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Haribunsha Singh Deo Vs. Sudhanshu Sekhar Singh Deo and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberF.A. Nos. 45 to 48 of 1948
Judge
Reported inAIR1951Ori265
ActsCourt-fees Act, 1870 - Sections 5
AppellantHaribunsha Singh Deo
RespondentSudhanshu Sekhar Singh Deo and ors.
Appellant AdvocateP. Misra and ;L.K. Das Gupta, Advs. in Nos. 45 and 47 respectively
Respondent AdvocateS.N. Sen Gupta, Adv.
Cases Referred and Gangaram Tillockchand v. Chief Controlling Rev. Authority
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period 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..........of the question by a bench of the court or by any other judge of the court, unless the chief justice constitutes that judge as the taxing judge specially for the particular matter or unless the chief justice chooses to deal with the matter himself. in deoji goa v. tricumji jivandas, a. i. r. (52) 1938 pat. 896 : (14 pat. 668 s. b.), wort j appears to have been of the opinion that the taxing officer had jurisdiction to refer a question arising under schedule , court-fees act to a bench. he relied on the argument that the section when it provides for reference to 'such judge' in the singular, contemplates the plural also. it appears to have been thought that the chief justice could appoint a bench of two judges ''especially in this behalf to hear a particular matter ' it.....
Judgment:

Jagannadhadas, J.

1. These appeals have been posted before this Bench for orders in connection with the payment of alleged deficit court-fees payable by the respective appellants in each of the appeals. All these appeals have been made analogous since they are against a common judgment in separate suits tried together. The alleged deficit court-fee payable is only in respect of the appeal memoranda to this Court. There is be question before us now of any deficit payable by any of the appellants in these appeals on their plaints in the trial Court.

2. The question that has been raised is whether this Bench has the jurisdiction to deal with this matter. The determination of the proper court-fee payable on an appeal memorandum to the High Court is regulated by Schedule , Court-fees Act. Under that section, when a difference arises as to the court-fee payable, the question is to be determined primarily by the taxing officer of the High Court. The taxing officer under the said section may, in a proper case, refer the matter to the taxing Judge. There is no provision for the determination of the question by a Bench of the Court or by any other Judge of the Court, unless the Chief Justice constitutes that Judge as the taxing Judge specially for the particular matter or unless the Chief Justice chooses to deal with the matter himself. In Deoji Goa v. Tricumji Jivandas, A. I. R. (52) 1938 pat. 896 : (14 Pat. 668 S. B.), Wort J appears to have been of the opinion that the taxing officer had jurisdiction to refer a question arising under Schedule , Court-fees Act to a Bench. He relied on the argument that the section when it provides for reference to 'such Judge' in the singular, contemplates the plural also. It appears to have been thought that the Chief Justice could appoint a Bench of two Judges ''especially in this behalf to hear a particular matter ' It appears to me, with great respect, that this argument; is not sound as a matter of construction. The wording used in the Section.

'he shall refer it to the final decision of the Chief Justice or such Judge of the High Court as the 6hief Justice shall appoint either generally or specially in this behalf.'

It appears to me to be clear that the juxtaposition of the phrase 'such Judge.' with the phrase 'Chief Justice' indicates that a single Judge is meant and that it can have no reference to a Bench of Judges. In the above reported case, the other two learned Judges have not in terms dealt with this point. On the other hand, there are quite a number of cases in which it has been repeatedly held that neither the taxing officer nor the taxing Judge has the power to refer a matter arising under Schedule . Court-fees Act to a Bench of the Court and that on a proper reference such a matter has to be decided only by the taxing Judge. It is sufficient to refer to the cases in Kuldip Sahai v. Harihar Prasad, A. I. R. (11) 1924 Pat. 161 : (3 Pat. 146), Krishna Mohan Sinha v. Raghunandan Pandey, A. I. R. (12) 1925 pat 392 : (4 Pat. 386 F.B), Dhanukdhari Prashad v. Ramadhakari, A.I.R. (20) 1933 pat. 81 : (12 Pat. 188), Khachera v. Kharag Singh, 33 ALL. 20 : (7 I.C. 3l5) and Gangaram Tillockchand v. Chief Controlling Rev. Authority, A. I. R. (14) 1927 Bom. 648 : (52 Bom. 61) in support of the above view.

3. We are, therefore, of the opinion that this matter cannot be dealt with by us as a Bench. The matter will be placed before the taxing Judge for his decision and it is open to him to treat this as a reference by the taxing officer to the taxing Judge and deal with it accordingly.

Narasimham, J.

4. I agree.


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