1. In this review application the question that has arisen for our consideration is whether the court-fee paid thereon by the petitioners is sufficient. The judgment from which the review application has been preferred was pronounced by a Bench of this Court on the 9th October 1952. The review application was filed on 3rd January 1953. There is, therefore, no dispute that the review application was filed within 90 days of the Judgment. The appeal was valued by the petitioners for purposes of court-fee at Rs. 13,569/87- and the present review application, has been valued at the same figure. The Stamp Reporter has reported that the court-fee of Rs. 108/- paid by the petitioners is insufficient and that they should have paid one-half of the sum of Rs. 595/- on the review application inasmuch as the court-fee payable on the memorandum of appeal, if it should have been filed at the time the review application came to be made, would be a sum of Rs. 595/-. It may be pointed out that after the memorandum, of appeal was filed on 18-9-46 and before the application for review was made, the Rajasthan Court-fees (Adaptation) Ordinance had come into force on January 25, 1950, according to which enhanced rates of fees on plaints and memorandum of appeal are required to be paid.
2. There appears to be a conflict of judicial opinion on, the point before us. Articles 4 and 5 of Schedule 1 of the Court-fees Act (No. VII of 1870) provide as follows:
Article 4.Application for review of judgment if presented on or after the ninetieth day from the date of the decree...The fee leviable on the plaint or memorandum of appealArticle 5Application for review of judgment, if presented before the ninetieth day from the date of the decree... One half of the fee leviable on the plaint or memorandum of appeal.
3. 'The whole question turns upon the interpretation of the expression 'leviable' in the articles referred to above. According to the High Courts of Allahabad, Calcutta and the Chief Court of Oudh, the word 'leviable' refers to the plaint or the memorandum of appeal filed in the suit, or appeal out of which the application for review arises. In other words, if the application is for review in respect of a decree passed in appeal, the court-fee will be the same as that payable on the memorandum in the appeal if the application for review falls under Article 4, and half the amount of such court-fee if the application falls under Article 5. See -- 'Parmeshar v. Eakhtawar', AIR 1933 All 20 (A); -- 'Nandi Lal v. Jogendra Chandra', AIR 1924 Cal 881 (B); -- 'Nageshar Sahai v. Shiam Bahadur', AIR 1924 Oudh 108 (C) and-- 'In the matter of Sheikh Maqbul Ahmed', 6 All LJ 215 (D).
On the other hand the Bombay and the Madras High Courts have adopted a different construction and have held that the word 'leviable' refers to the point of time when the review application falls to be actually presented. They have held, therefore, that the court-fee payable on a review application should be assessed on the footing as if the plaint or memorandum of appeal were presented at the time the review application was made and for the relief asked for in it. See --'In re Manohar G. Tambekar', 4 Bom 26 (E) and-- 'Punya Nahako v. Emperor', AIR 1927 Mad 360 (P). We have carefully considered the question and we respectfully agree with the view of the Calcutta and the Allahabad High Courts in favour of which there is a preponderance of judicial opinion.
The word 'leviable' appears to have been used in Articles 4 and 5 of the Court-fees Act to cover, for instance, the class of cases where a plaint or a memorandum of appeal is filed in forma pauperis. Another class of cases which appear to us to be covered by this expression would be those in which a certain amount of court-fee is properly leviable, but the actual fee that has been levied is either less than, or in excess of.that which was leviable according to law. The argument, therefore, that if the legislature had intended that the court-fee to be charged on review applications was to be the same as or one-half of the fee paid oh the plaint or the memorandum of appeal, as the case may be, then the expression 'levied' should have been used instead of 'leviable', is, though plausible on the face of it, really fallacious. We may also point out that the acceptance on the other view would mean that we import some more words into Articles 4 and 5 such as 'if such plaint or memorandum of appeal was presented at the time when the application for review is made' asking for the same relief as that asked for in the application for review. We do not think that it is within our province to do so.
We may add that we are not unmindful of the considerations which have prevailed in Madras and Bombay, and led the High Courts there to take the other view. The principal consideration seems to have been that great hardship would be caused to litigants if the court-fee payable on a review application were to be fixed with reference to the fee which was properly payable when the plaint or the memorandum of appeal came to be presented. It is perfectly conceivable that in some cases the amount of court-fee which has to be paid on the other view may be entirely disproportionate to the relief actually claimed. Our answer to that aspect of the matter is twofold. In the first place, the policy of the legislature seems to be to discourage frivolous applications for review by fixing a definite standard for the payment of court-fee on such applications with reference to the plaint or the memorandum of appeal as the case may be, and absolutely independently of the scope or extent of the application or review. Secondly, Section 15 of the Court-fees Act provides an adequate relief in more or less all genuine cases of applications for review. That section, provides that where an application for a review of judgment is admitted, and where, on the re-hearing, the Court reverses or modifies its former decision on the ground of mistake in law or fact, the applicant shall be entitled to a certificate from the Court authorizing him to receive back practically the whole of the court-fee paid by him beyond a small sum.
4. We are therefore of opinion that the words'leviable on a plaint or memorandum of appeal'mean properly leviable on the plaint or memorandum of appeal in which the judgment soughtto be reviewed is passed and not on any imaginary plaint or memorandum of appeal whichmight have been presented at the time the reviewapplication was filed asking for the same reliefas in the application for review. We accordinglyhold that the court-fee paid by the applicant, inthe present case, being half of the fees properlyleviable on the memorandum of appeal, is sufficient.