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Sundaram Finance Limited Vs. the State of Tamil Nadu by Secretary, Home Department - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1984)1MLJ1
AppellantSundaram Finance Limited;rubber General Industries, Represented by Its Partner, V.P. Vathsarajan;the
RespondentThe State of Tamil Nadu by Secretary, Home Department ;The State of Tamil Nadu, Represented by the S
Cases ReferredSriramulu v. Registrar
Excerpt:
- - registrar, high court (1975)1mlj390 ,holding the levy of ad valorem court-fee to be bad, the petitioner is entitled to refund of the excess court-fee being the difference between the court-fee payable under the 1955 act and the court-fee payable under the 1922' act......declared article i of schedule i of 1955 act to be ultra vires and void, the state has filed an appeal to the supreme court in c.a. no. 736|(n) of 1975 and the same is pending, that the supreme court has also stayed this court's judgment and permitted the state of tamil nadu to collect the court-fee at the rate of 71/2% ad valorem on the value of the claim under schedule i, article i of the 1955 act on condition that in case the state fails in its appeal before the supreme court they shall refund the excess court-fee collected and that, therefore, the state is not bound to refund the alleged excess court-fee claimed by the petitioner in the writ petition. thus the main question that arises in the writ petition at this stage is as to whether the petitioner is entitled to the refund of.....
Judgment:

Ramanujam, J.

1. Since in all these matters the validity of the Court-Fees and Suits Valuation Act, 1955, hereinafter referred to as the 1955 Act has been challenged, they have been heard together and a common judgment is rendered.

2. W.P. No. 10 of 1979 is for a direction to the respondent, State of Tamil Nadu to refund to the petitioner the excess court-fee paid on the plaints in O.S. No. 158 of 1972 on the file of the Sub-Court, Tanjore on the ground (1) that the provision of the Act providing for payment of court-fee at 71/2% ad valorem, replacing taping scale of court-fee provided in the 1922 Act is unjust, unreasonable, that the levy of court-fee at 71/2% ad valorem amounts to a levy of tax and not a fee, and that in view of the Bench decision of this Court in Sriramulu v. Registrar, High Court : (1975)1MLJ390 , holding the levy of ad valorem court-fee to be bad, the petitioner is entitled to refund of the excess court-fee being the difference between the court-fee payable under the 1955 Act and the court-fee payable under the 1922' Act. According to the petitioner the excess court-fee paid in the suit O.S. No. 158 of 1972 is as under:

Court-fee paid. Court-fee payable Difference refundable.under 1922 Act.Rs. Rs. Rs.9,000-50 2,182-43 6,818-07

3. The respondent, State of Tamil Nadu contends in its written statement that though this Court in Sriramulu v. Registrar, High Court : (1975)1MLJ390 , had declared Article I of Schedule I of 1955 Act to be ultra vires and void, the State has filed an appeal to the Supreme Court in C.A. No. 736|(N) of 1975 and the same is pending, that the Supreme Court has also stayed this Court's judgment and permitted the State of Tamil Nadu to collect the court-fee at the rate of 71/2% ad valorem on the value of the claim under Schedule I, Article I of the 1955 Act on condition that in case the State fails in its appeal before the Supreme Court they shall refund the excess court-fee collected and that, therefore, the State is not bound to refund the alleged excess court-fee claimed by the petitioner in the writ petition. Thus the main question that arises in the writ petition at this stage is as to whether the petitioner is entitled to the refund of the court-fee notwithstanding the above stay orders passed by the Supreme Court.

4. According to Mr. V. K. T. Chari, learned Counsel for the petitioner, the Supreme Court had no jurisdiction to grant stay of the judgment of this Court as such, though it has jurisdiction to stay the execution of any order or decree passed by the Court below, and since the order passed by the Supreme Court is without jurisdiction, it should be taken to be void and non est in law in which case this Court can give relief to the petitioner notwithstanding the pendency of the appeal before the Supreme Court. In support of this plea the learned Counsel refers to the provision in Order 45, Rule 13 of the Code of Civil Procedure, which enables the Court which grants the certificate to stay the execution of the decree appealed from and Article 145 (h) of the Constitution of India, which contemplates a stay of the proceedings from which the appeal before the Supreme Court arose. Based on the above provisions the submission of the learned Counsel is that the Supreme Court has jurisdiction to stay execution of the decree appealed against or to stay the proceedings pending before the Court below but it has no jurisdiction to stay the judgment, as such of the Court holding the 1955 Act to be invalid. According to the learned Counsel if the stay order passed by the Supreme Court is invalid, it should be taken to be non est in law in which case the State is bound to refund the excess court-fee paid on the plaint in the suit referred to above. In support of this plea that if an order is passed by a Court without jurisdiction it is ab initio void and, therefore, non est, reference has been made by Mr. V. K. T. Chari to the following passage in 10, Halsbury's Laws of England, 4th edition, page 323, paragraph 715:

Meaning of 'jurisdiction'. By 'justidiction' is meant the authority which a Court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the Court is constituted and may be extended or restricted by similar means.

If no restriction or limit is imposed the-jurisdiction is said to be unlimited. A limitation may be either as to the kind and' nature of the actions and matters of which the particular Court has cognisance, or as. to the area over which the jurisdiction extends, or it may partake of both these characteristics. If the jurisdiction of an inferior Court or tribunal including an arbitrator, depends on the existence of a particular state of facts, the Court or tribunal must enquire into the existence of the facts in order to decide whether it has jurisdiction, but, except where the Court or tribunal has been given power to determine conclusively whether the facts exist, the Queen's Bench Divisional Court will inquire into the correctness of its decision by means of proceedings for mandamus, prohibition or certiorari. Where a Court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given. The jurisdiction of an inferior Court is not lost by mere non-user.

Reference is also made to the decision in A.G. v. Lord Hotham (1827) 3 Russ. 415, wherein it was held:

Where a Tribunal determines a matter not within its jurisdiction, the decision is a nulity.

Per contra, the learned Advocate-General submits that the stay order passed by the Supreme Court is not without jurisdiction, that the Supreme Court has got ample jurisdiction to stay the judgment of this Court holding the 1956 Act to be invalid, in exercise of its power under Article 142 of the Constitution which enables it to pass such decree or such order as is necessary for doing complete justice in any cause or matter pending before it, that Article 145 (1)(h), which is merely an enabling power to make rules as to stay of proceedings cannot control or limit the power of the Supreme Court under Article 142 (1) ; that the provisions of Order 45, Rule 13 of the Code of Civil Procedure, could not be taken to limit the power of the Supreme Court to grant stay of the judgment of the lower Court. The learned Advocate-General refers to the following decisions of the Supreme Court in support of his submission that under Article 142, the Supreme Court has wide powers in the matter of granting stay : K. M. Nanavati v. The State of Bombay : 1961CriLJ173 and Golak Nath v. State of Punjab : [1967]2SCR762 . In Nanavati's case : 1961CriLJ173 , the Supreme Court, while dealing with the scope of Article 142, observed that it confers on the Supreme Court, a wide and comprehensive power to make such order as is necessary for doing complete justice in any cause or matter pending before it and that such wide and comprehensive power in respect of any determination by any Court or Tribunal must carry with it the power to pass orders incidental or ancillary to the exercise of that power. The same view has been taken in State of U.P. v. Poosu : 1976CriLJ1373 . Mr. V. K. T. Chari, would, however, contend that the power under Article 142 cannot comprehend a power to pass an interim order pending the appeal as that Article will apply only to final orders and not to interim orders, and that the power to grant stay could be traced Only to Article 145 (h) and not to Article 142.

5. We are not inclined to agree with the said submission of the learned Counsel for the petitioner. Article 145 gives the Supreme Court power to make rules generally regulating the practice and procedure of the Court in exercising its powers and that Article cannot be taken to control or limit the operation of Article 142. In this view we are not inclined to agree with the learned Counsel that the Supreme Court had no jurisdiction to stay the operation of the judgment of this Court striking down the provisions of the 1955 Act.

6. Even otherwise, we feel that this Court cannot sit in appeal over the interim orders passed by the Supreme Court in the appeal pending before it. The Supreme Court by an order, dated 28th April, 1975 in Civil Appeal Nos. 736 (N) 2637 of 1975 ordered as follows:

(1) That the operation of the judgment, dated 3rd March, 1975 of the Madras High Court in Writ Petition No. 749 of 1966, be and is hereby stayed;

(2) that the petitioners appellants herein will be entitled to collect the fee at the rate of 71/2% ad valorem on the value of the claim in appeal under Section 51. Schedule I, Article I, of the Madras Court-Fees and Suits Valuation Act (XIV of 1955) ;

(3) that in case the petitioner appellants herein do not succeed in the appeal abovementioned in this Court, the petitioners appellants shall refund whatever is refundable excluding the High Court fees.

Thus the Supreme Court having ordered stay of the operation of this Court's judgment in W.P. No. 749 of 1966, the respondents are entitled to collect the court-fee at 71/2% ad valorem under Schedule I, Article I of the 1955 Act. We are bound by the said order and it is not therefore possible at this stage to direct the refund of the court-fee to the writ petitioner basing ourselves on the judgment of the High Court which stands stayed by the Supreme Court.

7. However, having regard to the fact that the related appeal against the judgment rendered in the suit in respect of which the court-fee is said to have beep paid, is pending before this Court, the Writ Petition No. 10 of 1979 will be posted along with the said appeal for disposal in the light of the decision of the Supreme Court in C.A. Nos. 736 (N) 2637 of 1975.

Writ Petition No. 1913 of 1980.

8. In this case the petitioner seeks a writ of mandamus directing the State Government to collect court-fee on the plaint only under sections SO and 52 of the Court Fees and Suits Valuation Act, 1955 and restraining the Government from collecting the court-fee on the plaint under Article I, Schedule I, of the Court Fees and Suits Valuation Act, 1955. According to the petitioner in this writ petition, since the 1955 Act has been struck down by this Court as invalid, the State Government is not entitled to collect court-fee at 7l/2% ad valorem under Article I, Schedule I of the 1955 Act and therefore the return of the plaint on the ground that such court-fee has not been paid is not proper and, therefore, a mandamus has to issue. As already stated, the decision of this Court stands stayed by the Supreme Court at the instance of the State Government and, therefore, the Government is entitled to collect the court-fee under Article I, Schedule I of the 1955 Act. In view of the said stay orders of the Supreme Court it is open to the petitioner to pay the full court-fee under Article I, Schedule I of the 1955 Act and claim refund later or withdraw the plaint and present it after the Supreme Court renders its judgment subject to the law of limitation. The learned Counsel for the petitioner, would, however, submit that the Sub-Court, Ooty, may be asked to retain the plaint without returning awaiting the decision of the Supreme Court. We do not see how this Court can direct the lower Court to keep a plaint unnumbered indefinitely. Therefore the Sub-Court, Ooty, cannot be directed to receive the plaint without payment of the full court-fee and keep it pending indefinitely. The petitioner is, however, given 2 months' time from this date for payment of the full court-fee on the plaint and liberty is given to the petitioner to seek refund of the excess court-fee if the Supreme Court ultimately affirms the decision of this Court.

9. With the above directions, the writ petition is dismissed.

A.S. No. 310 of 1980.

10. This appeal has been filed by the Government under Section 54 of the Land Acquisition Act, questioning the award passed by the Land Acquisition Officer in C.R.O.P. No. 297 of 1972, before the Sub-Court, Chingleput. The respondent in the appeal who was the claimant before the Sub-Court has filed a memorandum of cross-objections in S.R. No. 46416 of 1980 seeking a higher compensation. In that cross-objections the court-fee payable comes to Rs. 21,961 as per Article I, Schedule I of the 1955 Act. But the cross-objector, paid on his memorandum of cross-objections a court-fee of Rs. 300 under Section 50 (4) of the 1955 Act. Since the office returned the cross-objections for payment of the full court-fee, he has filed C.M.P. No. 11006 of 1981 contending that as the 1955 Act has been struck down in Sriramulu v. Registrar, High Court : (1975)1MLJ390 , he is not bound to pay the court-fee at 7J/2 per cent. ad valorem on the excess compensation claimed by him. As already seen though the 1955 Act has been struck down by this Court, the said judgment has been stayed by the Supreme Court and the State has been enabled to collect court-fee under Article I, Schedule I of the 1955 Act on condition that it will refund the excess court-fee if ultimately the decision of the Supreme Court goes against the Government. In view of the fact that the State Government is entitled to collect tht court-fee at 71/2% ad valorem as per the interim orders passed by the Supreme Court, the appellant has to naturally pay the court-fee on the cross-objections at 71/2% ad valorem. As it is said that the petitioner in the C.M.P. is unable to pay court-fee ad valorem C.M.P. No. 11006 of 1981 and the cross-objections will be posted along with the appeal under the hope that the Supreme Court will render its decision before the appeal is taken up for hearing. Even if the appeal comes up for hearing before the Supreme Court renders its judgment in the Civil Appeal, it is open to the petitioner to move the Court for adjournment of the same until after the Supreme Court renders its decisions in the above Civil Appeal.

11. Mr. V.K.T. Chari submits that whatever happens before the Supreme Court in the appeal against the judgment of this Court in Sriramulu v. Registrar, High Court : (1975)1MLJ390 , still there is an obligation on the part of the State Government to consider afresh the question as to what is the proper court-fee to be levied in future. The learned Counsel points out that the 1955 Act was struck down by this Court on the ground that the 71/2% ad valorem court-fee levied under the Act is unreasonable and takes the character of a tax. The Act was sought to be justified by the State Government on the ground that the court-fee levied under the 1922 Act was not sufficient to meet the cost of justice and, therefore, an enhancement under 1955 Act in the court-fee was justified According to the learned Counsel a fresh look is necessary now having regard to the present-cost of administration of justice and the amount collected by way of court-fee. The learned Counsel has taken us through the recommendation of the Law Commission of India in its 54th Report on court-fee and the report of the Sub-Committee of the Consultative Committee for the Ministry of Law, Justice and Company Affairs to indicate that it is one of the primary duties of the State to provide machinery for the administration of justice and on principle it is not proper for the State to charge fee from suitors in Courts, that even if a court-fee is to be charged the revenue derived from them should not exceed the cost of the administration of justice and the State cannot make a profit from the administration of justice. The learned Counsel also has taken us through the Budget Memorandum, 1982-83 and the detailed budget estimates of the revenue for 1982-83 which indicate the following position.

Expenditure : Demand No. 13 : Administration of Justice.Accounts Budget Revised BudgetHead of Account. 1980-81 estimate Estimate estimate1981-82. 1981-82 1982-83(1) (2) (3) (4) (5)(in Lakhs of rupees).214 Administrationof Justice--HighCourts. 1,01,64 1,17,00 1,19,39 1,24,73Civil andSessions Courts. 3,69,25 4,33,88 4,69,85 5,29,82Small Causes Courts. 15.44 15.21 18.01 18.23_________ _________ _________ _________4,86.33 6,07.25 6,72.78Revenue Receipts : JudicialCourt fee realisedin Stamps. 5,77.55 7,01.37 7,59.48Sale of Stamps 11.84 12.48 12.98Other receipts. 0.92 2.00 2.00___________ ___________ ___________5,90,31 7,15,85 7,74,46___________ ___________ ___________

It is pointed out by Mr. V. K. T Chari that She income received by way of court-fees is far in excess of the expenditure incurred for administration of justice which when averaged for three years from 1980-81, 1981-82 and 1982-83 comes to Rs. 108 lakhs. This shows that there is considerable room or justification for reduction of the court-fee. It is also pointed out by the learned Counsel that the collection of court-fee on an ad valorem basis is quite arbitrary and un-reasonable and this is the view taken both by the Law Commission and also by the Sub-Committee of the Consultative Committee referred to above, that apart from the fact that a collection of ad valorem court-fee is unreasonable, there is a surplus income by way of court-fee for the the last three years and this indicates that as at present there is a case for considerable reduction in court-fee.

12. It cannot be disputed that the court-fee is not a tax and, therefore, it must satisfy the criterion necessary for the levy of fee. It should also be borne in mind that it is the primary duty of the State to provide the necessary machinery for the administration of justice, at its cost and that in any event the State is not entitled to collect court-fee in excess of the expenditure actually incurred for administration of justice and it cannot make a profit from the administration of justice. If the principle of quid pro quo which is normally adopted in the matter of collection of fee, then the quantum of court-fee to be paid should have a proper correlation with the cost of providing a machinery for administration of justice. Though there is considerable force in the submission made by Mr. V. K. T. Chari, the learned Counsel for the petitioner that there is a case for reduction of the court-fee and that in any event the levy of ad valorem fee at 7 1/2% is highly excessive and arbitrary, we are not in a position to deal with the matter at this stage. This Court is not in a position to direct the Government to fix a court-fee at a particular level for, we have the power to see whether the fixation of court-fee is reasonable or not as and when the Government decides to fix the court-fee. We therefore leave it to the Government which is welfare State to consider the question of fixation of court-fee in the light of the materials referred to above including its own budget (memorandum submitted in the year 1982-83 in the interest of the litigant public. With these observations the civil miscellaneous petition and the Memorandum of objections in S.R. No. 46416 of 1980 are dismissed. There will be no order as to costs in any of these petitions.


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