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In Re: Lakshmi Ammal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1926Mad96; (1925)49MLJ608
AppellantIn Re: Lakshmi Ammal
Cases ReferredShajan Bibi v. Earsin Dewan
Excerpt:
.....amount of the court-fee. if the court is not satisfied that the proper court-fee has been paid, it certainly would have insisted upon the proper court-fee being paid. the privy council has clearly laid down in rachappa subba rao v. if the court is not satisfied that the plaint is properly stamped it must dismiss the suit unless the proper stamp-fee is paid--see order 7, rule 11(c). if the question is not explicitly raised and the court proceeds with the trial, the court has implicitly decided that the stamp is sufficient......16 ic 46. the question before us was not specifically raised. there the question was whether the suit was properly valued under the suits valuation act and the high court held that any objection as to valuation should have been raised in the court of first instance as required by section 11 of act vii of 1887 (suits valuation act). in that case the lower appellate court raised the question sno motu when it was not taken either in the court of first instance or in the memorandum of appeal. the lower appellate court held that the suit was not properly valued and directed the plaint to be returned to the 'court of first instance as insufficiently stamped. the valuation of the appeal was the same as that in the first court. the learned judges observe at page 47:without, therefore,.....
Judgment:
ORDER

Devadoss, J.

1. The appellant purchased some property for Rs. 2,300 under a sale deed executed by the defendant and paid him Rs. 1,000 in cash and executed in favour of the defendant and his minor sons a mortgage deed for the balance of consideration for the sale. She brought a suit in the City Civil Court against the defendant alleging that the defendant had played a fraud on her by suppressing important facts and praying for a declaration that the sale deed and the mortgage deed were invalid and for the return of the Rs. 1,000 paid by her and for Rs. 300 as damages. The City Civil Judge dismissed the plaintiff's suit and the plaintiff preferred this appeal to the High Court. She paid the Court-fee on Rs. 1,300 being the amount claimed by her from the defendant. The Taxing Officer of this Court held that' the Court-fee paid was insufficient and that the Court-fee on Rs. 2,300 should be paid on the ground that the substantial relief asked for by the plaintiff was the cancellation of the sale deed. The appellant paid the additional Court-fee. The Taxing Officer further demanded the difference between the Court-fee paid by her in the City Civil Court and the Court-fee payable by her according to his view. The appellant's vakil objected to paying this difference and hence the reference to this Court,

2. This being a matter of considerable importance, we gave notice to the Government Pleader to appear on behalf of the Government. The first contention raised by Mr. Rangaswami Aiyangar, the appellant's vakil, is that there was no decision by the City Civil Judge under Section 12 of the Court Fees Act as to the proper Court-fee payable on the plaint and that only in cases where there is a decision by the Lower Court the Appellate Court has power under Section 12, Clause 2, to require a party to pay the additional Court-fee which the Appellate Court may consider to be the proper fee payable on the plaint. The contention amounts to this : that when a plaint is received and filed by the Court without the presiding officer of the Court giving his decision as to the amount of the proper Court-fee payable, there is no decision of the Court under Section 12. In order to be certain as to the practice prevailing in the City Civil Court we called for a report from the City Civil Judge. The learned Judge reports:

The principal ministerial officer attached to this Court, viz., the Sheristadar himself, personally receives all plaints and affixes the date stamp on them as soon as they are received. He then goes through the plaints and scrutinizes them carefully to ascertain whether they have been presented in time and whether they have been properly framed or stamped....It is only in cases where the principal ministerial officer feels any doubt and puts up the cases for formal orders by the Judge that the Judge applies himself to the question and gives his personal decision. This is the uniform course of proceeding that has been adopted during my time and I understand during the time of my predecessors as well.

3. So far as we are aware this is the practice obtaining in all mofussil Courts. Plaints and petitions are received by the chief ministerial officer who files them if he is satisfied that they are properly stamped. If he finds that they are not properly stamped, he draws the attention of the pleader concerned to the fact and the deficiency is made up. If there is a difference of opinion between the chief ministerial officer and the pleader concerned, the matter is placed before the Judge or the presiding officer of the Court who decides what the proper Court-fee is. If objection is taken by the opposite side as to the correctness of the valuation, or Court-fee, an issue is raised as regards that, and the Court decides what the proper valuation is and what Court-fee should be paid. The construction contended for by Mr. Rangaswami Aiyangar is not supported by the wording of Section 12, Section 12(1) is in these terms:

Every question relating to valuation for the purpose of determining the amount of any fee chargeable under this chapter on a plaint or memorandum of appeal shall be decided by the Court in which such plaint or memorandum, as the case may be, is filed, and such decision shall be final as between the parties to the suit.

4. He placed reliance upon the words 'shall be decided by the Court.' This does not mean that an issue shall be raised and decided by the Court. All that it means is that the Court, either the presiding officer or the ministerial officer who is charged with that duty, has to' determine what the Court-fee is. Where the chief ministerial officer's decision is demurred to, the Judge or the presiding officer decides in open Court after hearing the party concerned or his pleader, what the proper Court-fee is. It cannot be said that when the ministerial officer, whose duty it is to check the pleadings filed in Court and whose duty it is to see whether proper Court-fee is paid or not, decides what the proper fee is, his decision is not a decision of the Court. Mr. Rangaswami Aiyangar places reliance upon the decision in Kala Chand Sen v. Anund Kristo Bose (1874) 23 WR 433. in support of his contention. In that case the plaintiff paid a certain Court-fee on his plaint. The suit was decreed in favour of the plaintiff. The defendant appealed and paid the same Court-fee on his Memorandum of Appeal as was paid by the plaintiff on his plaint. When the appeal came on for hearing, the appellant raised the objection that the proper Court-fee was not paid on the plaint and therefore the plaint ought to have been rejected. The Subordinate Judge took the extraordinary course of requiring both the appellant and the respondent to pay deficient stamp duty, and on the failure of both to do so he ordered both the plaintiff's suit and the appeal to be dismissed. The plaintiff preferred a special appeal to the High Court. The High Court set aside the order of the Subordinate Judge as it practically amounted to allowing the appeal inasmuch as he dismissed the plaintiff's suit. In the course of the judgment the learned Judges observe:

It seems to us, therefore, that the Subordinate Judge ought not to have allowed to be raised on this occasion a question which neither had been raised in the first Court where, if necessary, the amount of additional stamp might have been at once paid, nor in the grounds of appeal.

5. The question raised here was not specifically raised there. Considering the course that the case took, the learned Judges thought that the defendant was in a way estopped from raising the question of Court-fee, inasmuch as he himself paid the same Court-fee on his appeal as was paid by the plaintiff on his plaint, and the order of the Subordinate Judge practically amounted to allowing the appeal which he could not have done when he found that the proper Court-fee was not paid for the appeal. In Shajan Bibi v. Earsin Dewan (1912) 16 IC 46. the question before us was not specifically raised. There the question was whether the suit was properly valued under the Suits Valuation Act and the High Court held that any objection as to valuation should have been raised in the Court of first instance as required by Section 11 of Act VII of 1887 (Suits Valuation Act). In that case the Lower Appellate Court raised the question sno motu when it was not taken either in the Court of first instance or in the memorandum of appeal. The Lower Appellate Court held that the suit was not properly valued and directed the plaint to be returned to the 'Court of first instance as insufficiently stamped. The valuation of the appeal was the same as that in the first Court. The learned Judges observe at page 47:

Without, therefore, expressing any opinion on the merits of the case, we hold that the learned Judge was not, in law, entitled to raise the objection and to decree the appeal on that ground.

6. These two cases have no application to the present case. In the present case the question is whether the Court of Appeal, when admitting an appeal, is entitled to demand under the provisions of Section 12, Clause 2, proper Court-fee payable in this Court as well as in the Court below by reason of the Judges in the Court, below not having given a decision as to the proper amount of the Court-fee.

7. Our attention is drawn by the learned Government Pleader to the case in Shama Soondary v. Hurro Soondary ILR (1881) C 348. In that case the District Judge on appeal held that before he could go into the merits of the case, he must, under Section 12 of Act VII of 1870, require the plaintiff to pay any such additional amount as would make up the fee payable on the suit. The High Court upheld the decision of the District Judge. There the learned Judges declined to follow the ruling in Kala Chand Sen v. Anund Kristo Rose (1874) 22 WR 433. holding that the expression of opinion relating to Section 12 of the Court Fees Act was an obiter dictum, and could not be regarded as an authoritative declaration of law. They observe at page 351:

No plaint can be accepted and registered until these preliminary questions of valuation and sufficiency of stamp have been determined by the Court, and therefore it seems to us that it would be straining the language of Section 12 to say that the question relating to valuation therein mentioned has only reference to a question raised as a distinct issue, and decided by the Court of first instance in the presence of, and as between, the parties to the suit.

8. It follows that where the Court accepts the plaint as properly valued, it must be taken that the Court has given its decision that the proper Court-fee has been paid. So long as the Court acts upon the footing that the proper Court-fee has been paid, its act amounts to a decision under Section 12, Clause 1 of the Court Fees Act. If the Court is not satisfied that the proper Court-fee has been paid, it certainly would have insisted upon the proper Court-fee being paid. Where it receives plaint, petition, or other pleading, as properly stamped, its act must be taken to fulfil the requirements of Section 12, Clause 1. This view is supported by the observations of Carnduff, J., in Surendranath v. Sitanath Das (1913) 21 IC 943. The learned Judge observes at page 944:

It is true that there is on the record of this case no express decision that the fee of Rs. 7-8-0 was sufficient ; but it seems to me that such a decision is implied by the action of the Court in receiving the application on a stamp of Rs. 7-8-0 and passing any order upon the prayer contained in it.

9. We hold that when a Court receives a plaint, petition, or any other pleading and files it as properly stamped, its act amounts to a decision that the proper Court-fee has been paid. If according to the practice prevailing in the Courts the chief ministerial officer files a plaint, or a petition, or other pleading, as being properly stamped or' that proper Court-fee has been paid, his act is an act of the Court within the meaning of Section 12, Clause 1.

10. The next contention is that in this case the proper Court-fee has been paid. Mr. Rangaswami, Aiyangar contends that the plaintiff asked for the return of Rs. 1,000 inasmuch as she was led into accepting the sale deed owing to the fraudulent conduct of the defendant, and the contract of sale being invalid, she is entitled to the neturn of the money paid by her. This contention overlooks the plain fact that the plaintiff could not get back the money paid by her without setting aside the sale. The transaction is not merely a contract but a conveyance. The plaintiff has acquired title to the property under the conveyance executed in her favour. The return of the consideration for the conveyance to the vendee could only be after setting aside the conveyance. So long as the plaintiff has the title to the property in her she cannot reasonably ask for the return of the purchase money paid. She can claim damages for breach of guarantee, or breach of covenant or title, but that is not the prayer in the plaint. The plaintiff prays that the sale deed and the mortgage deed, dated 22nd October, 1921, might be declared invalid and not binding on her. This prayer can only be granted on her valuing the suit as if for the cancellation of the sale-deed and by paying the proper Court-fee. If the transaction were a mere contract and not a conveyance, the plaintiff would be entitled to get back the amount paid by her on the ground that she entered into the contract owing to the fraud of the defendant. But, where the property has actually passed from one party to the other, the vendee cannot claim the amount paid by him without setting aside the sale. It is urged that under Section 7, Clause 4(c) the plaintiff is entitled to value the relief sought at Rs. 1,300, as that is the amount she claims. The main relief claimed is really the setting aside of the conveyance and the claim for money is only ancillary to it. To such cases Section 7, Clause 4(c) has no application. The Court Fees Act has been amended by Act V of 1922 (Madras Act) and the following clause has been enacted:

In a suit for cancellation of a decree for money or other property having a money value, or other document securing money or other property having such value,

according to the value of the subject-matter of the suit, and such value shall be deemed to be--

if the whole decree or other document is sought to be cancelled, the amount or the value of the property for which the decree was passed or the other document executed.

11. Here the plaintiff claims relief in respect of what was conveyed under the document. This new clause applies to the present case and I hold that the decision of the Taxing Officer of this Court is correct.

12. We are indebted to Mr. Anantakrishna Aiyar, the learned Government Pleader, for the valuableAssistance he gave us in this matter.

Wallace, J.

13. I agree.

14. The scheme of Section 12 of the Court Fees Act is to see that the revenue is not defrauded, that the proper fee payable to Government as the 'price' of the trial of the suit has been paid. It is difficult to see how a decision, on that point can rest upon the option of parties, or to say that the Act deliberately restrains Courts from interfering on behalf of the revenue unless the parties themselves, whose interests are in the main opposed to any increase in the Court-fee paid, move in the matter. It is obvious that the section is intended to permit the Taxing Officer of a Court to raise the question suo motu, whether the parties have raised it or not. The Privy Council has clearly laid down in Rachappa Subba Rao v. Shidappa Venkatrao ILR (1918) B 507: 36 MLJ 437 that ' The Court Fees Act was passed not to arm a litigant with a weapon of technicality against his opponent but to secure revenue for the benefit of the State. This is evident from the character of the Act and is brought out by Section 12 which makes the decision of the First Court as to value final as between the parties and enables a Court of Appeal to correct any error as to this only where the First Court decided to the detriment of the revenue.'

15. The wording of the section offers no difficulty since, in any case, the trying Court must decide the question of Court-fee implicitly or explicitly, before it can proceed to try the suit. If the Court is not satisfied that the plaint is properly stamped it must dismiss the suit unless the proper stamp-fee is paid--see Order 7, Rule 11(c). If the question is not explicitly raised and the Court proceeds with the trial, the Court has implicitly decided that the stamp is sufficient. If the parties or the Taxing Officer specifically raise the point then the Court gives an explicit decision thereon. In either case, there is a decision of the Court ; but while, when the parties have raised the point, the express decision of the Court will be final between them, the section permits the Appellate Court suo motu to raise the point in the interests 06 the revenue. This is the view laid down in Shama Soondary v. Hurro Soondary ILR (1881) C 348. with which I respectfully agree ; and the same view underlies the decisions in Narain Singh v. Chaturbhuj Singh ILR (1898) A 362 and Surendranuth v. Sitanath (1913) 21 IC 943. (the Calcutta High Court), and the decision of the Madras High Court in Tekana Kavandan v. Alagiri Kavandan (1914) 25 IC 506., and it is not opposed to that of the Full Bench in Amjid Ali v. Muhammad Israil ILR (1897) A 11. The case reported in Shajan Bibi v. Earsin Dewan (1912) 16 IC 46. raised and decided a question of jurisdiction only.

16. As to the second point it is clear that the mere declaration that the sale deed is not binding on the plaintiff will not enable the Court to decree the return of Rs. 1,000. The plaintiff is not entitled to have the sale deed remain in being and the return of the Rs. 1,000 also. If the defendant is to pay her the Rs. 1,000, the defendant must also be put in status quo ante the sale, that is, the sale must be cancelled. The sale is a bilateral contract, and one party cannot be rid of it merely by a declaration that it is not binding on her. She must release the other party also and place him in status quo ante. Hence the petitioner's suit is misconceived. She can have the declaration without the return of the money or she can have the money if the decree also cancels the sale deed. Her chief concern is the return of the money, and that she cannot have unless and until the sale is cancelled. Her suit is therefore one in effect for the cancellation of a sale deed and Section 7(iv)(a) of the Court Fees Act applies.

17. Time for paying the deficient Court-fee will be one week after the re-opening of this Court.


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