.'

After the proceedings of Suit No. 1920 of 1946 were transferred from the file of this Court on its Original Side, they were numbered as Suit No. 67 of 1948 of the file of the Civil Judge (Senior Division), Poona. The learned Civil Judge, Senior Division, Poona, raised an issue as to whether the plaintiff had paid proper court fee on the suit claim. The learned Judge came to the conclusion that the plaintiff had not paid the necessary court-fee and directed that the plaintiff should pay ad valorem court-fee on the amount of Rs. 10,000 claimed. The plaintiff feeling aggrieved by that order directing him to pay court-fee on the amount of, Rs. 10,000, which was the subject-matter of his claim, filed this revision application. The defendant opponent has not appeared before me because the notice could not be served on him, but the Assistant Government Pleader has appeared in support of the order passed by the Court below.

2. It is contended by Mr. Bhalerao on behalf of the petitioner that the plaint was properly filed with the institution fee which is required to be paid on the original side of this Court, and the suit having been properly instituted no question of payment of any further court-fee could arise on a transfer of the suit to the Court of Civil Judge, Senior Division, at Poona. Mr. Bhalerao contends that it is by reason of the order of the Court that the suit had been transferred and he says that the Poona Court has no jurisdiction to direct that any further amount of court-fee be paid. Mr. Bhalerao says that the order of transfer was not the result of a voluntary act on the part of the plaintiff, but it was in pursuance of an order of the Court that the transfer of the suit had taken place; and he relies on the adage that the 'act of the Court shall causes prejudice to none.' Therefore, he contends that if a plaint is properly filed on the original side of this Court, a subsequent transfer by the Court to another Court cannot render the plaint liable to court-fee to which it would not have been liable if the suit had continued on the original side of this Court. Mr. Bhalerao also relies upon a decision of the Calcutta High Court in Bibee Golap Kumari Saheba, v. Md. Kadiruddin 12 C. W. N. 917.

3. Now the court-fee chargeable on documents which are filed, exhibited or recorded in any Court of Justice other than the Courts referred to in chap, II, Court-fees Act is provided for in Schedules I and II, Court-fees Act. Section 6, Court-fees Act provides as follows:

'Except in the Courts hereinbefore mentioned, no document of any of the 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 for such document '

The Court of the Civil Judge, Senior Division, Poona, is not one of the Courts mentioned in Chap. II, Court-fees Act and, therefore, the court-fee payable on a plaint filed or instituted in that Court must be governed by the provisions of Section 6 and the provisions of Schedules I and II, Court-fees Act. Section 28, Court fees Act provides:

'No document which ought to bear a stamp under this Act shall be of any validity, unless and until it is properly stamped. But, if any such document is through mistake or inadvertence received, filed or used in any Court or office without being properly stamped, the presiding Judge or the head of the office, as the case may be, or, in the case of High Court, any Judge of such Court, may, if he thinks fit, order that such document be stamped as he may direct; on such document being stamped accordingly, the same and every proceeding relative thereto shall be as valid as if it had been properly stamped in the first instance.'

4. Section 7, Clause. (1). Court-fees Act provides for payment of court-fee on plaints in suits for money according to the amount claimed. Schedule I, Clause (1) indicates the court-fee payable on plaints.

5. It is true that before this Court directed the plaint to be transferred from the file of this Court to the Court of the civil Judge, Senior Division, Poona, the plaint was properly filed on the Original Side of this Court and proper court-fee had been paid. But that circumstance will not prevent the application of Section 6 of the Court-fees Act. The terms of Section 6 are quite explicit. Under that section no document specified as chargeable with court fee under the schedules to the Court-fees Act--and a plaint is a document so specified--can be filed, exhibited or recorded or received in any Court of Justice or can be received or furnished by any public officer unless proper court-fee indicated by the schedules is paid thereon. In whatever manner the plaint comes before the Court, if is does not bear the court-fee which the provisions of the Court-fees Act say that it shall bear, it cannot be filed, exhibited or recorded in a Court of Justice; and if by mistake or inadvertence it had been so filed, exhibited or recorded, it has no validity whatever till the proper court-fee as computed under the relevant schedule of the Court-fees Act is paid. The circumstance that the plaint was lodged in another Court which according to the provisions governing it treated it as properly instituted cannot prevent the application of Section 6, Court fees Act. The court-fee payable on a document has to be ascertained under the provisions of the Court-fees Act, at the time when the document is required to be filed, exhibited or received in a Court; and if the document is not adequately stamped at the crucial date, it has no validity. The fact that the plaint in the present case was a document which was properly filed in another Court according to the provisions applicable to that Court is irrelevant in considering whether it was properly stamped for the purpose of the Court fees Act in the Court of the Civil Judge Senior Division, Poona, when the plaint was required to be filed, exhibited or received. No ground is suggested for excluding the jurisdiction of the Poona Court to demand court-fee which by reason of the provisions of Section 6, Court-fees Act, the plaint was required to bear and which it obviously did not bear. The fact that it is not by reason of a voluntary act on the part of the plaintiff that the plaint was transferred but in pursuance of an order of the Court that the plaint was transferred is also not relevant in considering the application of Section 6. In my judgment Section 6, Court-fees Act does not concern itself with the mode or manner in which a document comes before a Court; the terms of the section are explicit and require that in respect of a document coming before it, a fee as prescribed must be paid.

6. It cannot be said that in this case the act of a Court is causing any prejudice to a party. For reasons of convenience, the Court has transferred the suit to the Court of the Civil Judge, Senior Division, Poona, and that order of transfer may involve consequences, including a statutory liability to pay court-fees. When the provisions of a taxing statute such as the provisions of Sections 6 and 23, Court-fees Act are clear and definite, I do not see any ground for escaping them on the indefinite suggestion that it is the act of the Court which is causing prejudice to a party who had filed a suit properly in the High Court. Nor is the decision in Bibee Golap Kumari Saheba v. Md. Kadiruddin 12 C.W N. 917, of any use to the plaintiff. That was a case in which the suit was originally filed as it could be filed before the Settlement Officer of the Santhal Pargannahs. That officer was authorised to refer the plaintiff to the civil Court, and in the statute governing the institution of such suits, it was expressly provided under Section 6 that on a party being referred to the civil Court, that Court 'may proceed to try and determine such suit under the same rules and in the same manner as if the suit had been originally instituted therein.' The effect of that section is to convert the civil Court for the purpose of hearing a transferred suit into a special Settlement Officer, and presumably it was on that ground that the Government Pleader appearing in that case on behalf of the taxing authority conceded that the argument advanced in that case, namely, that if the institution was proper before the settlement officer, the civil Court was bound to try the suit in the same manner as it was originally instituted, should be accepted.

7. In my view the order of the learned Civil Judge, Senior Division, Poona, directing the plaintiff to pay the ad valorem court-fee on the amount of Rs. 10,000 is proper.

8. However, I must nuke one small correction. In calculating the court-fee payable on the plaint the plaintiff is entitled to credit for such amount as he might have paid by way of institution fee in the High Court when presenting the plaint.

9. Time extended by two weeks for payment of the requisite court-fee from the date of the receipt of the writ in the Court below.

10. Rule is discharged. No order as to costs.


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