Yogeshwar Dayal, J.
(1) This matter has been placed before the Court on a reference by the Registry and as per the directions of Hon'ble The Chief Justice for a decision of the question whether the Court can exercise powers under Section 28 of the Court-Fees Act, 1870, after a consent judgment has been delivered, but the decree has yet to be prepared.
(2) The suit out of which the reference arises was filed under the provisions of Order xxxvii of the Code of Civil Procedure for the recovery of Rs. 70,000.00 on the basis of five different cheques. The suit was, however, compromised and a consent decree for Rs. 28,503.33 was passed. This apparently means that the plaintiff gave up the rest of his claim in the suit, and the defendant agreed to have the decree passed for the sum mentioned above. The plaintiff had paid the court-fees on the sum of Rs. 70,000.00. After the passing of the judgment, the dealing Assistant, while preparing the decree, noticed that the court-fees paid on the plaint is deficient in view of Section 17 of the Court-Fees Act. It was noticed by the dealing Assistant that inasmuch as the basis of the suit pertained to five distinct subject-matters and each cheque furnished a separate cause of action for the filing of the suit. the court-fees should have been paid separately for the amount covered by each cheque and not on the consolidated amount. The dealing Assistant was. thus, of the view that the court-fees paid on the plaint was deficient.
(3) The parties readily conceded that the objection that the court- fees paid initially was deficient is correct. But. what is disputed by counsel for the plaintiff is the power of the Court to take any proceedings now under Section 28 of the Court-Fees Act.
(4) Learned counsel for the plaintiff has contended that the Court has no jurisdiction now to call upon the plaintiff to make up the deficiency in court-fees. The contention of Mr. S. S. Dalal, who has appeared on behalf of the Chief Controlling Revenue Authority, is that the Court has such jurisdiction, as there is no limitation provided on orders being passed under S. 28.
(5) Section 3 of the Court-Fees Act is the charging section. The fee for the document to be filed is provided for in Section 6 of the Court-Fees Act and no such document as specified as chargeable in the First or Second Schedule to the Act shall be receivable in Court without payment of the requisite court-fees. If any difficulty should arise regarding the amount of fee to be paid on any documents, S. 12 provides that every question relating to valuation for the purpose of determining the amount of any fee chargeable under this chapter on a plaint or memorandum of appeal shall be decided by the Court in which such plaint or memorandum, as the case may be, is filed, and such decision shall be final as between the parties to the suit: but whenever any such suit comes before a Court of appeal, reference, or revision, if such Court considers that the said question has been wrongly decided, to the detriment of the revenue, it shall require the party by whom such fee has been paid to pay so much additional fee as would have been payable had the question been rightly decided, and the provisions of S. 10, paragraph ii shall apply- Then, S. 28 says that no document which ought to bear a stamp under this Act shall be of any validity unless and until it is properly stamped. But, if any such document, is, through mistake or inadvertence, received, filed or used in any Court or office without being properly stamped, the presiding Judge or the head of the office, as the case may be, or, in the case of a High Court, any Judge of such Court may, if he thinks fit, order that such document be stamped as he may direct; and on such document being stamped accordingly, the same and every proceeding relative thereto shall be as valid as if it had been properly stamped in the first instance.
(6) These are the only relevant sections of the Court-Fees Act which have a bearing on the question in dispute.
(7) The other relevant provisions to be noticed are the provisions of the Code of Civil Procedure, namely, Sections 33 and 149 and Order Vii rule Ii sub-clauses (b) and (c) and Order Xx rules 6 and 7.
(8) While referring to these provisions of the Code of Civil Procedure, it is contended on behalf of the plaintiff that the judgment having been pronounced, the decree must follow, and the Court is unable to direct the preparation of the decree to be postponed until payment of deficient court-fees. It is urged that the judgment having been pronounced and having been signed and sealed, no power is left in the Court to alter it or to add to it or substract anything there from; the judgment having been pronounced, a decree must be prepared in accordance with it. It is urged that S. 28 is merely a validating provision, and can be resorted to by the Court while the suit is still pending in the Court. Again, it is urged that while the suit is still pending, the plaintiff can give up any part of the claim, and in that case, the plaint will be restricted to the claim surviving, and the plaintiff would no longer be having any liability to pay court- fees on the claim as initially laid. It is also urged that if the plaintiff insists on continuing with his suit and the plaint is deficiently stamped, the Court can take recourse to the provisions of Order Vii rule 11 of the Code of Civil Procedure, and in case the Court calls upon the party to pay up the deficiency in court-fees, it is only in that case that the validating part of S. 28 comes into play, otherwise, it may lead to serious consequences, inasmuch as the validation may have been only with effect from the date when the court-fees is made up, and that would have affected the limitation for the suit. it is, thus, urged that the proceedings, which are validated subsequent to the deficiency being made up, have relevancy only while the suit is pending.
(9) Reference is also invited to the provisions of Sections 33, 35, 36, 37 and 38 and Section 48 of the Indian Stamp Act, 1899 (Act 2 of 1899). In contrasting it with the aforesaid provisions of the Stamp Act. it is pointed out that in case an instrument, not duly stamped, is tendered in evidence, not only the document is made inadmissible in evidence, but the provisions is made for the purpose of impounding and also sending it to the Collector for recover of the duty and the penalty. It is submitted that in the absence of a power being conferred, as is conferred by Section 48 of the Stamp Act, the power to call upon the party to pay deficient court-fees cannot be exercised after the Court has disposed of the case.
(10) Normally, what is included in a decree is the result of trial and adjudication and what has not been adjudicated upon is not to be given effect to in the decree. The decision as to payment of court-fees, apart from the liability of the party to pay, is also a matter of adjudication, and that also after hearing the defendant, as it may affect the costs of the suit, and which the defendant or the plaintiff may be burdened with, and if long after the adjudication has taken place by way of a judgment of the Court, I am unable to see how effect can be given to it by inserting anything in respect to it in the decree which represents only the result of an antecedent adjudication. Again, 'the Court-Fees Act docs not provide separately any machinery for recovery of additional court-fees and the only penalties for failure to supply deficiency in court-fees are those which are contained in Order Vii rule 11 sub-clauses (b) and (c). Nor. is there any rule of law which would vitiate or annul a judgment or decree obtained by a party, who, subsequent to such judgment, having been ordered to pay additional court-fee under S. 28 of the Act. fails to do so. The only interpretation, thereforee, that I can put upon that section is that the powers thereby conferred are to , exercised only before the final decision of the case, to which the .question of payment of court-fees relates, and the provision as to' retrospective effect of the validity of such documents and every proceedings relative thereto, relates only to those documents which, being defectively stamped, have been wrongly received and used in the course of the trial of the case, which has not yet been finally adjudicated upon. There is nothing in Section 28 which initially invalidates either the judgment or the proceedings based on a document which was not properly stamped. It merely states that on such docu- ment being stamped, as directed by the Court, the same and every proceeding relative thereto shall be valid. This does not mean that whatever proceedings were held relative to that deficiently stamped plaint are automatically deemed to be invalid. It is only after the mistake or inadvertence of the court or of the office is noticed that the ' Court or the office or the judge has to pass an order that such document be stamped properly, as he may direct. But this mistake or inadvertence has to be noticed while the suit is still pending.
(11) The Court-Fees Act is an Act which starts without a preamble. It is undoubtedly a fiscal measure and requires an interpretation which neither harms the Revenue, nor goes out of its way to collect court- fees after the suit has been decided. The scheme of the Court-Fees Act is that every document filed in Court must be properly stamped. But, if the Court has used it by mistake or inadvertence, though it was not properly stamped, it is for the Court to rectify its mistake either su moto, or on objection by the parties before the trial concludes. The framing of the decree, after the judgment in a case like the present one, is merely a ministerial act and the decree must follow containing the final determination, as adjudicated upon in the judgment.' There is no provision for making recoveries of the court- fees in plaints which are deficiently stamped such as the provisions relating to deficiently stamped documents which are found in the Indian Stamp Act. 'The only consequence of a deficiently stamped plaint or a document is that so long as the trial is pending, the Court may refuse to look at it, or reject it, or make the plaintiff restrict his case to the extent the document is properly stamped, but, once, the trial has concluded, the document looses all its importance and results in a judgment followed by a decree, which alone has to be looked into.' Of course, if a plaint or a document was deficiently stamped, the appellate court or the revision court can certainly go into the question in appropriate proceedings, but 'the Court which has passed the judgment cannot, after passing the same, look into such matters and exercise the powers conferred by S. 28. Another simple reason why the power under S. 28 cannot be exercised for calling upon a deficiency being made up as already pointed out above, is that a judgment delivered by the Court is not declared as invalid by S. 28 and on the failure of the party concerned to make up the deficiency, the judgment can neither be varied nor amended for that reason.'
(12) The learned counsel, appearing on behalf of the Chief Controlling Revenue Authority, has submitted that even in a case where peremptory order for payment of deficit court-fees within a fixed period has been passed, the Court can extend time under S. 149 C.P.C. and. thereforee, the Court is still seized of the case, and even after the pronouncement of judgment extends time and, thereforee, the Court has jurisdiction to ask for additional court-fees even after the judgment. I am afraid, this argument is far-fetched. This power is exercised in view of Section 149, as it specially confers this power, but that certainly requires that the order calling upon a party to pay additional court-fees has to be passed before the suit concludes. Thereafter, it is merely a question of extension of time and not exercising any power for the first time after judgment and is supported by the view of the Supreme Court in case reported as Mahant Ram Das v. Ganga Das. : 3SCR763 . This section does not contemplate that where a suit has been decreed or dismissed unconditionally, the Court still has the power to call for additional court-fees.
(13) The view that I have taken is supported by practically all the reported cases so far, viz., Dhakeshwar Prasad Narain Singh and others v. Manna Lal and others, Air 1919 Pat 225 which was followed in Kedar Nath Goenka v. Chandra Mauleshwar Prasad Singh : AIR1932Pat228 ; Rajeshwar Rai and others v. Shankar Rai and others, : AIR1962Pat398 , The same view was also followed in the case reported as The Shanghai Life Insurance Co., Ltd., v. Mrs. Helen Constance Brown, 32 IC 534. The High Court of Lahore also accepted the same view in the cases reported as Abdullah v. Secretary of State for India, 1925 Lah 131; and Mt. Durga Devi v. Mt. Parbati, Air 1933 Lah 208. The Madras High Court also took the same view in Re: Secy. of State, : AIR1933Mad321 . The High Court of Allahabad also followed the Patna view in the cases reported as Mohammad Ismail v. Liyacat Husain, : AIR1932All316 . The Patna High Court has again in. the latest judgment reported as Dulhin Mahesari Devi v. Dulhin Jahari Devi and others : AIR1976Pat8 followed the judgments reported as Radhika Raman Prasad Singh and others v. Mt. janki Kuer and others, Air 1919 Pat 9=51 IC 756: and Smt. Parvati Devi and another v. Dhodhi Lal Mahto and another, : AIR1957Pat533 . Though, the latter judgment of the Patna High Court relates to the power of the appellate court to call for additional court-fees after dismissal of the appeal, vet the same reasoning applies to the powers of the trial Court.
(14) It will be noticed that the only discordant note was struck by Oldfield, J., in a solitary authority reported as Mahadei v. Ram Kishen Da- and Others, 7 All 528, where his brother Judge Mahmuod, J.. did not agree with him. Since the case reported as 7 All 528, no judgment has yet come following the view taken by Oldfield, J even of his own Court. In fact, the views have been to the contrary, following the view of Mahmood, J
(15) The principle of stare decisis is fully applicable to the matters like the one before me for the simple reason that for practically more than nine decades, the consistent view of all the High Courts has been that power under Section 28 cannot be exercised after the pronouncement of the judgment, and no compelling reason, argument or authority has been brought to my notice to disturb that uniform line of decisions.
(16) Another thing to be noticed is that Section 28 is discretionary. In a case like the present one, it will not be proper to at all exercise the power under Section 28. When the compromise decree was passed, the record shows that the plaintiff gave up his claim from Rs. 70,000.00 to the amount for which the decree was passed. For that amount, the plaint is clearly properly stamped. There can be no doubt that parties have a right to give up their claim. Once the claim is given up, the plaint is valid to the extent the claim survives. For the original plaint, there is no provision in the Court-Fees Act to make the plaintiff pay the court-fees. Nor, is there any machinery provided for its collection. Had it been a contested case, the mistake would have been found out and there would have been no loss to the Revenue. Besides, the question could have been determined even on appeal, but, in a case like the present one, where judgment has been passed with consent, it is not appealable, and since the claim had itself been given up, I do not find any reason to direct the plaintiff to make up the deficiency in the original plaint.
(17) J am, thereforee, of the considered view that the same 'Court has no power, after the judgment has been delivered, to call upon a party or a litigant to pay any deficiency in court-fees even when initially a document or a plaint was entertained through mistake or inadvertence'. The reference is answered accordingly.