1. This is a referencey by the taxing officer to the question as to whether a court-fee stamp should be affixed to written statements which are filed opposing an application by the Official Liquidator under the Companies Act, to set aside certain transfers as fraudulent. Under the Companies Act, the procedure is similar to the procedure under the Provincial Insolvency Act. That however does not throw much light on the matter because there is no special provision under that Act. These proceedings under either of these Act are apparently miscellaneous cases within the meaning of the General Rules (Civil) for Courts subordinate to the High Court of Judicature at Allahabad, and miscellaneous cases are classified in the annual returns under Chap. 16, p. 193, from No. 95. A foot-note however to that form states that applications under the Provincial Insolvency Act 5 of 1920, are not to be entered in that particular statement, Form No. 95, and apparently they are separately entered. They are however clearly miscellaneous cases. Under Section 4, Court-fees Act, it is provided that (or every document filed in any Court of the kind specified in the first or second schedule a court-fee stamp is required.
2. It is therefore necessary for the learned Government Advocate to show that the documents in question come under the first or second schedule. He argues that they come under Article 1, Schedule 2, as an application or petition. No doubt the application of the Official Liquidator to have the transfer sat aside does come under that article and it has been stamped with a Rs. 3 court-fee stamp under that article, but it is claimed on behalf of the opposite party that their application in reply amounts to a written statement, and is therefore exempted from the court-fee dutyunder Section 19(iii) which exempts 'written statements called for by the Court after the first hearing of a suit.' As regards written statements in a regular suit it is stated in Schedule 1, Article 1, that a written statement pleading a set off or a counterclaim is liable to stamp duty; that is, written statements which do not plead a sot off or counterclaim are not liable to stamp duty, ft is claimed however by the learned Government Advocate that this exemption only applies in the ease of a suit. There is no definition of a suit con-tained in the Civil Procedure Code, but that; is a definition of 'decree' in Section 2(2) as the formal expression of an adjudication which conclusively determines the right of the parties in regard to the matter in controversy in the suit. Section 141 provides that the procedure for suits shall be followed in all proceedings in any Court of civil jurisdiction. The question is whether the exemption from stamp duty on the written statement in Section 19(iii) should be limited to written statements in a suit and should not be allowed in the case of written statements in a miscellaneous case. I do not consider that the rule should be interpreted to exclude the written statement in a miscellaneous case. There is no reason to suppose that the Legislature would have allowed a written statement in a suit to be free of stamp duty and have intended that the written statement in a miscellaneous case should be liable to stamp duty. There would be no reason to make such a distinction. If the Legislature desires to make such a distinction then it ought to be clearly provided in the Court-fees Act, that the written statement in a miscellaneous case shall be liable to stamp duty as an application or petition. Under the circumstances I consider that it is not necessary for the written statements in the present miscellaneous cages to be stamped. Let this finding be returned to the taxing officer.