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Mohammad Salim Ullah Khan Vs. Khan Bahadur Maulvi Khalil-ur-rahman Khan - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in140Ind.Cas.47
AppellantMohammad Salim Ullah Khan
RespondentKhan Bahadur Maulvi Khalil-ur-rahman Khan
Cases ReferredIn Damodar Prasad v. Masudan Singh
Excerpt:
court fees act (vii of 1870), schedule i, article 11(d) - civil procedure code (act v of 1908), order xli, rule 26--memorandum of objections--whether liable to court-fee. - - ' fiscal statutes must be strictly construed and if a document is not clearly chargeable under the statute the person sought to be charged in respect of document is entitled to the benefit of doubt......a court-fee is chargeable upon a memorandum of objection filed under order xli, rule 26, civil procedure code.3. there is no express provision in the act making such a document liable to i he payment of a court-fee. the practice hitherto has been to levy a court-fee of rs. 2 on such documents. it is suggested that this practice is justified under article 1(d) of schedule ii which makes an application or petition presented to a high court chargeable with a court-fee of rs. 2. the question is whether a memorandum of objections filed under order xli, rule 16, civil procedure code, should be held to be an application or petition presented to the high court. in my opinion the answer is in the negative. the memorandum does not request the court to take any action or to pass any order. its.....
Judgment:

King, J.

1. This is a reference under Section 5 of the Court Fees Act, 1870.

2. The question is whether a court-fee is chargeable upon a memorandum of objection filed under Order XLI, Rule 26, Civil Procedure Code.

3. There is no express provision in the Act making such a document liable to I he payment of a court-fee. The practice hitherto has been to levy a court-fee of Rs. 2 on such documents. It is suggested that this practice is justified under Article 1(d) of Schedule II which makes an application or petition presented to a High Court chargeable with a court-fee of Rs. 2. The question is whether a memorandum of objections filed under Order XLI, Rule 16, Civil Procedure Code, should be held to be an application or petition presented to the High Court. In my opinion the answer is in the negative. The memorandum does not request the court to take any action or to pass any order. Its object is to inform the court and the opposite party that the objector challenges the findings of the court below on certain points or on certain grounds. I do not think it can properly be held to be either an 'application' or a 'petition.' Fiscal Statutes must be strictly construed and if a document is not clearly chargeable under the Statute the person sought to be charged in respect of document is entitled to the benefit of doubt.

4. In Damodar Prasad v. Masudan Singh 105 Ind. Cas. 108 : A.I.R. 1928 Pat. 85 a single Judge of the Patna High Court has expressly held that no court-fee is chargeable upon a memorandum of objections filed under Order XLI, Rule 26. I agree to his reasoning and conclusion.

5. No authority to the contrary has been shown to me.

10. Following the ruling cited I hold that no court-fee is chargeable upon a memorandum of objections filed under Order XLI, Rule 23, Civil Procedure Code.


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