1. The Government Pleader draws our attention to the fact that this appeal should have been on a stamp of Rs. 235 under Section 8 of the Court Fees Act, instead of being as it is on a stamp of Rs. 10 under Articleicle 17 (iv) of schedule II of the Court Fees Act. There can be no doubt but that the objection is well founded. Article 17 (iv)
Article 17 (iv)
Plaint or memorandum of appeal | | Ten
in a suit to set aside an award. | |
2. The vakil for the appellant, however, contends that the appeal having been admitted by the Registrar on a stamp of Rs. 10, no objection as to the amount of the stamp can now be taken, and he relies on the authority of the decision in Ranga Pai v. Baba I.L.R. 20 Mad. 398.
3. In that case, however, the Court assumed that there was a 'decision' by the taxing officer under Section 5 of the Court Pees Act, and the whole of the reasoning in that case proceeds on that assumption. In the present case, however, there was no 'decision' by the taxing officer within the meaning of Section 5 of the Court Fees Act. That Section requires that there should be, in the first instance, a difference of opinion between the officer whose duty it is to see that the proper fee is paid and any suitor or attorney as to the fee payable, and, secondly, that there should be a reference to the taxing officer, who should then give a 'decision' on the question raised. In the present case there was no such difference or reference, nor was there any decision by the taxing officer except such as might be implied from the admission of the appeal. That, in our opinion, is not such a 'decision' as the Section requires. We think that, unless the question was raised before the taxing officer and unless he brought his mind to bear on the question and decided it, Section 5 of the Court Fees Act had no application. Otherwise there would be no remedy for the most obvious error or even for a deliberate trick to defraud the stamp revenue, unless detected by the routine establishment in the first instance, and before the admission of the appeal or the reception of the paper, as the case might be: Section 28 of the Court Fess Act clearly contemplates the possibility of such mistakes and provides a remedy even in the High Court. We are, therefore, of opinion that the case relied on is not on all fours with the present case, and that Section 5 of the Court Fees Act does not prevent our now taking notice of the deficiency in the stamp duty.
4. under Section 582-A, Civil Procedure Code, we allow the appellant to pay the deficient stamp duty within one week from this date failing which the appeal will stand dismissed with costs.
5. This appeal coming on for final hearing and the appellant's vakil not having complied with the above order, the Court delivered the following judgment:
6. The deficient stamp duty not having been paid, the appeal is dismissed with costs. The costs will be calculated on the appellant's valuation of the appeal.