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Sham Lal L. Dogarmal Vs. Om Prakash L. Sant Ram Aggarwal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberFirst Appeal No. 139 of 1953
Judge
Reported inAIR1955P& H223
ActsCourt Fees Act, 1870 - Sections 1 and 7; Code of Civil Procedure (CPC) , 1908; Punjab Court Fees Act, 1953
AppellantSham Lal L. Dogarmal
RespondentOm Prakash L. Sant Ram Aggarwal and ors.
Appellant Advocate S.D. Bahri, Adv.
Respondent Advocate S.M. Sikri, Adv. General
Cases ReferredPunya Nahake v. Emperor
Excerpt:
.....of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind..........in '15 suth wr 272 (2) (c)' norman officiating chief justice held that stamp duty upon an appeal filed after the court-fees act, 1870, had come into force can only be levied according to the provisions of that act, even though the original suit was valued on the principles laid down in act xxvi of 1867.9. but it is said that where the court-fee for an appeal is made to depend on the value of the plaint in the case and there is a change in the law of court fee subsequent to the institution of the suit and before the appeal is filed, the value of the plaint for purposes of determining court fee on such appeal must be fixed with reference to law in force at the time of the institution on the suit and not at the time of filing the appeal. in support of this proposition -- 'parmeshar.....
Judgment:

Harnam Singh, J.

1. In Regular First Appeal No. 139 of 1953 the question that has been referred for decision to this Bench is what amount of court fee should be charged on the memorandum of appeal.

2. Briefly summarised the facts of the case are these: On 17-7-1943 Om Prakash instituted suit for the recovery of rupees 16,259-6-0 by the sale of the mortgaged property against Khem Chand, Piare Lal and Sham Lal. In that suit on the basis of compromise final decree for the sale of the mortgaged property was passed against Khem Chand, Piare Lal and Sham Lal. In the execution of that decree the mortgaged property was sold by public auction and purchased by Wazir Chand on 15-12-.1951.

Sham Lal instituted civil suit No. SO of 1952 for declaration that the decree passed on the basis of the compromise was inoperative and that defendants 1 to 3 be restrained from taking out execution proceedings against him. In the Court of first instance the value of the suit for purposes of jurisdiction was stated to be rupees 16,859-6-0 on the plaint court fee worth rupees 10/8 was paid. On 30-3-1953, the suit was dismissed with costs.

3. By Punjab Act XXXI of 1953 the legislature amended Section 7 of Act No. VII of 1870 by the addition of the following proviso to Clause (iv) (c) of Section 7 of the Court Fees Act, 1870, herein after referred to as the Act:

'Provided further that in suits corning under Sub-clause (c), in cases where the relief sought is with reference to any property such valuation shall not be less than the value of the property calculated in the manner provided for by Clause (v) of this section,'

4. Punjab Act XXXI of 1953 was published in the Punjab Gazette, Extraordinary, dated 13-5-1953.

5. From the decree passed in Civil Suit No. 80 of 1952 Sham Lal appealed under Section 96, Civil P. C. That appeal was filed in this Court on 30-6-1953. On the memorandum of appeal court fee worth rupees 10-8-0 was paid.

6. As regards the general principles applicable to the case there is no controversy, The proposition that the law of court fee is procedural law is indeed one which speaks for itself apart from judicial authority. In -- 'Mt. Mohri Kunwar v. Keshri Chandra', AIR 1941 All 298 (A), Dar J. (Ganga Nath J. concurring) said;

'The suitor has a vested right to insist that during the pendency of a litigation which a suitor has started the enactment relating to court-fee shall not be changed and the fee leviable shall not be increased' or reduced either with regard to future applications or with regard to future appeals and he would be entitled to carry on proceedings on the basis of law as it stood when the plaint was filed even though the law is different when be comes to file an appeal or to make an application.'

Plainly, when there is a change in the law as to court-fee between the date of the suit and the date on which an appeal arising from that suit is filed the law in force at the latter date would govern the court fee payable on the appeal. On this point 'Proceedings, 15th November 1870' 5 Mad H.C.R. (Appendix) 44 (B) and -- 'Mt. Bhugobutty Kooer v. Mt. Kustooree Kooer', 15 Suth WR 272 (2) (C), may be seen.

7. In '5 Mad HCR (Appendix) 44 (B)' theoriginal suit from which the appeal arose was instituted when Act XXVI of 1867 was in force. On 11-3-1870, Act VII of 1870 (Court fees Act) came into force. In these circumstances the acting Civil Judge of Coimbatore sought an authoritative ruling on the subject of valuing the appeal preferred since the introduction of Act VII of 1870, the original suit from which the appeal arose having been instituted under Act XXVI of 1867. In deciding that point the High Court ordered on 15-11-1870:

'The High Court are of opinion that thevaluation of an appeal must be according to the Act in force at the time of, its presentation, and that the original valuation under a law obsolete at the period of appeal can have no influence on the decision.'

8. In '15 Suth WR 272 (2) (C)' Norman Officiating Chief Justice held that stamp duty upon an appeal filed after the Court-fees Act, 1870, had come into force can only be levied according to the provisions of that Act, even though the original suit was valued on the principles laid down in Act XXVI of 1867.

9. But it is said that where the court-fee for an appeal is made to depend on the value of the plaint in the case and there is a change in the law of court fee subsequent to the institution of the suit and before the appeal is filed, the value of the plaint for purposes of determining court fee on such appeal must be fixed with reference to law in force at the time of the institution on the suit and not at the time of filing the appeal. In support of this proposition -- 'Parmeshar Kurmi v. Bakhtawar Pande, AIR 1933 All 20 (D), and -- 'Nandi Ram v. Jogendra Chandra Dutta', AIR 1924 Cal 881 (E), are cited.

10. In 'AIR 1933 All 20 (D),' the question that arose for decision was the fee payable on the application for review under Schedule 1 Article 5 of the Act. In deciding that point King J, found:

'The memorandum of appeal, which determines the fee leviable on the application for review, was filed before the amending Act came into force. The question is what fee was leviable on the memorandum of appeal at the time when it was filed. This question is not affected by the subsequent commencement of the amending Act. Precisely the same question arose in AIR 1924 Cal 881 (E).'

In my opinion, AIR 1933 All 20 (D) and AIR 1924 Cal 881 (E) do not govern the point that arises for decision in the present appeal, for court fee payable on appeal in cases falling under Section 7(iv)(c) does not-depend upon the court fee leviable on the plaint. On this point the Madras High Court has ruled in 'Proceedings, 16th January 1872', 7 Mad HCR (Appendix) 1 (F), and --'Punya Nahake v. Emperor', AIR 1927 Mad, 360 (G), that the words 'The fee leviable on the plaint or memorandum of appeal' occurring in the last column of Articles 4 and 5 of Schedule I of the Act

'must be taken to mean the fee which would be leviable on the plaint or memorandum of appeal if there were a fresh plaint or memorandum of appeal seeking the additional relief which the petition of review seeks.'

Finding as I do, that the fee payable on the memorandum of appeal does not depend on the fee leviable on the plaint I do not deem it necessary to examine the conflict between the High Courts at Allahabad and Calcutta on the one side and the High Court at Madras on the other side as regards the court-fee leviable on a petition for the review of judgment.

11. Mr. Som Datta Bahri urges that proviso to Section 7(iv)(c) of the Act has no applicability to appeals.

12. Section 7(iv) of the Act which begins with the words 'in suits' provides that court fee is to be computed according to the amount at which the relief sought is valued in the 'plaint or memorandum of appeal'. Plainly, Section 7(iv) of the Act implies the applicability of the provisions to appeals.

13. Again, in numerous cases reported in books it has been said that when the subject-matter in dispute in an appeal is not different from the subject matter in dispute in the suit in the trial court the appeal will be governed for purposes of court fee by the same provisions as the suit. In case there is no difference in the nature of the relief in dispute the subject matter need not be considered to be different and the appeal will be governed for purposes of court fee by the same provision as it is applicable to the suit though the amount of court fee leviable in appeal may be different. In my judgment, there is no substance in the argument that the proviso to Section 7(iv)(c) of the Act added by Punjab Act XXXT of 1953 has no application to appeals.

14. For the foregoing reasons I find that in Regular First Appeal No. 139 of 1953 court fee leviable is under the proviso to Clause (iv) of Section 7 read with Schedule 1 Article 1 of the Act.

15. I agree.


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