V.D. Bhargava, J.
1. This is an appeal under Section 6-A of the Court Fees Act.
2. The defendant-appellants filed an appeal in the court of the District Judge, Bulandshanr. Therewas an office report to the effect that there was a deficiency in the court-fee paid. The matter came up before the District Judge for consideration and on 31-3-1951 he held that the court-fee paid was sufficient. At that stage the plaintiff respondent had not put any appearance and that order was passed only after hearing the learned counsel for the appellants. On 13-11-1952, an application was filed by the plaintiff respondent that there was a deficiency in the court-fee paid by the appellants and the appeal was not properly valued. Two questions, therefore, arose before the court below.
(1) Whether the objection of the respondent could be heard after the order dated 31-3-1951 of the learned District Judge, and
(2). Whether in fact there was a deficiency in the court-fee paid and whether the memorandum of appeal was under-valued?
The court held on both these points against the appellants. It came to the conclusion that it was open to it to reconsider that objection and that there was a deficiency in the payment of the court-fee. The deficient court-fee was ordered to be paid within twenty days from 19-2-1953, the date on which the Civil Judge passed the order.
3. Aggrieved by that decision this appeal has been filed by the defendant-appellants under Section 6-A of the Court Fees Act.
4. The learned Civil Jugde had relied on Chhotey Singh v. Surat Singh, AIR 1942 Oudh 385 where it was held by Bennett, J :
'A preliminary objection on the ground of inadequacy of court-fee can be taken by the respondent. But the appeal will not reach this stage unless there has been an admission of it by the Court, which admission implies that the Court has provisionally decided that the court-fee is adequate. Such a provisional decision does not preclude a Court from considering and adjudicating upon an objection as to the adequacy of the court-fee by a party who has not yet been heard upon the point. The decision of the Court on a question of court-fee payable on a memorandum, of appeal which is 'final as between the parties' must be a decision made between the parties on the record and after they have had an opportunity of being heard, and not a mere decision based upon the report of a Munsarim.'
In fact the present case is very analogous to the case reported in AIR 1942 Oudh 385.
5. Learned counsel for the appellants has placed reliance on two decisions of the Madras High Court, in the case of Mahalakshmamma v. Venkatanarayanamurthi, AIR 1941 Mad 626 and Sankaranarayana v. Vasudeva, AIR 1949 Mad 395. A learned Single Judge in the case of AIR 1941 Mad 626 (supra) had held :
'The word 'decided' and the word 'decision' in Section 12(1) are given without any qualifications at all and they must clearly apply to any adjudication by the Court, whether both parties have been heard or only one party has been heard or even if no party at all has been heard. The only essential is that the Court should apply its mind to the questions at issue in arriving at the true calculation of the court-fee. Further questions of court-fee are not questions between the parties to a suit. The subject matter of their litigation has nothing to do with court-fee. It is pre-eminently a matter between the Government and the subject, a matter for the safeguarding of which the Court of course must be the final authority.'
On these observations it was held that the subsequent order calling for an additional payment of court-fee on the memorandum of appeal was contrary to the provisions of Section 12(1) and without jurisdiction.
In the case of AIR 1949 Mad 395 another learned Single Judge had held :
'While admitting a plaint the Court ordered that the question as to sufficiency of court-fee should bo heard in open Court. After hearing the plaintiff's vakil the Court passed an order that the court-fee paid was correct. Subsequently, written statements were filed and issues were framed. When the issue relating to the adequacy of the court-fee came up before the successor, the officer came to the conclusion that the court-fee paid was insufficient and demanded additional court-fee :
Held that the order of the predecessor officer being a judicial order, concluded the question as to the sufficiency of court-fee and his successor was aot entitled to reopen the question afresh. Any error committed by the predecessor in deciding the adequacy of the court-fee at that stage could only be corrected under Section 12(2) of the Court Fees Act.'
These two decisions certainly supported the contention of the learned counsel for the appellant, that it was not open to the Civil Judge to reagitate the matter. It was argued that by the amended Sub-section (3), of Section 6 a question about the deficiency of court-fee in respect of a plaint or memorandum of appeal can be raised by an officer mentioned in Section 24-A, i.e. Chief Inspector of Stamps or Inspector of Stamps, belore proceeding with the suit or the appeal and a finding has to be recorded whether the court-fee paid is sufficient or not. In case the court finds that the court-fee paid is insufficient it shall call upon the plaintiff or the appellant to make the deficiency good. Sub-section (4) of the same section enacts that whenever a question of the proper amount of court-fee payable is raised otherwise than under Sub-section (3), the court shall decide such question before proceeding with any other issue.
6. The argument of the learned counsel is that once a question of sufficiency or otherwise has been decided under Sub-section (3) then it would be a final decision between the parties to the suit under Section 12 and if no objection is taken under Sub-section (3) then and only then an objection can be taken under Sub-section (4). I am unable to agree with this argument. What Sub-section (4) provides is that if the objection is raised under Sub-section (3) it would be decided in accordance with Sub-section (3), but if it is raised 'otherwise' than under Sub-section (3) the court has to decide it as an issue.
The word 'otherwise' does not mean that it is only an alternate plea which can be taken, i.e. if once an objection has been taken by the Chief Inspector of Stamps, it could not be taken under Sub-section (4). To my mind, Sub-section (3) provides an objection to be raised by a Chief Inspector of Stamps and Sub-section (4) gives another and separate right to the party to raise that question by means of a written statement or an application later on. In the first case it will be decided in accordance with Sub-section (3) and in the second case it will be decided, if there is evidence necessary, after taking the evidence, as an issue in the case. The word 'final' in Section 12 of the Court-fees Act means finality as regards its appealability i.e. it would not be an appealable order but it does not preclude the court itself to reconsider the question when the point is raised after notice to the parties.
7. To a certain extent a recent decision of the Supreme Court in the case of Nemi Chand v. Edward Mills Co. Ltd. : 4SCR197 supports that view. While comparing the phraseology of Sections 5 and 12 of the Court-fees Act their Lordships found that there was little conflict between the two sections and they held:
'Perhaps it may be possible to reconcile the provisions of the two statutes by holding that the finality declared by Section 12 of the Court-fees Act means that the parties cannot impugn such a decision by preferring an appeal but that it does not confer on such decisions a complete immunity from examination in a higher court.'
In other words, Section 12 when it says that such a decision shall be final between the parties only makes the decision of the court on a question of court-fee non-appealable and places it on the same footing as other interlocutory non-appealable orders under the Act and it does not mean any more than that. Their Lordships further held that if the court had passed the order by assuming a jurisdiction it did not possess, the order may be revisable.
8. The difficulty has come, on account of the amendment of the Court-fees Act by the Uttar Pradesh Legislature. In the original Act as it had been enacted by the Central Legislature, there was no appeal provided and then the word 'final' in Section 12 had a definite and clear meaning, and it would have the same meaning as had been given by their Lordships of the Supreme Court. By Section 6-A of the Amendment Act the State Legislature has given a right of appeal against the orders demanding excess court-fee and, therefore, strictly speaking they cannot be final orders as originally contemplated by Section 12 of the Court-Fees Act. Thus there appears to be a conflict between Section 12 as interpreted by the Supreme Court and Section 6A of the amended Court-Fees Act.
9. In my opinion the view taken by the court below was correct and I dismiss the appeal. Having regard to the circumstances of the case, I make no order as to costs.
10. As the learned counsel for the appellant asks for special leave to appeal and the point involved is an important point in law, I grant him leave for special appeal.