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Kapoor Chand and anr. Vs. the State and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberFirst Appeal No. 1 of 1960
Judge
Reported inAIR1960Raj171
ActsCourt-fees Act, 1870 - Schedule - Articles 1 and 17; Rajasthan Public Demands Recovery Act - Sections 8, 9 and 20; Rajasthan Revenue Courts (Designation) Ordinance, 1949 - Sections 2
AppellantKapoor Chand and anr.
RespondentThe State and ors.
Appellant Advocate R.K. Rastogi, Adv.
Respondent Advocate C.B. Bhargava, Govt. Adv.
DispositionAppeal accepted
Cases ReferredSamdu Khan v. State of Rajasthan
Excerpt:
.....for the purposes of this appeal. it has, indeed, been said that the meaning of the words 'summary decision' is not 'sufficiently well known to justify the use of them as a technical term in an act of the legislature without any definition. ' without positively binding ourselves to the proposition, that every decision or order not made in a regular suit or appeal is a summary decision or order, we are clearly o opinion that decisions, as to the removal or retention of attachments, pro-nounced under section 246 of act viii of 1859, are summary decisions or orders. the circumstance that the legislature expressly recognises the right of the party defeated in the proceeding under that section to bring a regular suit to reagitate the point decided, is a strong indication that the..........ii runs as follows:'17. plaint or memorandum of appeal in a suit; (i) to alter or set aside a summary decision or order of any of the civil courts not established by letters patent or of any revenue court;(ii) the proper cour-fee payable is a fixed fee of rs. 10/ only. 5. mr. rastogi contends that the issue of the certificate amounts to a summary decision of a revenue court and falls within the terms of the article. in our opinion, the contention is well-founded and the court-fee payable by the appellants is sufficient for the purposes of this appeal.6. a decision in point is the decision of tha calcutta high court in joy durga dassi v. sourish chandra roy, air 1940 cal 215. that was a case arising under the bengal public demands recovery act under which a certificate had been.....
Judgment:

Sarjoo Prosad, C.J.

1. The question which we have to consider is whether the court-fee payable in this appeal is governed by Article 1 of Schedule I of the Court-fees Act or by Article 17(i) of Schedule II of the Act.

2. The brief facts which are essential for a proper determination of the matter are that the former State of Bharatpur had granted a lease in favour of the plaintiffs for quarrying Ballast from the hills in Roopwas Tehsil for a period of five years commencing from 1-6-1945 on a royalty of Rs. 32,000/- payable in quarterly instalments of Rs. 1,600/- each, subject to certain conditions. The lessees appeared to have failed to pay the stipulated amount and the quarterly instalments fell in arrears. On 24-9-1946, the then Government of Bharatpur terminated the lease and directed the lease to be re-auctioned, and the deficiency, if any, to be realised from the plaintiffs according to the terms of the agreement.

The plaintiffs then offered to pay ail the arrears due with interest at 9 per cent per annum and prayed to the then Government that their lease be continued, which offer was accepted by the Government. It appears that the lessees paid the arrears for some time and thereafter again defaulted with the result that the lease was again cancelled by the Government. In the meantime, the State of Bharatpur merged in the State of Matsya Union. The remaining period of the lease was reauctioned in favour of the highest bidder at the rate of Rs. 3,700/- per annum.

The Government of Rajasthan which ultimately succeeded to the former State of Bharatpur, then issued notice to the plaintiffs demanding payment of Rs. 16,406/6 which, according to them, remained unpaid out of the original sum or Rs. 32,000/- and when the plaintiffs did not satisfy the demand, a certificate under the Rajasthan Public Demands Recovery Act (No. V of 1952) was issued for recovering the same. In the certificate proceedings, it appears that the plaintiffs objected to the issue of the certificate, but could not obtain any relief; and eventually, they instituted the suit, out of which this appeal arises, for a declaration that the certificate issued against them under the Rajasthan Public Demands Recovery Act should be declared void and ineffective.

Before the trial court, the plaintiffs paid ad valorem court-fee on the amount for which the certificate had been issued against them. In this Court, Mr. Rastogi contends that ad valorem court-fee is not payable on the memo of appeal, but that a fixed court-fee under Schedule II Article 17(i) is the requisite court-fee payable which he has affixed on the memorandum of appeal. The office has objected to the amount of court-fee paid and accordingly, the matter has been laid before us.

3. It is obvious from the relief claimed in ike suit that although the relief has been framed as if in a suit for declaration; but. in substance, the suit is for cancellation of the certificate which has been issued against the plaintiffs. Under Section 4 of the Rajasthan Public Demands Recovery Act, on receipt of any requisition for a public demand referred to in Section 3, the Collector, if he is satisfied that the demand is recoverable under the Act and that its recovery is not barred by any law for the time being in force, may sign a certificate to that effect in the prescribed form specifying the amount of the demand and the account on which it is due.

A notice of the certificate is to be served upon the defaulter and then under Section 8 of the Act, the defaulter is authorized within the period of limitation mentioned therein to present to the Collector a petition denying his liability in whole or in part. The Collector then forwards such a petition to the officer or authority charged with the realisation of the public demand for disposal and the section also provides that the officer or authority shall then hear and determine the petition and communicate the result to the Collector. The Collector on that communication, may set aside, modify or vary the certificate, if necessary, in accordance therewith.

Section 9 of the Act further provides that the Collector in whose office the certificate is originally filed, shall determine a petition presented under Section 3 if it proceeds on the ground that the demand is not recoverable under this Act or that its recovery is barred by any law for the time being in force. It is clear from these provisions that the Collector is entitled to determine two matters, viz., whether the demand is recoverable under the Act and whether its recovery is barred by any law tot the time being in force; but so far as the quantum of the amount recoverable is concerned, or where the amount is not payable at all, the matter, on receipt of an objection under Section S of the Act) has to be decided by the officer or authority, who issued the requisition and then the Collector has to vary or modify the certificate in accordance with the decision of that officer.

Now, under Section 20 of the Act, the defaulter has been authorised to institute a suit to have the certificate cancelled or modified or for any further consequential relief to which he may be entitled, and in the suit it may be also determined that nothing was due to him on account of the public demand or that the amount due was less than that stated in the certificate. In other words, the entire certificate proceeding is subject to the result of the suit under Section 20 of the Act and any decision given either by the requisitioning authority Or by the Collector in issuing the certificate does not conclude the matter and is not final between the parties.

The decision is more or less of a summary nature. Under Section 4 of the Act prima facie the Collector has to make up his mind whether the amount mentioned in the requisition is recoverable as a public demand and is not barred by any law of limitation, and when an objection is filed under Section 8 of the Act, he determines these very points in the presence of the objector: while with regard to the quantum of the amount payable, the matter is determined by the requisitioning authority and the Collector adjusts the certificate in accordance with his decision. The order of the requisitioning authority does not stand by itself, but it merges in the order of the Collector, when he varies or modifies the certificate accordingly. But all this is subject to the result of the suit under Section 20 and is open to challenge by the person affected, in the suit instituted tor the purpose. It is, therefore, contended by Mr. Rastogi that the case is governed by Article 17(i) of Schedule II of the Court-fees Act.

4. Article 17 (i) of Schedule II runs as follows:

'17. Plaint or memorandum of appeal in a suit; (i) to alter or set aside a summary decision or order of any of the civil courts not established by Letters Patent or of any Revenue Court;

(ii) the proper cour-fee payable is a fixed fee of Rs. 10/ only.

5. Mr. Rastogi contends that the issue of the certificate amounts to a summary decision of a Revenue court and falls within the terms of the Article. In our opinion, the contention is well-founded and the court-fee payable by the appellants is sufficient for the purposes of this appeal.

6. A decision in point is the decision of tha Calcutta High Court in Joy Durga Dassi v. Sourish Chandra Roy, AIR 1940 Cal 215. That was a case arising under the Bengal Public Demands Recovery Act under which a certificate had been issued. The plaintiffs in that suit prayed for a decree declaring that the certificate was not duly filed and was null and void or in the alternative, for cancelling or mo-diying the said certificate. After examining the relevant provisions of the Bengal Public Demands Recovery Act, it was observed that the legislature contemplated that the decision of the authority issuing the certificate was not final, but was liable to be questioned in the civil court under Section 34 of the Act, which is almost in the same terms as Section 20 of the present enactment.

It was accordingly held that the suit fell under Article 17 (i) of Schedule II of the Court-fees Act. That the Collector acting under the Rajasthan Pub-lic Demands Recovery Act is a revenue court cannot be doubted as under the Rajasthan Revenue Courts (Designation) Ordinance, 1949, in section 2 the presiding officer of a District Revenue Court is de-signated as the Collector.

7. The point which then remains is whether the issue of a certificate amounts to a summary decision. We have already held that the issue of the certificate and the determination of the questions under Sections 8 and 9 of the Rajasthan Act are not final and do not conclude the matter between the parties, since they are subject to the result of the suit which the person affected is entitled to file under Section 20 of the Act. The word 'summary'' has not been de-fined in the Court-fees Act. Sir Richard Couch, C. J. in the decision, Maharaja Dhiraj Mahatab Chand Roy Bahadur v. Bacharam Hazra 13 Suth WR FB 74 explained the meaning and import of the words 'summary decision', thus:

'It is the decision of a Court which hears and determines the matter, but does not finally conclude the parties, a proceeding in which the Court makes an order and determines the matter in issue for the present occasion.'

8. The same view has been taken in another Full Bench decision of the Bombay High Court in Dayachand Nemchand v. Hemchand Dharamchand, ILR 4 Bom. 515 in respect of the meaning of the term 'summary' as used in Article 17 (i) of Schedule II of the Court-fees Act, where Sir Westropp C. J. observed as follows:

'It has, indeed, been said that the meaning of the words 'summary decision' is not 'sufficiently well known to justify the use of them as a technical term in an Act of the Legislature without any definition.' Without positively binding ourselves to the proposition, that every decision or order not made in a regular suit or appeal is a summary decision or order, we are clearly o opinion that decisions, as to the removal or retention of attachments, pro-nounced under Section 246 of Act VIII of 1859, are summary decisions or orders. The circumstance that the Legislature expressly recognises the right of the party defeated in the proceeding under that section to bring a regular suit to reagitate the point decided, is a strong indication that the Legislature regarded the decision under that section as summary; but, in saying this, we do not intend to imply that the legislative recognition of such a right is an indispensable element in fixing whether or not a decision is summary.'

9. Again the Privy Council in Phul Kumari v. Ghanshyam Misra, ILR 35 Cal 202 held in a case under Order 21 Rule 63 C. P. C. that Article 17 (i) oi Schedule II of the Court-fees Act was applicable and the court-fees payable was not ad valorem but a fixed court-fee under the Act. It was held that in the statute, there was no general Or overriding reference to value. The terms of sub-sec. (i) of Article 17 contain no reference to the valuation of the suit or of the appeal and although the valuation may be any amount, the statute, for good reasons or bad, had dealt with certain actions irrespective of value and, therefore, the Article governs these class of cases.

10. A Single Judge decision of this Court in Samdu Khan v. State of Rajasthan, AIR 1957 Raj 277 has taken a contrary view of the matter. There also, the plaintiff had instituted a suit praying for a declaration that the State was not entitled to recover any amount from him and also for a declaration that the certificate issued under the Public Demands Recovery Act was void and of no effect. The suit was filed on a Court-fee of Rs. 10/ only. The learned Judge who decided the matter took the view that it was a suit for declaration and consequential relief and as such, the case was governed by Section 7, Clause (iv) (c) of the Court-fees Act and, therefore, court-fee payable was ad valorem on the relief sought.

On the interpretation of Section 20 of the Rajasthan Public Demands Recovery Act, the learned Judge was of opinion that the prayer for the avoidance of the certificate was one for a substantive relief and not merely for a consequential relief. He thought that in fact it was not necessary for the plaintiff to ask for any declaration at all and that the main prayer in the suit, in other words, was the cancellation of the certificate; and since the Court-fees Act did not specifically provide for such a suit, it was governed by Art, 1 of Schedule I of the Act. Therefore, in either case, ad valorem court-fee on the amount or subject-matter in dispute which was the amount for which the certificate had been issued, was held to be payable by the plaintiff.

The attention of the learned Judge was unfortunately not drawn to Clause (i) of Article 17 of Schedule II of the Court-fees Act which specifically provides for such cases. He also does not appear to have noticed the fact that the issue of the certificate or any decision given under the Rajasthan Public Demands Recovery Act before the issuance of the certificate, was merely in the nature of a summary decision of a revenue court and as such, it clearly fell within the meaning of that clause of Article 17. We are, therefore, unable to accept this decision as laying down the correct law on the subject.

11. We accordingly hold that the court-feepaid in this case is sufficient and the memorandumof appeal should be accepted.


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