1. This is a reference made by the Taxing Officer to me as Taxing Judge under Section 5 of the Court Fees Act, The matter is one of some importance, in that it affects a practice of this Court which has been regularly observed for many years.
2. A second appeal was filed in this Court, which under the rules in force was triable by a Single Judge of the Court. The defendants were the appellants and the appeal was dismissed by Mr. Justice Rafique sitting alone. Under Section 10 of the Letters Patent an appeal has now been filed against the judgment of the Single Judge, and the question is whether or not this petition of appeal must bear a Court-fee stamp upon it. In the past Court-fees have regularly been levied on such appeals from judgments of Single Judges of this Court, Chapter II of the Court Fees Act is that portion of the Act which relates to fees in High Courts and in Courts of Small Causes at the Presidency Towns. Section 4 is the only section which lays down in what circumstances Court-fees must be levied in High Court. It says: No document of any of the kinds specified in the First or Second Schedule to the Act, as chargeable with fees, shall be tiled, exhibited or recorded in, or shall be received or furnished by, any High Court in any case coming before such Court, firstly, in the exercise of its extraordinary original civil jurisdiction; secondly, in the exercise of its extraordinary original criminal jurisdiction, thirdly, in the exercise of its jurisdiction as regards appeals from, the judgment of two or more Judges of the said Court, or of a Division Court; fourthly, in the exercise of its jurisdiction as regards appeals from the Courts subject to its superintendence; fifthly, in the exercise of its jurisdiction as a Court of reference or revision, unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said Schedules as the proper fee for such document.'
3. It is quite clear that the present petition of appeal tomes before this Court in the exercise of its jurisdiction as regards an appeal from a judgment of a Single Judge. Section 4 nowhere mentions this jurisdiction as one of those in the case of which Court fees have to be levied in accordance with Schedules 1 and 2 of the Act. Where the Court is exercising its jurisdiction as regards appeals from the judgment of two or more Judges, it is clear that the Court fee must be levied according to the above-mentioned Schedules, or where the Court is exercising its jurisdiction as regards an appeal from a Division Court. In this High Court at present there is no such thing as a Division Court. Section 27 of the Letters Patent lays down:
Any function which may be performed by this High Court in the exercise of its appellate jurisdiction may be performed by any Judge or by any Division Court thereof appointed or constituted for such purpose in pursuance of Section 108 of the Government of India Act of 1915.
4. Section 108 lays down:
That each High Court may by its own rules provide, as it thinks fit, for the exercise, by one or more Judges or by Division Courts constituted by two or more Judges of the High Court, of the original and appellate jurisdiction vested in the Court.
5. So far as I am aware, no Division Courts have ever been constituted in this High. Court, It is quite clear, therefore, that the present case is not covered by Section 4 of the Court Fees Act. There being, therefore, no law under which this Court is bound to levy Court-fees in the present instance, the petition of appeal must be received without any Court-fee whatsoever. It is difficult to say why the present class of case has not been considered in Section 4 of the Court Fees Act. It may be that the word 'two' in the clause which governs appeals under the Letters Patent was in error written for 'one,' If that clause ran as follows:
or in the exercise of its jurisdiction as regards appeals from the judgment of one or more Judges of the said Court or of a Division Court,
6. the clause would cover the present case. But for some reason unknown to me the word 'two' has been used, and the Act does not cover the case of an appeal from the judgment of a Single Judge under the Letters Patent, unless that Single Judge constitutes a Division Court: though it seems to me that under Section 108 of the Government of India Act a Division Court cannot under that section consist of loss than two Judges. I, therefore, hold that no Court-fees are leviable on the present petition of appeal.