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The State of Uttar Pradesh Vs. Raja Ram - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Civil Appeal No. 362 of 1954
Judge
Reported inAIR1960All588
ActsCode of Civil Procedure (CPC) , 1908 - Order 3, Rule 4 - Order 27, Rule 9; Court-fees Act, 1870 - Schedule - Articles 10 and 254; Uttar Pradesh Court-fees Act, 1958
AppellantThe State of Uttar Pradesh
RespondentRaja Ram
Advocates:Standing Counsel
Excerpt:
civil - memorandum of appearance - order 3 rule 4 of code of civil procedure, 1908 - change in standing counsel - fresh memorandum of appearance duly stamped to be filed - procedural requirement - payment of stamp duty - governed by the court fees act, 1870. - .....the defence of a suit against an officer of the government, he shall, in lieu of a vakalatnama, file memorandum on un-stamped paper signed by him and stating on whose behalf he appears. such memorandum shall be, as nearly as may be, in the terms of the following form.'5. it was contended that by virtue of this rule he was entitled to file a memorandum without any stamp. so far as the filing of a memorandum of appearance instead of a vakalatnama is concerned, it is a matter of procedure which could be guided by the code of civil procedure, but so far as the question of paying stamp duty is concerned, it is a matter relating to court-fee and we have to be governed by the court-fees act. learned counsel has placed reliance on article 254 of the constitution for the proposition that the.....
Judgment:
ORDER

V.D. Bhargava, J.

1. There are two objections by the office in the present case.

2. The appeal was filed in the year 1954 by Mr. B. N. Roy who was one of the Standing Counsel. Later on the Standing Counsel was changed by the Government and no memorandum of appearance has been filed by the new .Standing Counsel. An objection was raised by the office and the Standing Counsel was permitted to file his power on behalf of the appellant, which was the State, on 28-7-1949. As no action has been taken by the Standing Counsel to file the power on behalf of the appellant, the matter has been put up before me.

3. Learned counsel for the State has taken two objections. Firstly, his contention is that if at any time any Standing Counsel has appeared it is no longer necessary thereafter for his successor in office to file a vakalatnama or memorandum of appearance. His argument was that he appears in a case by virtue of his being a Standing Counsel, and whosoever he may be, he will be deemed to be counsel for that case. I am unable to agree with that contention. There is an agreement between the State Government as a client and the different Standing Counsel that they shall be appearing exclusively for the State in all cases. So far as this Court is concerned, in its eye the State counsel is also a counsel. Supposing a litigant, who has a number of eases, appoints its own standing counsel and changes them from time to time and if a change take place and it is urged on behalf of that client that no fresh vakalatnama is necessary, that could not be allowed. Similarly, in the present case the successor of Mr. Roy cannot be allowed to appear unless he has filed the power. Therefore, the present Standing Counsel has to file a power on behalf of the appellant.

4. The next question raised by the Standing Counsel was that if he were to file a vakalatnama he could do so without any stamp on it and reliance was placed on Order 27 Rule 9 which has been added by this Court to the Code of Civil Procedure and which reads as follows:

'In every case in which the Government Pleader appears for the Government as a party on its own account, or for Government as undertaking, under the provisions of Rule 8(1), the defence of a suit against an officer of the Government, he shall, in lieu of a vakalatnama, file memorandum on un-stamped paper signed by him and stating on whose behalf he appears. Such memorandum shall be, as nearly as may be, in the terms of the following form.'

5. It was contended that by virtue of this rule he was entitled to file a memorandum without any stamp. So far as the filing of a memorandum of appearance instead of a vakalatnama is concerned, it is a matter of procedure which could be guided by the Code of Civil Procedure, But so far as the question of paying stamp duty is concerned, it is a matter relating to court-fee and we have to be governed by the Court-fees Act. Learned counsel has placed reliance on Article 254 of the Constitution for the proposition that the Code of Civil Procedure being a Central law should prevail over the State law and, therefore, if in one of the Central Legislations this provision has been introduced the local amendments to the Court-fees Act should give way to it.

Article 254 applies to a law made by the Parliament, which the Parliament is competent to enact. Matters of court-fee do not occur either in List 1, which is the exclusive jurisdiction of the Parliament, or List III which is of concurrent jurisdiction. But it occurs as Item No. 3 in List II which is within the exclusive jurisdiction of a State. Therefore, the Parliament is not competent to enact on matters of court-fee. The exclusive jurisdiction at the present moment is that of the State.

In Item No. 96 of the first list fees in respect of the matters contained in that List has been given to the Paliament to legislate upon, but fees on documents in court has been expressly excluded. Similarly by Item No. 47 of List III fees taken in any court has been expressly excluded. The intention of the Constitution is, therefore, that so far as matters of court-fee are concerned, they should be within the exclusive Jurisdiction of the State and State alone. Under the circumstances the provisions of the Court-fees Amendment Act (Act 44) of 1958 will prevail over the provisions of the Code of Civil Procedure relating to court-fee, and whether the memorandum of appearance is filed by the Standing Counsel or by any other person, it will have to bear stamp as now enacted.

6. Section 35 of the Court-fees Act specifical-ly authorises the appropriate Government by notification to remit fees in respect of any fees mentioned in Schedules I and II of the Act, and under that section it will be open to the State Government to issue a notification. But the amendment of the Code of Civil Procedure, relating to court-fees could not affect chargeability of court-fees. The learned Standing Counsel, if he has to file any memorandum of appearance, shall stamp it.

7. The learned Standing Counsel in this case prays for, and is granted, 24 hours for filing the memorandum of appearance.


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