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Baburao Pandharinath Jahagirdar Vs. Bhikachand Tulsiram Marwadi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revision Application No. 429 of 1960
Judge
Reported in(1960)62BOMLR845
AppellantBaburao Pandharinath Jahagirdar
RespondentBhikachand Tulsiram Marwadi
Excerpt:
.....1(f)(iii) whether payment of court-fee stamps necessary on revision application under section 5(2)-memo, of appeal filed against part of decree-court-fees payable on such memo. how to be determined.;a revision application under section 5(2) of the bombay court-fees act, 1959, does not come within the purview of article 1(f)(m) of schedule ii to the act and it does not require payment of any court-fee stamps. ;the expression 'by the chief justice or by such judge of the high court as the chief justice shall appoint' referred to in section 5(2) of the act, refers to designated persons and does not refer to the high court. ;jagmohan v. venkatesh (1932) 35 bom. l.r. 89, referred to. ;ordinarily, if the legislature intended to invest a court with certain powers, then, the presumption would be..........on this difference arising between the office and mr. l.p. pendse, the matter was referred to the taxing officer under section 5 of court-fees act, vii of 1870. thereupon, the taxing officer instituted an inquiry into the matter. that inquiry was still pending, when, on august 1, 1959. act vii of 1870 was repealed by bombay court-fees act xxxvi of 1959. after this latter act came into operation, the taxing officer delivered his judgment on september 24, 1959. the judgment was adverse to the contentions urged by mr. pendse. mr. pendse was dissatisfied with the judgment, and, therefore, he filed a note, on september 29, 1959, in which he expressed a desire that the matter should be referred to the court for decision.3. now, if the matter were governed by section 5 of the old court-fees.....
Judgment:

Miabhoy, J.

1. This matter has been referred to me by the learned Chief Justice tinder Section 5(2) of the Court-fees Act. Before I mention the points which have got to be dealt with in this reference it is necessary to state very briefly the facts which have led up to it.

2. Suit No. 50 of 1945 was filed in the Court of the Civil. Judge (Senior Division), Nasik, for possession of two fields bearing S. Nos. 90 and 93, and for recovering past and future mesne profits. Appellants were some of the defendants in that suit. Ultimately, a decree for possession was made, as also an order underO. XX, Rule 12, Civil Procedure Code, directing inquiry into past and future mesne profits. Appellants filed their memo.. of appeal on June 15, 1959. The appeal was directed only against the decree for possession. The appellants stamped the memo. of appeal on this basis, and there is no doubt that the memo. of appeal has been correctly stamped, if the same is held to be an. appeal against the decree for possession only. The office, however, took the view that the memo. of appeal was not properly stamped. This view appears to have been taken on the ground that the appellants should have preferred an appeal also against that part of the decree which directed an inquiry into past and future mesne profits. When this objection was raised and brought to the notice of Mr. L.P. Pendse, learned advocate for appellants, he distinctly averred that he had not filed and that he did not intend to file any appeal against that part of the decree which had directed an inquiry into past and future mesne profits. Even then the office view was that the memo. of appeal was not properly stamped. It expressed the view that the memo. of appeal-should bear stamps to cover that part of the decree which had directed an inquiry into past and future mesne profits. On this difference arising between the office and Mr. L.P. Pendse, the matter was referred to the Taxing Officer under Section 5 of Court-fees Act, VII of 1870. Thereupon, the Taxing Officer instituted an inquiry into the matter. That inquiry was still pending, when, on August 1, 1959. Act VII of 1870 was repealed by Bombay Court-fees Act XXXVI of 1959. After this latter Act came into operation, the Taxing Officer delivered his judgment on September 24, 1959. The judgment was adverse to the contentions urged by Mr. Pendse. Mr. Pendse was dissatisfied with the judgment, and, therefore, he filed a note, on September 29, 1959, in which he expressed a desire that the matter should be referred to the Court for decision.

3. Now, if the matter were governed by Section 5 of the old Court-fees Act VII of 1870, it is conceded by Mr. Pendse that he has no right to ask for a reference being made to the Court. That section left the question of making a reference entirely to the discretion of the Taxing Officer. Unless the Taxing Officer chose to make a reference, his decision was final. But the new Court-fees Act, ' XXXVI of 1959, has changed the law in this respect. Section 5(2) of the new Act, after stating that the decision of the Taxing Officer is final, expressly states that it is so

subject to revision, on an application, made within sixty days from the date of the decision, by the suitor or his pleader...by the Chief Justice or by such Judge of the High Court as the Chief Justice shall appoint either generally or specially in this behalf.

Mr. Pendse's contention was that the matter was governed by the new Sub-section (2) of Section 5 of Act XXXVI of 1959. The matter was, thereupon, placed before Tarkunde J. on October 22, 1959, but the learned Judge passed no orders on the motion of Mr. Pendse. Thereafter, the matter was referred to the learned Chief Justice, and, by his order, dated November 25, 1959, he has directed the matter to be placed before me.

4. Now, the first question which has been raised in this reference is whether the revision application is competent under Sub-section (2) of Section 5 of the Bombay Court-fees Act XXXVI of 1959, or whether the order passed by the Taxing Officer is final. This raises a further question as to whether the decision, arrived at by the Taxing Officer is one under Section 5 of the old Court-fees Act VII of 1870, or it is one under Sub-section (2) of Section 5 of the new Court-fees Act XXXVI of 1959. I have no doubt whatsoever that the decision of the Taxing Officer is under the new Act. Under Section 6 of the old Act, it was enacted that

No document of any of the kinds on which Court-fees are payable shall be filed, exhibited or recorded in any Court of justice, unless in respect of such document there has been paid a fee of an amount not less than that indicated as the proper fee for such document.

Therefore, this section clearly prohibited any document from being filed, exhibited or recorded in any Court of law unless a proper Court-fee stamp was paidthereon. There cannot be any dispute that the memo. of appeal had been neither exhibited nor recorded in this Court. But the question arises as to whether that document was or was not filed in this Court on June 15, 1959. Now, the term 'filed' was construed in the case reported inAmjad Ali v. Muhammad Israil. I.L.R. (1897) All. 11. It was explained therein that the term 'filed' did not mean the same thing as presented. It was explained that that term meant something more than a mere presentation of a document, and that it implied that the plaint or the memorandum of appeal had been put on the file of the Court. The term 'filed' has no reference to any act on the part of the litigant, it has a reference to the act of the Officer of the Court. Therefore, when the officer of the Court forms an opinion that a document is not properly stamped, having regard to the provisions of Section 6, he is prohibited from taking the document on the file of the Court. Thus, on June 15, 1959, when the office came to the conclusion that the memo of appeal was not properly stamped, it refused to take the same on its file, and, consequently, the position today with reference to the memo. of appeal presented by Mr. Pendse is that it is not still on the file of the Court. When the matter was referred to the Taxing Officer, the reference was under Section 5 of the old Act. It is true that, if he had given his decision in this matter before August 1, 1959, i.e. before the new Act came into operation, his decision would have been final. But the fact is that no decision was given by the Taxing Officer before the present Act came into operation. It is quite obvious that, when the old Act became repealed, the Taxing Officer would have ordinarily no jurisdiction to continue the proceedings under the old Act, unless there was a provision to the contrary either in the new Court fees Act, or under the General Clauses Act. The Taxing Officer would cease to have any jurisdiction to deal with the matter under Section 5 of the old Act. Section 49, however, of the new Act makes a specific provision on the subject of the action taken by the Taxing Officer under the old Act. The first proviso deals with this matter, and the relevant part of the proviso states that any action taken under the previous Act, shall,

in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provision of this Act.

Therefore, by virtue of this proviso, an action which was taken by the office and which was being taken by the Taxing Officer under the old law must be deemed to have been taken under the corresponding provision of the new Act i.e. under Section 5, Sub-section (2) of the new Act. Therefore, the decision which was given by the Taxing Officer on September 24, 1959, was a decision which was given by him under Sub-section (2) of Section 5 of the new Act, and, as such, that decision was revisable under the latter provision. Therefore, in my judgment, the present revision application does lie under the latter provision.

5. The next question for consideration is whether this revision application requires payment of any Court-fee stamps. This question, in its turn, depends Upon the questionas to whether the revision application, which is contemplated by Section 5(2) of the new Act, is an application which requires to be made to the High Court, or to a persona designata. It is not disputed that if the revision application requires to be made to the High Court, then, under Article 1(f)(iii) of Schedule II to the new Court-fees Act, a Court-fee stamp of Rs. 5 would be required to be paid. However, on the other hand, it is also not disputed that, if the application requires to be made to a persona designata and not to the Court, then, no Court-fee stamps are payable on this revision application. This question requires to be determined on the language used by the Legislature in Sub-section (2) of Section 5. That Sub-section states that the decision of the Taxing Officer is subject to revision 'by the Chief Justice or such Judge of the High Court as the Chief Justice shall appoint'. I have come to the conclusion that the revision application is to a persona designata and not to the High Court. If the Legislature intended the High Court as the revising authority, then, nothing was easier for the Legislature than to use the expression 'High Court7 instead of the long and tortuous expression which I have reproduced above. The question whether a revision application is to a Court or to a designated person has arisen in this Court in a number of cases arising under different statutes. It is not necessary for me to refer to all the decisions except to say that the language which has been used in Sub-section (2) of Section 5 is almost the same as the language which has been used in those statutes in which the expression has been construed to refer to persona designata. I need refer only to one decision on the subject which was under Section 15 of the Bombay City Municipalities Act. Sub-section (1) of this section expressly states that an election petition may be made to the District Court within which the election was held. After so stating, Sub-section (2) states that an inquiry shall be held by a Judge not below the grade of an AssistantJudge. In spite of the fact that Sub-section (1) stated in express terms that the application was to be made to the District Court, sub-is. (2) was construed to mean that the inquiry was to be by a persona designata and not by the Court itself. It was so held in Jagmohan v.Venkatesh (1932) 35 Bom. L.R. 89 wherein the view was expressed that the expression 'Judge' as used in subs. (2) has reference to the presiding officer of the Court by designation and not to the Court itself. The facts of the present case are much weaker than the facts obtaining in the above case. A distinction must be made between a Court and the presiding officer of the Court. Ordinarily, if the Legislature intended to invest a Court with certain powers, then, the presumption would be that the Legislature would use the word 'Court', but, if the Legislature uses, instead of the word 'Court', the expression the 'Judge' or the 'presiding Officer of the Court', then, the presumption would be that the Legislature wanted to make a distinction between the Court itself' and the presiding officer of the Court. Whilst this would be so in ordinary cases, it certainly should be so whilst construing a taxing statute. It is well settled that a taxing' statute has got to be construed strictly, and a subject is not to be charged with a fee unless the Ian guage of the statute requires one to do so. In the present case, I do not find any good reason as to why the Legislature should not have used the expression. 'High Court' if really it intended that the matter should be dealt with by all the Judges of the High Court, and not merely by the Chief Justice or some-other Judge to be designated by him. Therefore, the expressionby the Chief Justice or by such Judge of the High Court as the Chief Justice shall appoint' referred to in Sub-section (2) of Section 5, refers to designated persons and does not refer to the High Court and as such, a revision application under Sub-section (2) of Section 5 of the new Act does not come within the purview of Article 1(f)(to) of Schedule II to the new Court-fees Act, XXXVI of 1959, and it does not require to be stamped.

6. The next question for consideration is whether the memo. of appeal in the present case has or has not been sufficiently stamped. Although the matter has got to be decided with reference to the provisions of the new Act, having regard to the second proviso to Section 49 of that Act, the Court-fees which are payable by the appellant are those which were payable under the old Act. That proviso states that 'all the fees shall be charged and collected under that Act at the rate in force on the date on which the document chargeable to Court-fee is or was presented'. Therefore, the Court-fees payable by the appellants are those which were fixed by the old Act. It is not disputed that the memo. of appeal does bear a proper Court-fee stamp on the basis that the appeal is directed against the decree for possession. But the Taxing Officer has taken the view that it is not properly stamped, because, in his view, the memo. of appeal should also have been directed against the decree for past and future mesne profits. The view which he has taken is that the present appeal necessarily involves the determination of the question of past and future mesne profits also. I am not in agreement with this view and the same has not been supported by the learned Government Pleader. An appellant is at liberty to prefer an appeal against a part of the decree and he is not bound to prefer an appeal against the whole of the decree. In the present case, Mr. Pendse states that he does not wish to^ prefer an appeal against that part of the decree which directs an inquiry into the past and future mesne profits. It may be that some complications may arise as a result of the position taken up by Mr. Pendse. But, in determining the question of Court-fees, this is entirely irrelevant. What Court-fees are to be paid on a certain document must necessarily depend upon the contents of the document, and if the document relates to an appeal against a part of the decree, then, the Court-fees must be determined on the basis that the appeal is directed against that part only and not on the basis that the appeal should have been directed against some other part of the decree also.

7. Therefore, for the aforesaid reasons, my findings are: that no Court-fee is payable on the present revision application; that the decision of the Taxing Officer was subject to revision under Sub-section (2) of Section 5 of the Bombay Court-fees Act XXXVI of 1959; and that the memo. of appeal presented by Mr. Pendse was correctly stamped. I direct that further proceedings shall be started on the memo. of appeal in accordance with law. No order as to costs.


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