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Shaik Saleem BIn Amer Batate Vs. MohsIn BIn Saleh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberS.R. No. 12706 of 1964
Judge
Reported inAIR1966AP239
ActsAndhra Court-Fees and Suits Valuation Act, 1956 - Sections 67(1) - Schedule - Article 16; Criminal Rules - Rule 27
AppellantShaik Saleem BIn Amer Batate
RespondentMohsIn BIn Saleh
Appellant AdvocateB.N. Chobe, Adv.
Respondent AdvocateM.V. Nagaramaiah, Adv. for ;2nd Govt. Pleader for State
Excerpt:
.....67 (1), schedule 2 and article 16 of andhra court-fees and suits valuation act, 1956 - appellant filed criminal revision petition - along with revision petition memorandum of appearance filed by advocate - whether memorandum of appearance entitled to exemption of court fee under article 16 of schedule 2 - exemption from payment of court fee would be available only to memorandum of appearance filed by advocates appearing for persons who are in position of accused - revision petitioner is in position of complainant - held, memorandum of appearance should be stamped with court fee under article 16 of schedule 2. - - on a plain, grammatical reading of the above sub-section, we, arc clearly of opinion that the words 'when appearing for persons proceeded against in criminal cases'..........1. this is a court-tee matter. the simple question raised here is whether or not a memorandum of appearance filed by an advocate along with a criminal revision petition presented to the high court on behalf of a person who is in the position of a complainant should be stamped with a court-fee of rs. 5 as required by article 16 of schedule ii of andhra court fees and suits valuation act, 1956, hereinafter referred to as 'the act.' 2. the question arises in this way: one shaik saleem bin amar batate presented a criminal revision petition to this court under sections 435 and 439 cr. p. c. against the appellate order of the chief city magistrate-cum-additional sessions judge and district magistrate, hyderabad, in criminal appeal no. 11 of 1964, confirming the order of the iind city.....
Judgment:

Basi Reddy, J.

1. This is a court-tee matter. The simple question raised here is whether or not a Memorandum of Appearance filed by an advocate along with a Criminal Revision Petition presented to the High Court on behalf of a person who is in the position of a complainant should be stamped with a court-fee of Rs. 5 as required by Article 16 of Schedule II of Andhra Court Fees and Suits Valuation Act, 1956, hereinafter referred to as 'the Act.'

2. The question arises in this way: One Shaik Saleem Bin Amar Batate presented a Criminal Revision Petition to this Court under Sections 435 and 439 Cr. P. C. against the appellate order of the Chief City Magistrate-cum-Additional Sessions Judge and District Magistrate, Hyderabad, in Criminal Appeal No. 11 of 1964, confirming the order of the IInd City Magistrate, Hyderabad, made in M. C. No. 15 of 1963, whereby an application under Section 195 read with Section 476 Cr. P. C. requesting the court to make a complaint against one Mohsin Bin Saleh for alleged offences punishable under Section 193 and various other sections of the Indian Penal Code, was dismissed. Along with the Revision Petition a memorandum of Appearance was filed by Shri B. N. Chobe, Advocate, is required by Rule 184 of the Criminal Rules of Practice. The Memorandum of Appearance, however, was not lamped with any court-fee. The High Court Office took objection that the Memorandum of Appearance should be stamped with a court-fee of Rs. 5 under Article 16 of Schedule II of the Act. Learned Advocate, however, took the stand that the Memorandum ol Appearance need not be stamped, and wanted the matter to be posted before the Court for orders. The matter came up in the first instance before our learned brother. Mohammed Mirza J. who referred it to a Bench as in his opinion an important point of law was involved.

3. The contention of Shri Chobe is that Sub-section (i) of Section 67 of the Act exempts memoranda of appearance filed by advocates in criminal cases from payment of court-fee. He concedes that under Article 16 of Schedule II, a memorandum of appearance filed by an advocate in the High Court on behalf of a party, is chargeable with a court-fee of Rs. 5 because the expression 'any paper signed by an advocate signifying or intimating that he is retained for a party' occuring in that Article, would naturally include a memorandum of appearance. He, however relies on Sub-section(i) of Section 67 of the Act which reads as follows:

'67. Exemption ol certain documents--Nothing cunt allied in this Act shall render the following documents chargeable with any fee: (i) memorandum of appearance filed by advocates or pleaders when appearing for per-sons proceeded against in Criminal cases;'

Learned Advocate argues that the words 'when appearing for persons proceeded against in Criminal cases 'govern only the preceding word 'pleaders' and not the word 'Advocates appearing before the words 'or pleaders'. In our opinion, this argument is manifestly untenable. On a plain, grammatical reading of the above sub-section, we, arc clearly of opinion that the words 'when appearing for persons proceeded against in criminal cases' govern not only the word 'pleaders' but also the word 'advocates', and the result is that the exemption from payment of court-fee would be available only to memoranda of appearance filed by advocates or pleaders when appearing for persons proceeded against in criminal cases, that is to say, when appearing for persons who are in the position of accused or analogous thereto. In the present case, the Revision Petitioner is in the position of a complainant and is not a person proceeded against in a criminal case. Consequently, the Memorandum of Appearance Bled on his behalf is chargeable with a court-fee of Rs. 5 under Article 16 of Schedule II of the Act.

4. Learned Advocate has referred us to Rule 27 of the Criminal Rules of Practice, but that Rule merely .says that every pleader appearing for the prosecution in any criminal proceeding, shall file in Court a vakalatnama from his client authorising him so to appear but permits the filing of a memorandum of appearance by a pleader defending an accused person, whereas in the case of an advocate, whether he appears for the prosecution in a criminal proceeding or while defending an accused person, a memorandum of appearance would suffice and it is not necessary to file a vakalatnama. It is dif-ficult to see what bearing this Rule has on the question of court-fee. That question is governed by Article 16 of Schedule II of the Act and, as pointed out already, the exemption granted by Sub-section (i) of Section 67 of the Act does not apply to a memorandum of appearance filed by an advocate on behalf of a person who is in the position of a complainant.

5. Learned advocate relied on three decisions:

In re Munirama Reddi, (1909) 5 Mad L. T. 290; Mantikonda Lingayya v. Emperor, AIR 1924 Mad 192. and In re: Ram Dayal De, AIR 1932 Cal 1. These decisions do not throw any light on the question raised before us. In the first two cases, all that was decided was that in a criminal case a lawyer appearing on behalf of an accused peison need not file a vakalatnama but he could file a memorandum of appearance on behalf of the party.

In the third case which dealt with an entirely different matter, there is an observation at page 3 of the report which is against the contention advanced by the learned Advocate in the present case. The observation runs as follows:

'It is not necessary to decide the question whether a memorandum of appearance should bear a court-fee stamp of Rs. 2 as it contains an authority to plead although the authority is filed by the pleader himself; see Abdul Ghaffar v. F. B. Downing. AIR 1926 Pat 246. It may be a question whether the memorandum of appearance is a Vakalatnama within the meaning of Article 10, Schedule 2. The question has not been debated before us and we express no opinion. We may point out, however, that in Madras a memorandum of appearance which is in the nature of a document showing that the plcader has been retained for a party, has to bear a Court-fee stamp as a Vakalatnama by reason of the amendment of the Court-fees, Act. Article 10 by Madras Act 5 of 1922'.

6. We are thus, satisfied that there is no substance in the contention of the learned Advocate. The Memorandum of Appearance filed byhim in the present case should be stamped witha court-fee of Rs. 5. Let the papers be returnad for compliance with the above direction.


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