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Tankadhar Nag and anr. Vs. Bishnu Nag and ors. - Court Judgment

LegalCrystal Citation
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 558 of 1948
Reported inAIR1951Ori8; 16(1950)CLT144
ActsCourt-fees Act, 1870 - Sections 5, 12 and 12(2); High Court Rules - Rule 13(4); Orissa High Court Order, 1948
AppellantTankadhar Nag and anr.
RespondentBishnu Nag and ors.
Appellant AdvocateA.N. Purohit, Adv.
Respondent AdvocateG.G. Das, Adv.
Cases ReferredSee Bidhu Bhusan v. Kala Chand
.....of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make a judicial power which can be delegated to the registrar under the letters patent that the registrar's power in this behalf is judicial is also implicit in rule 16 which requires this power of the registrar amongst other in his absence to be performed by a judge. therefore, under the rules the registrar can, if he so chooses; dispose of the matter himself or refer the matter to the court. there is accordingly no substance in the contention that the registrar has no power to deal with this matter. it is the lax use of the word 'taxing-officer' that has given scope for this contention.6. as regards the contention that the registrar has no power to fix the valuation higher than what was reported by the stamp-reporter, it is obvious that this argument is wholly without any.....

Jagannadhadas, J.

1. This matter comes before us on a reference by the Registrar. The only question is as to the court-fee payable by the respondents in this appeal on the memorandum to the lower appellate Court. The plaintiffs filed a suit for declaration of title and recovery of possession and obtained a decree in the trial Court against the defendants. The defendants appealed and succeeded in the lower appellate Court. Hence the plaintiffs have come up with this second appeal and the defendants are the respondents herein.

2. The suit property is 8.23 acres of land and the plaintiffs valued it for purposes of jurisdiction and court-fees at Rs. 70 and paid a fixed court fee of Rs. 15 on the plaint. When the defendants appealed to the lower appellate Court, they adopted the same valuation and paid the same court-fee. The plaintiffs in their turn, did the same when they filed the second appeal in this Court. The valuation was not questioned in the Courts below and has been tacitly accepted. When the plaintiffs filed this second appeal on the assumption that the value of the subject-matter was Rs. 70, the Stamp Reporter objected to the same. He was of the opinion that the suit property which covers 8.23 acres should be worth not less than Rs. 800 and called upon the plaintiffs-appellants to pay D. C. F, on that footing both in the High Court and in the trial Court. The matter was referred to the Registrar, who assessed the value of the property at Rs. 1,000 and called upon the plaintiffs to pay the deficits of the two Court accordingly. The plaintiff though he originally contested the valuation, had ultimately to submit to the order of the Registrar and he paid the D. C. F. of Rs. 226-4-0 on 24th November 1949 and the appeal was admitted on 14th December 1949. The respondent on whom notices were served entered appearance on 18th January 1950. They were thereafter called upon to pay the D.C.F., in respect of their appeal memorandum to the lower appellate Court on the valuation of Rs. 1,000 already fixed, as against the plaintiffs-appellants. The respondents objected to the same and hence this reference.

3. Before the Registrar, two objections were raised (l) that the taxing officer has no jurisdiction to examine and call for the deficit court-fee for the lower Courts; (2) that the taxing officer's jurisdiction is restricted at the maximum to what is reported by the Stamp-Reporter to be the proper value and the deficit. We have no hesitation in overruling both these objections.

4. It is no doubt true that the taxing-officer as such, that is, the officer appointed as taxing officer Under Section 5, Court-fees Act, has nothing to do with the deficit of the court-fees paid in the Subordinate Courts. But in this Court the Registrar is the taxing officer. We must assume that the orders passed against the respondent and the reference to us has been made by the Registrar as such. The power of the High Court to collect the deficit court-fee paid in respect of the plaint or the appeal memorandum in the subordinate Courts is not open to any question. That is specifically provided for by the Court-fees Act, Sections 12(ii) and 28. In the present case, however, the provision which is more appropriate is Section 12(ii). The power under that sub section applies to the deficit in the subordinate Courts payable not only by the appellant, but also by the respondent. This follows clearly from the wording of Section 12(ii) which is perfectly general. Authority for the same is also to be found in Rowlins v. Lachmi Narain, A. I. R. (5) 1918 Pat. 210 : (3 Pat. L. J. 443) and Brij Krishna Das v. Murli Rai, A. I. R. (7) 1920 pat. 656 : (4 Pat. L. J. 703), and other cases. Farther it is now well settled that in order that the power under Sub-section (2) of Section 12, Court-fees Act, may be exercisable it is not necessary that there should be an express decision by the lower Court regarding the court-fee. See Bidhu Bhusan v. Kala Chand, A. I. R. (14) 1927 Cal. 775 : (106 I.C.. 335) and In re, Lakshmi Ammal, A. I. R. (13) 1926 Mad. 96 : (91 I. C. 729).

5. The position of the Registrar in respect of the powers of the Court Under Section 12(ii) would normally be that of an officer of the Court assisting the Court in the discharge of its functions under the sub-section. But by the rules of this High Court, he is also placed on a higher footing. By virtue of R. 13, Sub-rule (4) in chapt. III of the High Court Rules, he is authorised 'to dispose of all matters relating to court fees' This is the power of the Court itself delegated to the Registrar under Clause 38 Patna Letters Patent which by virtue of para. 6, Orissa High Court Order, 1948, applies to this Court. There can be no doubt that the power to dispose of a matter relating to court-fee is a judicial power which can be delegated to the Registrar under the Letters Patent That the Registrar's power in this behalf is judicial is also implicit in Rule 16 which requires this power of the Registrar amongst other in his absence to be performed by a Judge. Therefore, under the rules the Registrar can, if he so chooses; dispose of the matter himself or refer the matter to the Court. There is accordingly no substance in the contention that the Registrar has no power to deal with this matter. It is the lax use of the word 'taxing-officer' that has given scope for this contention.

6. As regards the contention that the Registrar has no power to fix the valuation higher than what was reported by the Stamp-Reporter, it is obvious that this argument is wholly without any foundation, when it is appreciated that the Registrar is exercising the delegated power of the Court itself.

7. The respondent's counsel has, however, raised two further arguments before us. (l) He says that the valuation which has been determined as against the plaintiff at a time when he was himself not before the Court does not bind him. He, therefore, contests the valuation on its merits. (2) He says also that since this is a case that comes up from the Patna State and since the appeal in the lower appellate Court was filed by his clients on 15th October 1947, that is, prior to the integration of the States with Orissa, it is not the Court-fees Act of Orissa that was applicable but only the law relating to the court fees which was prevalent in the state at the time.

8. As regards the first of these points, I agree with the contention that the valuation fixed by the Registrar in the absence of the present respondents cannot bind him and that he must be given a fresh opportunity to contest that valuation. The Registrar has assessed the value of the subject-matter of the suit at Rs. 1,000 relying entirely on the allegation in para. 4 of the plaint that the plaintiffs improved the land at a cost of Rs. 1000. But he has not noticed that in para. 5 of the written statement, the defendants deny totally both the fact of the improvement and the cost of the improvement. Even if the improvement be true, the plaintiff may have exaggerated the claim. It may not also necessarily follow that because a person has had to spend a thousand rupees for improvement, the cost of the land has been added to by one thousand rupees. It may depend upon how much of that investment was well utilised and how much wasted. As against the plaintiff, however, this statement of his might be taken as a piece of evidence though it cannot be held to bind him. But so far as the defendant is concerned, this statement cannot be of much value against him especially where he totally denies the truth of it in the written statement itself. The defendant must, therefore, have the opportunity of adducing material to show the correct value of the suit-land. The value will of course have to be determined on what the Court can accept as evidence and not on mere hypothetical guesswork. It is desirable in this case that the correct valuation should be re-determined in the presence of the plaintiffs. appellants also so that if it is found that the value is less than what the Registrar has previously found, the plaintiffs may also get the appropriate relief.

9. The contention of the learned counsel that the court-fee payable in the Courts below would be not on the footing of the Orissa Court-fees Act, but on the law relating to the court-fees prevalent at the time in the Patna State is also correct. That matter has not been considered by the Registrar presumably because it has not been raised before him. The Registrar will have to investigate and determine what was the proper court-fee payable in this case in the lower Court with reference to the law in that State at the time.

10. This matter will, therefore, have to go back to the Registrar for a proper investigation and decision. He will be free to dispose of the matter finally under the powers vested in him or to refer the matter to the Court once again if so required.

11. I may add that in cases of this kind which raise a question of D.C.F. in the Courts below payable both by the appellant and by the respondent, it is desirable the appeal should first be taken on the file on the appellant paying the court-fee as in the lower Courts and the appeal admitted and then the question of evaluation and the deficits consequent on that in all the Courts should be determined in the presence of both the parties at one and the same time.

Narasimham, J.

12. I agree.

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