1. This revision petition gives rise to an important question relating to court-fees whether court-fees is payable on the memorandum of compromise in a suit for declaration of title and of recovery of possession of immovable property, whereunder the defendants is entitled for payment of certain sums of money from the plaintiff.
2. The material fats may briefly be sated; In art performance of an agreement of sale dated June 18, 1959 executed by the second respondent in respect of Amar Talkies, Hyderabad ownered by him for a sum of Rs. 1,75,000/- the petitioner and the third respondent the vendees were put in possession of the talkies. The vendor had received various sums of money towards sale consideration from the petitioner. In the year 1954 the third respondent had relinquished his interest in favour of the petitioner. The petitioner was therefore in sole and exclusive possession and enjoyment of Amar Talkies. Hyderabad till disputes arose between the parties in the year 1958 regarding the possession of the talkies. No registered sale deed was executed by the vendor. Disputes relating to possession of talkies arose between the vendor and vendees.
The possession of the petitioner was declared by the Munsif- Magistrate, Hyderabad West, under Section 145 of the Code of Criminal Procedure, in his order dated 29-6-1959. O.S.No. 21/60 on the file of the Court of the Additional Chief Judge, City Civil Court, Hyderabad for declaration of his title and for recovery of possession of Amar talkies, making the vendees as defendants 1 and 2 was filed by the second respondent. The first defendant-petitioner contested the suit contending inter alia that he was the owner of the suit property on the basis of the agreement of sale pursuant to which he had paid the sale consideration and was put in possession of the property. The parties ultimately entered into a compromise and filed memorandum of compromise and filed memorandum of compromise on the basis of which a compromise decree was passed on November, 27. 1961. Under the compromise, plaintiff's title to and possession of the suit property was declared but he has to pay Rs. 95,000/- to the first defendant.
Pursuant to the compromise decree, a sum of Rs. 13,252/- was paid at the time of recording of the compromise and Rs. 5,000/- within eight days from the date of the decree and a sum of Rs. 21,748 lying in the Criminal Court was permitted to be withdrawn by the first defendant. The balance of Rs. 55,000/- is payable with interest at 12% per annum within a period of six months and the decree was agreed to be executable. At the time of the withdrawal of the amounts, the defendants was required by the Court to pay him under protest. Thereafter on November, 22, 1961 the petitioner was demanded a further sum of Rs. 718-80 towards court-fees on the ground that the decree is an executable one and that the parties transferred into opposite camps and the first defendant had obtained a decree for money. Hence, this civil revision petition.
3. Sri M.V. Subbarao, for the petitioner contends that no court-fees is payable by his client on the document called memorandum or compromise. This claim of the petitioner is opposed by the Government pleader contending inter alia that the compromise decree is an executable one and the defendant who had obtained the decree for money must pay the court-fees on that sum.
4. Hence the question that arises for decision is, whether court-fees is payable on the compromise memorandum.
5. For a proper appreciation of the question it is necessary to refer to the material provisions of the Andhra pradesh Court-fees and Suits Valuation Act, 1956 (hereinafter called the Act). The Act which came into force on May 1, 1956 in respect of Andhra area, was made applicable by the amending Act 4 of 1958 to the entire State of Andhra Pradesh from April 1, 1958. Chapter II comprising Sections 4 - 9 of the act deals with the liability to pay court-fees. Section 4 is the charging section which makes every document which is filed. exhibited or recorded in or be acted on or furnished by any Court including the High Court chargeable to court-fees as per the provisions of the Act.
In the same way, no document which is chargeable with court-fees shall be filed, exhibited or recorded in any public office. The language of Section 4 makes it abundantly clear that no document without payment of the requisite court-fees under the Act shall be filed, exhibited or recorded in or be acted on or furnished by, any Court or Public Officer. Section 5 provides for collection of proper fee on the documents produced or received in any Court or public Officer. Section 6 deals with the levy in court fees in cases of multifarious suits. By plaint of the purpose of determining the market value of any property, in respect of which court fees is payable must be taken as the basis.
Section 8 provides for the levy of court-fees on a written statement, pleading, set off or counter claim in the same manner as the plaint. Where the document falls under two or more descriptions in the Act thereby making it liable to be charged with different court-fees. the highest of such fees is liable to be charged. Chapter III deals with the determination of court-fees and Chapter IV provides for the computation of the fees.
6. In so far as the suits in civil Courts are concerned, the court-fees is chargeable on the plaint. The quantum of court-fees, no doubt depends upon the nature of the suit and the value of the subject-matter of the suit as per the provisions of the Act. The plaint is invariably chargeable to court-fees , whereas the written statement is not exigible to court fees except in cases falling under Section 8 of the Act. Where a set off is pleaded or counter claim is made court-fees under the Act is chargeable on that document in the manner as the plaint. In the absence of any set off or counter claim in the written statement, the defendant cannot be called upon to pay court-fees except in a suit for menses profits and accounts or partition (vide Section 34(3) or on a mortgage (Vide sub-sections (2) , (4) and (7) of Section 31).
7. The Act is indisputable a taxing statute. A taxing statute must be strictly interpreted. Firscal enactment has to be construed only according to the well known canons of interpretation. It is neither just proper, nor permissible to strain the words or expressions in a taxing statute in order to sustain the import. The levy of any tax must be specifically provided under the charging section or sections. as the case may be. There should be no ambiguity in the imposition of the tax or the court-fees. Where there exists any ambiguity in the language of the charging section of a taxing statute, the benefit should go to the citizen but not on to the State. No provision under the Act or the rules made thereunder imposing liability to pay court-fees under the Act on a written statement not falling under Section 8 of the Act or memorandum of compromise has been brought to my notice. When once it is not in dispute that no specific provision under the Act had been made by the legislature to charge court-fees on a written statement or a memorandum of compromise it is not open to the court to demand the payment of court-fees on such documents.
8. I shall now turn to the cases fitted before me. It appears there is no direct case of this Court or any other Court on the point at issue. In Nagu v. Yeknath. (1881) LIR 5 Bom 400, it was held that written statements tendered under Section 110 of Act X of 1877 could be written on pain paper and no express provision under that Act of the levy of fee on written statements tendered at the first hearing, was made. A division bench of the Madras High Court in a Reference under Court-fees Act 1870. (1902) LIR 25 Mad 24, took the view that no stamp duty on memorandum of objections filed by a respondent in an appeal under Section 61 of the Code of Civil Procedure need be paid before the date of hearing, although court-fees is livable under the special provisions in Section 16 of the Court fees Act, 1870. In Ramaswami v. Rangawami, AIR 1931 Mad 683. it was held that the other creditors of the estate who came in with claims after the preliminary enquiry for administration has been passed in an administrative suit, are not liable to pay court-fee as no specific provision in the Court Fees Act was found requiring court-fee to be paid on such claims. The aforesaid decisions support the view expressed by me that no court-fee is chargeable on any document in respect of which no specific provision in the Act has been made.
9. In the light of the aforesaid discussion, I shall now propose to examine the facts of the present case. As observed by the Supreme Court in Sathapa Chettiar v. Ramanatha Chettiar, : 1SCR1021 . 'the question of court-fees must be considered in the light of the allegations made in the plaint and its decision cannot be influenced either by the please inthe written statement or by the final decision of the suit on the merits'. The plaintiff has sued the defendants in the in state case for declaration of his title and recovery of possession of Amar Talkies. The plaintiff is undoubtedly liable to pay court-fees on the plaint. The case set up by the defendants in the written statement was that the plaintiff was not the owner of the Amar Talkies and he was not entitled for a decree as prayed for in the plaint.
It was further averred that the petitioner herein was having title and possession to the suit property and the suit should be dismissed. It is not the case of the Government Pleader that the Written Statement filed by he Petitioner in the suit is one within the meaning of Section 8 of the Act. As per the term of the memorandum of compromise filed by the parties. the plaintiff whose right to the ownership and possession of Amar Talkies had been declared, was made to pay a sum of Rs.95,000/- to the 1st defendant. In other words, the plaintiff had agreed under the compromise to repay the amounts received by him from the Ist defendant pursuant to the agreement of sale. Hence, the memorandum of compromise is neither a written statement that falls within the meaning of Section 8 nor a plaint on which court-fee is payable.
In the circumstances, by no stretch of reasoning, it can be said that it is a document under which a claim has been made by the defendant to receive the amount from the plaintiff. As pointed out earlier, there is no specific provision in the Act or the Rules made thereunder empowering the Court to levy court-fee on a memorandum of compromise. Nor is it the case of the Government Pleader that the memorandum of compromise as such is chargeable with court-fee under any specific provisions of the Act. I am unable to agree with the contention of the Government Pleader that court-fee is exigible on a sum of Rs. 95,000/- payable by the plaintiff to the first defendant under the decree which is an executable one and the parties have only exchanged the positions. This submission, though at first blush appears to be attractive, is devoid of any substance. The petitioner is not liable to pay court-fee on this amount of Rs. 95,000/- as he did not set up any counter claim in this written statement. There is fallacy in this plea of the execute the decree and realise the amount in case the plaintiff commits default. In the instant case, the assistance of the Court also has not been sought inexecution of the decree.
10. There is another weighty reason to reject the plea of the Government pleader. As per Clause 17 of the compromise decree it is the plaintiff but not the Ist defendant that is liable to pay court-fees due and payable in the present case to the State. It appears the resent case to the State. It appears the requisite course-fee in fact has been paid by the plaintiff on the plaint. It appears the requisite course-fee in fact has been paid by the plaintiff on the plaint. The value of the relief in the plaint was more than Rs.95,000/- on which court-fee was in fact paid by the plaintiff on the plaint. The value of the relief in the plaint was more than Rs. 95,000/- on which court-fee was in fact paid by the plaint was more than Rs.95,000/- on which court-fee was in fact paid by the plaintiff. Judged from any angle. the demand made by the Court below on the first defendant-petitioner to pay court-fee on the memorandum of compromise is illegal, without jurisdiction and unjust and is liable to be set aside.
11. In the result, the civil revision petition is allowed with costs. The court-fee demanded, if already found to have been paid by the petitioner is directed to be refunded to him.
12. Petition allowed.