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Mariyam Vs. Gulam Mohammed - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Special Appeal No. 58(Def) of 1984
Judge
Reported inAIR1985Raj143; 1984()WLN357
ActsRajasthan High Court Ordinance, 1949 - Sections 18(1); Code of Civil Procedure (CPC) - Sections 96; Rajasthan Court-fees and Suits Valuation Act, 1961 - Sections 47 - Schedule - Articles 1 and 3(2)
AppellantMariyam
RespondentGulam Mohammed
Appellant Advocate H.M. Parekh, Adv.
Respondent Advocate R.C. Maheshwari, Addl. Govt. Adv.
Cases ReferredRuda Ram v. Shri Meharsing
Excerpt:
.....'memorandum of appeal' includes memoradum of appeal filed against judgment of single judge passed in appellate jurisdiction--held, ad-valorem court fee is payable on memoradum of appeal.;the 'memorandum of appeal', as used in article 1, schedule i of the act also includes memorandum of appeal filed against the judgment of a learned single judge passed in exercise of appellate jurisdiction.;ad valorem court-fee is payable oh the memorandum of appeal filed against the judgment and decree dated november 17, 1983 of the learned single judge, which he has passed in exercise of his appellate jurisdiction under section 96 of the civil procedure code. the court-fee payable on such a memorandum of appeal is in accordance with article 1, schedule i of the act read with section 47 of..........high court ordinance, 1949 (for short 'the ordinance') against the judgment of a learned single judge passed in an appeal under section 96, civil p. c.2. we may, succinctly, recount the facts,which are necessary for deciding the question.the plaintiffs-respondent's suit for specific performance of an agreement was dismissed by the district judge, pali, vide judgment and decree dt. june 4, 1983. the plaintiffs filed appeal in this court under section 96 of the civil p. c. learned single judge, by his judgment dated nov. 17, 1983, accepted the appeal, set aside judgment and decree dt. june 4, 1963 of the learned district judge, pali and decreed the plaintiffs' suit for specific performance of the agreement ex. 2 and dt. april 25, 1967. a direction was made that the plaintiff shall.....
Judgment:

S.K. Mal Lodha, J.

1. This order will decide an important question relating to payment of court-fee-on an appeal under Section 18(1) of the Rajasthan High Court Ordinance, 1949 (for short 'the Ordinance') against the judgment of a learned single Judge passed in an appeal under Section 96, Civil P. C.

2. We may, succinctly, recount the facts,which are necessary for deciding the question.

The plaintiffs-respondent's suit for specific performance of an agreement was dismissed by the District Judge, Pali, vide judgment and decree dt. June 4, 1983. The plaintiffs filed appeal in this court under Section 96 of the Civil P. C. Learned single Judge, by his judgment dated Nov. 17, 1983, accepted the appeal, set aside judgment and decree dt. June 4, 1963 of the learned District Judge, Pali and decreed the plaintiffs' suit for specific performance of the agreement Ex. 2 and dt. April 25, 1967. A direction was made that the plaintiff shall deposit the purchase money amounting to Rs. 12,318.50 along with interest or rent within two months from the date of the judgment and on their so depositing the amount in the trial court, the defendants shall execute a sale-deed in respect of the shop in dispute in favour of the plaintiffs and get it registered. Certain other directions were also made. Aggrieved by the judgment and decree passed in appeal under Section 96, Civil P. C. of the learned single Judge, the defendants have filed this appeal under Section 18(1) of the Ordinance. The valuation of the appeal was the same which was of the suit, namely, Rs. 12,316.50. A fixed court-fee of Rs. 10/- was paid on the memorandum of appeal. The appeal was filed on Jan. 28, 1984. Office reported on March 28, 1984 that on further checking it was revealed that learned counsel had not affixed the court-fee ad volarem against the decree and had paid the court-fee in accordance with Article 3(iii)(2)(a) of Schedule 11 of the Rajasthan Court-fees and Suits Valuation Act, 1961 (hereinafter referred to as 'the Act'), but the court-fee as held in Sohanlal v. Tulcha ILR (1971) 21 Raj 566, payable on such memorandum of appeal is ad valoram in accordance with Article 1, Schedule 1 of the Act. As the deficit court-fee was not paid, the appeal has been listed for orders. Mr. M.C. Maheshwari, Additional Government Advocate has put in appearance, as the matter relates to the revenue of the State.

3. We heard Mr. H.M. Parekh and Mr. R.C. Maheshwari, Additional Govt. Advocate and Mr. R. Mehta for respondent (caveator) on the question of court-fee.

4. Mr. H.M. Parekh, learned counsel for the defendants-appellant submitted that the court-fee of Rs. 10/- paid on the memorandum of appeal is proper and adequate as it is in accordance with Article 3(iii)(2)(a) of Schedule II ofthe Act. He referred to an order dt. May 8, 1981 passed by a Division Bench in Sohanlal v. Ishwarlal (D. C. Civil Special Appeal No. 3/80), wherein an identical question arose and the Division Bench, after considering Section 47 of the Act, Article 3(iii)(2) of Schedule II of the Act. Section 18 of the Ordinance, S.J. Bhogilal v. Temple Committee AIR 1925 PC 155 C. Alexander v. State of Rajasthan 1967 Raj LW 127 and the order dt. Aug. 30. 1979 passed in Devi Singh v. Shushila Devi Civil Special Appeal No. 8/79, decided on Jan 18, 1980 held that the court-fee of Rs. 10/-, paid on the memorandum of appeal filed under Section 96, C.P.C. is not deficient whereby overruling the preliminary objections raised by the learned counsel for the respondents and also on behalf of the State. It was also pressed for our consideration that if there is any vagueness or ambiguity in the provisions of the Act, with which we are concerned because of the bad drafting, an interpretation, which lessens and does not add to the pecuniary burden of the litigant should be put, i.e. it should be interpreted in favour of the litigant who is required to pay court-fee. In this connection, reliance was placed on State of Maharashtra v. Mishrilal AIR 1964 SC 457 and C. C. Ray v. Fertilizer Corporation AIR 1969 Delhi 130. Learned counsel for the appellant also urgued that having regard to the use of the word 'judgment' in Article 3(iii)(2) and the word 'order' in Article 3(iii)(2)(a), it is clear that the word 'order' as used in Article 3(iii)(2)(a) refers to all orders passed by a single Judge of the High Court in exercise of the appellate jurisdiction inclusive of the 'decree' as such. Reference was made to Vastu Lal v. Official Liquidator ILR (1961) II Raj 16 and Natha Singh v. Financial Commr., Punjab AIR 1976 SC 1503. The sheet-anchor of the argument of the learned counsel for the appellant is that Article 3(iii)(2)(a) of Schedule II of the Act embraces the judgment and decrees and orders of a learned single Judge of the High Court passed in exercise of appellate jurisdiction whereas Article 3(iii)(2)(b) of Schedule II of the Act is applicable to appeals against judgment and decrees and orders which are not passed in exercise of appellate jurisdiction as the words used are 'in any other case' and court-fee of Rs. 100/- is payable.

5. On the other hand, Mr. N.C. Mahashwari, Additional Govt. Advocate took pains to persuade us that the court-fee payable on a memorandum of appeal under Section 18(1) ofthe Ordinance, filed against the judgment passed by the learned single Judge in exercise of his appellate jurisdiction under Section 96, Civil P. C. should be accompanied by the payment of ad valorem court-fee as provided in Article 1 of Schedule I of the Act To support his contention, he drew our attention to the expression 'not otherwise provided for' occurring in the main part of Article 3 of Schedule II of the Act and Section 47 of the Act. He invited our attention to Sobanlal's case (ILR (1971) 21 Raj 566) and also to the order dated March 21, 1984, passed in Rudaram v. Meharsingh D. B. Civil Special Appeal No. 57 of 1984. In both the aforesaid cases, identical questions with which we are concerned relating to payment of ad valorem court-fee on the memorandum of appeal under Section 18(1) of the Ordinance arose and it was held that in an appeal against the judgment and decree passed by a learned single Judge in exercise of his appellate jurisdiction under Section 96 C.P.C., 'the court-fee payable is ad-valorem in accordance with Article 1 of Schedule I of the Act. As regards the order passed in Sohanlal's case (supra), Mr. R.C. Maheshwari argued that Sohanlal's case was not brought to their Lordships' notice, and further that had it been brought to their notice, they would have either in case of disagreement referred it to a larger Bench or would have followed the reasons given therein, that one coordinate. Bench of the same High Court cannot take a view contrary to the decision given earlier by another Bench of that Court and that one is bound by such decision. V.R.G. & G.O.M.C Co's case(AIR 1972 SC 51) (supra) was noticed by a learned single Judge of this court in Deula Ram v. State of Rajasthan (1984 Cri LJ NOC 129). There were two conflicting decisions in Taju Khan v. State of Rajasthan 1983 Rajasthan LR 100 : (1983 Cri LJ 1518) and Manohari v. State of Rajasthan 1983 Rajasthan LR 155 : (1983 Cri LJ 1231). The learned single Judge after noticing V.R.G. & G.O.M.C. Co.'s case AIR 1972 SC 51 and Jaiwant Rao v. State of Rajasthan AIR 1961 Raj 250 (FB), for deciding the case before him, followed the view taken in Taju Khan's case.

6. Now, we proceed to perform the difficult task which is before us. Before we do so, we consider it proper to read the relevant provisions of the Civil P. C. the Ordinance and the Act.

7. Section 2, C.P.C. defines 'decree' as under :--

'decree means the formal expression of an adjudication Which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144.'

8. Section 2(9), C.P.C., defines 'judgment' to mean the statement given by the Judge of the grounds of decree or order.

9. 'Order' has been defined in Section 2, C.P.C. to mean formal expression of any Decision of a Civil Court which is not a decree.

10. 'Decrees' have been made appealable under Sections 96 and 100, Civil P. C.

11. There is good deal of distinction between 'decree' and 'order having the force of decree' and 'order which is simply enforceable as a decree'. Reference in this connection may be made to Vastulal's case (ILR (1961) 11 Raj 16).

12. Sec. 18 of the Ordinance deals with appeal to the High Court from Judges of the Court It is provided in Section 18(1) that an appeal shall lie to the High Court from the judgment of the one Judge of the High Court. It was held in Kedar Nath v. Sitaram, ILR (1960) 10 Raj 1259 that the word 'judgment' does not bear the meaning which has been assigned to it under Section 2(9), C.P.C. but it has been used in the sense of a sentence of the law pronounced by the court and not in the sense of reasons which have led to that pronouncement.

13. Section 3 of the Act deals with various definitions. Section 3(ii) defines 'court' to mean, amongst others, any civil court. Section 3(iv) provides guidance for interpretation. It is as follows: --

'expressions used and not defined in this Act or in the Rajasthan General Clauses Act 1955 (Rajasthan Act 8 of 1955) but defined in the Code of Civil Procedure, 1908 (Central Act 5 of 1908), shall have the meanings respectively assigned to them in the said Code.'

The terms 'decree', 'judgment' and 'order' have not been defined in the Rajasthan General Clauses Act, 1955. It, therefore, follows that the words 'decree', 'judgment' and 'order' will have the same meaning as assigned to them in Civil P. C. unless the subject or context otherwise requires.

14. A careful reading of the main part ofArticle 3 of Schedule II of the Act shows that this Article contemplates an appeal from an order as defined in Section 2, C.P.C. and not decree. It is confined to an order which is not a decree inclusive of the order passed under Section 47 and Section 144, C.P.C. The definition of the 'decree' lays down that it shall be deemed to include rejection of a plaint and the determination of any question within Section 144. Article 3(iii) of Schedule II of the Act deals with the memorandum of appeal from an 'order' to the High Court. It is confined to an order which is passed by a subordinate court or other authority. Article 3(iii)(2) of Schedule II of the Act provides for an appeal from 'judgment' of a single Judge of the High Court of Rajasthan, which he may pass under any law for the time being in force. The judgment of a single Judge may be in exercise of appellate jurisdiction or original jurisdiction (extraordinary or under special enactments). Article 3(iii)(2) contains four clauses. Article 3(iii)(2)(a) is confined to an order passed in exercise of appellate jurisdiction and appeal from judgment/order in any other case is governed by Article 3(iii)(2)(b) of Schedule II of the Act.

15. The pertinent question is whether the word 'order' occurring in Article 3(iii)(2)(a) of Schedule II of the Act also includes 'decree'. It is well settled that in deciding the true scope and effect of the relevant words, the context in which the words occur, the object of the statute in which the provision is included and the policy underlying the statute become relevant and material. We have to bear in mind three well recognized principles of interpretation of local statutes, viz. (1) such statutes are to be construed strictly; (2) the subject should not be made liable to pay enhanced court-fee unless such step is warranted by the dear provisions of the statute; and (3) where there is doubt in the mind, an interpretation favourable to the subject should be preferred. This has been held in the context in which the word 'order' has been used. We may make it clear that this interpretation is not contrary to the accepted meaning of the word judgment used in Section 18(1) of the Ordinance-16. The words 'from an order passed in exercise of appellate jurisdiction', in our considered opinion, do not include decree passed in exercise of appellate jurisdiction.

17. Section 47 of the Act deals with 'appeals' and provides that on a memoramdum of appeal, the fee payable shall be the same that would be payable in the court of firstappeal on the subject-matter of the appeal So also Article 1 of Schedule I provides for payment of court-fee, inter alia, on the memorandum of appeal and according to it, the court-fee payable on such appeal is ad valorem. The 'memorandum of appeal', as used in Article 1, Schedule I of the Act also includes memorandum of appeal filed against the judgment of a learned single Judge passed in exercise of appellate; jurisdiction. Here Section 20 of the Act, which is charging section, may be noticed. According to it, computation of court-fee has to be made according to the provisions contained in Chapter VI, Chapter VIII and the Schedules I and II. From the reading of Section 47 and Article 8 of Schedule I of the Act, it is clear that on the memorandum of appeal against the judgment and decree of a learned single Judge, passed in exercise of the appellate jurisdiction, an ad valorem court-fee is payable.

18. In Sohanlal's case (ILR (1971) 21 Raj 566), Sections 4, 26, 47, Article 1 of Schedule I and Article 3 of Schedule II of the Act and Section 18 of Ordinance came up for consideration and the question was regarding payment of court-fee on memorandum of appeal filed against the judgment of a single Judge passed in exercise of appellate jurisdiction. After noticing the aforesaid provisions of the Act and the Ordinance, it was held in that case that a special appeal against the judgment of a learned single Judge of a High Court passed on appeal against the decree does not fall under the description 'memorandum of appeal from an order inclusive of an order determining any question under Section 47 or Section 144 of the Civil P. C. 1908 (Central Act No. V of 1908) and not otherwise provided for' and that court-fee payable on such memorandum of appeal is as provides in Article 1 of Schedule I of the Act and therefore, Article 3 of Schedule II of the Act has no application to it. It was observed as under : --

'The word 'judgment' under Section 18 is a comprehensive one. It may be an appellate judgment of a learned Single Judge in respect of a decree or it may be a judgment in respect to order having the force of a decree like the order under Section 47 or Section 144 of the Code of Civil Procedure. If the appellate judgment of the learned Single Judge is in respect of a decree then court fee could be payable on the memorandum of special appeal under Article 1, Schedule I. If on the other hand the appellate judgment is in respect of the order which has the force of a decree like the order under Section 47 of Section 144, Code of Civil Procedure then the memorandum of appeal would be liable toa fixed court fee as prescribed under Article 3 of the Schedule II.'

19. This is the earliest case of the Division Bench on the point. In Sohanlal's case (ILR (1971) 21 Raj 566) (supra), Section 47, Article 3(iii)(2) of Schedule 11 of the Act and Section 18 of the Ordinance were, of course, examined, but as attention was not drawn to Sohanlal's case (ILR (1971) 21 Raj 566). It was held following the decision given in Devisingh's case (supra) that the court-fee payable on the appeal is in accordance with Article 3(iii)(2)(a) of Schedule II of the Act. There is no doubt that a view different from the one taken in Sohanlal's case, which should not have been taken in view of V. R. G. & G. O. M. C, Co.'s case (AIR 1972 SC 51) for the later Division Bench which passed order in Sohanlal's case (supra) was bound by the decision taken by the earlier Division Bench. Here, we are expected to quote para 9 from V. R. G. & G: O. M. C. Co.'s case :

'It is strange that a coordinate bench of the High Court should have tried to siton judgment over a decision of another Bench of that court. It is regrettable that the learned Judge who decided the latter case overlooked the fact that they were bound by earlier decision. If they wanted that the earlier decision should be reconsidered, they should have referredthe question in issue to a larger Bench and not to ignore the earlier decision.'

As Sohanlal's case was not brought to the notice of the learned Judge constituting the Division Bench was passed the order in Sohanlal's case (supra), the question of referring the question in issue to a larger Bench did not arise.

20. A similar question also arose in Ruda Ram v. Shri Meharsing (D. B. Civil Special Appeal No. 57 784). It was contended on behalf of the appellant in that case that the court-fee was payable on the memo of appeal under Article 3(iii)(2)(a) of Schedule II of the Act the learned Judge of the Division Bench, while passing the order dated March 21, 1984, observed as follows : --

'The present appeal has been filed against a judgment and decree passed by the learned Single Judge arising out of a civil suit and as such court-fee was payable ad valorem according to item J of Schedule I of the Court-fees Act. Learned Counsel submits that the appellant is willing to pay court-fees on the ad valorem basis, but prays for 15 days' time toenable the appellant to make the necessary payment of court-fees.'

21. In Devisingh's case (supra), an office objection was raised that an appeal under Section 18 of the Ordinance against the judgment/order of the learned Single Judge passed in exercise of the appellate jurisdiction under Section 28 of the Hindu Marriage Act, should be accompanied by stamps of Rs. 100/- and as the name of appeal was accompanied by the stamp of Rs. 10/- only, there was deficiency of Rs. 90/-. This is amply borne out from the following extract of the order dated Aug. 30,1975, passed in that case : --

'The contention raised by the learned counsel is well founded inasmuch as the order under appeal is one passed in exercise of the appellate jurisdiction under Section 28 of the Hindu Marriage Act.'

22. In view of this, the payment of Rs. 10/-as court-fees was held to be proper. This is distinguishable. We are in respectful agreement with the view taken in Sohanlal's case (ILR (1971)21 Raj 566) and Ruda Ram's case (supra). For the reasons aforesaid, we are of opinion that the question does not require reconsideration by a Larger Bench as we consider ourselves to be bound by Sohanlal's case (ILR (1971) 21 Raj 566), which is the earliest case and which was not noticed in Sohanlal's case (supra). We held that ad valorem court-fee is payable on the memorandum of appeal filed against the judgment and decree dated November 17, 1983 of the learned single Judge, which he passed in exercise of his appellate jurisdiction under Section 96 of the Civil P. C The court-fee payable on such a memorandum of appeal is in accordance with Art 1, Schedule I of the Act read with Section 47 of the Act.

23. In view of the aforesaid conclusion, we do not consider it necessary to examine the other contentions raised by the learned counsel for parties and the learned Additions'Government Advocate.

24. The office objection that the court-fee of Rs. 10/- is deficient is upheld. Ad valorem court-fee is payable on Rs. 12,138.50.

25. Mr. H.N. Parekh, learned counsel for the appellant prays for two weeks' time to enable the appellants to make up the deficiency in court-fee. Time prayed for is allowed, subject to all just exceptions.


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