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Ali Mohammed Vs. Sabdar Ali and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 323 of 1958
Judge
Reported inAIR1960Raj85
ActsCourt Fees Act, 1870 - Sections 1
AppellantAli Mohammed
RespondentSabdar Ali and anr.
Appellant Advocate Hastimal, Adv.
Respondent Advocate M.C. Bhandari, Adv.; Raj Narain, Asst. Govt. Adv.
Cases ReferredIn Mt. Mohri Kunwar v. B. Keshri Chandra
Excerpt:
- .....mohammed filed an appeal against the said decree. the respondents sabdar ali and mohammed hussain filed cross-objections. the value of the property was rs. 5,000/-. on the date of the institution of the suit, i.e. 29-4-1944, the mewar court-fees act was in force. the rajasthan court-fees act came into force on 25-1-1950. 2. the plaintiffs filed cross-objection on the court-fee of rs. 104/11/-, calculated in a valuation of rs. 2,500/- according to the mewar court-fees act. the office reported that the court-fees should have been paid according to the rajasthan act which was in force on the date of the filing of the cross-objection and that this amounted to rs. 150/-.3. learned counsel for the plaintiffs contended that the right of appeal was a vested right and accrued on the date of the.....
Judgment:

K.L. Bapna, J.

1. In this case a decree for possession of half share in the suit property was given by the learned District Judge, Udaipur in favour of the plaintiff's respondents. The appellant Ali Mohammed filed an appeal against the said decree. The respondents Sabdar Ali and Mohammed Hussain filed cross-objections. The value of the property was Rs. 5,000/-. On the date of the institution of the suit, i.e. 29-4-1944, the Mewar Court-fees Act was in force. The Rajasthan Court-fees Act came into force on 25-1-1950.

2. The plaintiffs filed cross-objection on the court-fee of Rs. 104/11/-, calculated in a valuation of Rs. 2,500/- according to the Mewar Court-fees Act. The office reported that the court-fees should have been paid according to the Rajasthan Act which was in force on the date of the filing of the cross-objection and that this amounted to Rs. 150/-.

3. Learned counsel for the plaintiffs contended that the right of appeal was a vested right and accrued on the date of the institution of the suit. The increase in the court-fees restricted such right of appeal and no restriction can be valid unless it is expressly made retrospective in its operation. Learned counsel relied on, Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh, AIR 1953 SC 221, Firm Hazi Sheikh Faizulla v. State of Vindhya Pradesh, AIR 1954 Vindh-Pra 5 and Chhakaurisingh v. Sri Krishna Pande, AIR 1941 All 134.

4. The Supreme Court case, AIR 1953 SC 221 was not in respect of the matter now in issue. In that case, the assessee had a right of appeal according to the old law. The new law granted the same right of appeal but a proviso was added that an appeal shall not be admitted unless the assessee had made payment of the amount of tax which had been taxed upon him. It was held that the condition as to the payment of tax before the appeal could be entertained was a substantial restriction on the right of appeal.

5. Learned counsel urges that the increase in the court-fees under the new Act has a similar right of restriction on the cross-objection. All that need be said is that the case is an authority for what it decides and not for what logically follows from it. In the case of AIR 1954 Vindh-Pra. 5 the learned Judicial Commissioner held that the court-fees were payable in accordance with the Act on the date of the institution of the suit by relying on the Supreme Court decision referred to above (AIR 1953 SC 221).

6. In the case of Chhakaurisingh, AIR 1941 All 134, the observations are . 'The question is not free from difficulty, but on the whole I think that the contention of learned counsel must prevail.' There is no reasoning behind the decision in the case.

7. With great respect, I am unable to accept the view of law as laid down in Firm Hazi Sheikh Faizulla's case, AIR 1954 Vindh-Pra 5 or Chhakaurisingh's case, AIR 1941 All 134.

8. The Rajasthan Court-fees Act adapted the Indian Court-fees Act, 1870 with certain modifications. The relevant portion of Section 6 of the Indian Court-fees Act which has been adapted is as follows: 'No document of any of the kinds specified in the schedule annexed, as chargeable with fees, shall be filed, exhibited or recorded in, or shall be received or furnished by, any Court of Justice. . . .'

The schedule provides what court-fees are to be paid on an appeal, vide Article 1 of Schedule I.The section, therefore, expressly provides that no appeal shall be filed except on the court-fees specified in the Act. It therefore, expressly repealed the former Mewar law in the present case. This law only applied to appeals which had been filed after the enactment. As its application is not required to be made to an appeal which may have been filed earlier, there is no question of this Act being applied retrospectively.

9. The right of appeal is granted by the Code of Civil Procedure. But there were conditions attached to that right of appeal, one of which was that a certain amount of court-fees had to be paid and when the amount of court-fees was revised, that particular condition expressly came to be amended Even if the argument be accepted for a moment that vested rights can only be taken away by express legislation, I am inclined to think that there was the express legislation which modified the previous right of appeal.

In my opinion, the court-fee leviable for any document, is to be calculated according to the law that is in force at the time when the document is filed, exhibited or recorded in or is received or furnished. I am fortified in this opinion by several decisions, one of which was given as far back as 1870, Mussamut Bhugobutty Kooer v. Mussamut Kustooree Kooer, 15 Suth WR 272(2). Chief Justice Norman held in that case that the duty upon an appeal filed after the Court-fees Act came into operation can only be levied according to the provisions of that Act, even though the original suit was valued on the principles laid down in the earlier Act.

10. The other case is Anandram Pramhans v. Ramgulam Sahu, AIR 1923 Pat 150. In this case, a memo of appeal was presented to a wrong officer before the new Court-fees Act came into force. It was filed and received by the proper officer after the new Act came into force. It was held that the memo of appeal must bear court-fees according to the new Act.

11. In Mt. Mohri Kunwar v. B. Keshri Chandra, AIR 1941 All 298, it was observed that 'No 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 he comes to file an appeal or to make an application.

12. In my opinion, the court-fee has to be paid by the plaintiffs in the present case according to the Court-fees Act in force on the date when the cross-objections were filed. It is not disputed that the court-fees so calculated would be Rs. 150/-. The appellants are given one month's time within which they should pay deficit court-fees of Rs. 45/5/-.


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