John Beaumont, Kt., C.J.
1. This is a reference made to me under Section 5 of the Court-fees Act by the Taxing Officer.
2. The facts giving rise to the reference are these. The present appellant (plaintiff) sued for partition, claiming one-third of a house which, he alleged, constituted the joint family property. The trial Court came to the conclusion that the joint family property consisted, not only of the house which the plaintiff sought to partition but also of another house, referred to as the house in exhibit 88, which was in the possession of the plaintiff, and the learned Judge, therefore, made an order that unless the plaintiff amended the plaint expressing his desire to put the house in exhibit 88 in his possession as joint family property no orders to effect partition of the suit house in his favour could be passed, as that would be in effect allowing a suit for partial partition. What the order comes to is that, if the plaintiff chooses to bring into hotchpot the house in exhibit 88, then he can have an order for partition of the two houses, but if he does not bring such house into hotchpot, then his suit for partition will be dismissed.
3. The plaintiff appealed against that order, and on presenting his memorandum of appeal the officer of the High Court to whom the memorandum of appeal was presented held that the memorandum ought to be stamped with the ad valorem value of the suit house and also the house in exhibit 88. On a reference to the Taxing Officer that view was upheld, and accordingly the plaintiff was required to stamp his memorandum of appeal on a sum of Rs. 5,334-5-4 for one-third share in the suit house and on Rs. 6,767-5-4 for two-thirds share in the house in exhibit 88.
4. The plaintiff then went in revision to the High Court, and the matter came before Mr. Justice Lokur, who expressed the view that the order of the Taxing Officer was wrong, because the house in exhibit 88 formed no part of the subject-matter of the appeal; the plaintiff had not amended his plaint and the house in exhibit 88 was not part of the subject-matter of the litigation. But the learned Judge held that he had no jurisdiction to interfere with the Taxing Officer's order, having regard to Section 5 of the Court-fees Act, which makes the order of the Taxing Officer final, but he threw out a suggestion that the Taxing Officer might be asked to review his own order. An application was then made to the Taxing Officer to review his order. The Taxing Officer came to the conclusion that the view he had formerly taken was wrong, and that, I think, is beyond question; but he thought it doubtful whether he had power to review his own decision, and he has referred that question to me as a matter of general importance under Section 5 of the Court-fees Act.
5. So far as material for the present reference, Section 4 of the Court-fees Act provides that no memorandum of appeal to the High Court can be accepted unless in respect thereof there be paid a fee of an amount not less than that indicated by either of the schedules as the proper fee. It is to be noticed that what is to be paid is not less than the proper fee as appears from the schedule, and not such an amount as the officer of the Court considers to be the proper fee. If the matter rested on Section 4 alone, I should say that the Court could direct its officer to accept a memorandum of appeal which was stamped with the amount which the Court thought proper; but then the terms of Section 5 have to be considered. That section so far as material provides that 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 specially in this behalf. Then it is provided that the Chief Justice shall declare who shall be the Taxing Officer within the meaning of the section.
6. It seems to me that the scheme is that if there is a difference of opinion, as there, was in this case, between the officer of the Court, whose duty it is to accept the memorandum of appeal, and the party presenting it, that difference has to be referred to the Taxing Officer, whose decision is final.
7. Mr. Shah has contended that although the Taxing Officer's decision may be final, in the sense that no appeal or revision lies against it, it is still open to the Taxing Officer to review his own order under Section 114 and Order XLVII, Rule 1, Civil Procedure Code. But the answer to that is that the Taxing Officer is not a Court, and the order he makes is not a decree or order of a Court. He is, I think, a special officer named by the section, and I doubt if it is accurate to say, as has been said certainly in one case, that he is an officer to whom the High Court has delegated the duty of deciding the dispute between a suitor and the officer required to accept the document. It seems to me that he is an officer nominated by the statute to determine a particular class of question, and he is not acting as an officer of the Court, or as a deputy for the Judge or Bench before whom the case is to come. As his decision is made final, it is not open to him, or to any one else, to review it. He can, of course, review his decision before it has become binding, but there is no doubt that in this case his order had become binding since he had signed it and communicated it to the parties.
8. There are a good many authorities in support of the view that the decision of the Taxing Officer cannot be reviewed by anybody, and I may refer to Balkaran Rai v. Gobind Nath Tiwari I.L.R. (1890) 12 All. 129unwar Karan Singh v. Gopal Rai I.L.R. (1909) All. 59 and Hitendra Singh v. Maharajadhiraj, Darbhanga : AIR1926Pat147 , although those are not the only cases on the subject. The cases on which Mr. Shah relies are cases under Section 12 of the Court-fees Act; but, as pointed out by the Allahabad Full Bench in Balkaran Rai v. Govind Nath Tiwari (supra), the language in Section 12 is quite different. Section 12(1), deals with Courts other than High Courts and leaves every question relating to valuation for the purpose; of determining the amount of any fee chargeable on a plaint or memorandum of appeal to the Court in which such plaint or memorandum is filed. Under that section the Court decides the matter, and not an officer, like the Taxing Officer, nominated by the statute. I do not think cases under Section 12 have any bearing on the question before me. In my view the Taxing Officer has no power to review his decision, and I think the only remedy to the party is to submit the matter to Government, and ask for the remittal of the fee which ought not to have been charged. I have no hesitation in this case in saying that no fee ought to have been charged in respect of the house in exhibit 88 which has never formed any part of the subject-matter of the litigation, and was merely to be brought in if the plaintiff chose to bring it in, which he has not done.
9. I answer the question put to me by saying that the Taxing Officer has no power to review his decision.
10. Time for payment of Court-fees extended by three weeks.