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Dhirendra Nath Mukherjee Vs. State of West Bengal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberC.O. No. 1233 of 1984
Judge
Reported inAIR1985Cal148,1984(2)CHN401,89CWN247
ActsWest Bengal Court-fees Act, 1970 - Section 7(1); ;West Bengal Court-fees (Amendment) Act, 1974
AppellantDhirendra Nath Mukherjee
RespondentState of West Bengal
Advocates:Deba Prosad Adhikary and ;Sudin Kumar Bhattacharya, Advs.
DispositionRevision dismissed
Cases ReferredKrishna Rao v. Radhakisan
Excerpt:
- .....by the learned magistral by his order dt. 24-6-83. following that the petitioner instituted a suit for damages for malicious prosecution against the opposite party, the state of west bengal, claiming rs. 55,001/- as damages, being money suit no. 36 of 1983 in the court of the learned subordinate judge at asansol.3. though according to the petitioner no court-fee is payable in such a suit under section 7 of the west bengal court-fees act, the learned subordinate judge by his order no. 8 dt. 4-1-84 directed him to pay court-fees under clause (i) of section 7 of file act.4. it is against the said order that the petitioner has come up in revision under section 115 of the code of civil procedure.5. mr. d. p. adhikary, the learned advocate, appearing in support of the revisional.....
Judgment:

S.R. Roy, J.

1. Whether any Court-fee should be paid in a suit for damages for malicious prosecution is the only point which arises for consideration in the present revisional application, which was taken up for hearing after condonation of the delay of nine days in filing the application in view of the grounds taken in the petition under Section 5 of the Limitation Act.

2. The petitioner Dhirendra Nath Mukhcrjee, a M. R. Dealer at Ukhra, P. S. Andal in the district of Burdwan, was criminally prosecuted on the complaint of the Sub-Divisional Controller of Food and Supplies, Durgapur under Section 406/423 of the Indian Penal Code in G. R. Case No. 1349 of 1973 of the Court of the Sub-Divisional Judicial Magistrate, Durgapur. The petitioner was acquitted by the learned Magistral by his order dt. 24-6-83. Following that the petitioner instituted a suit for damages for malicious prosecution against the opposite party, the State of West Bengal, claiming Rs. 55,001/- as damages, being Money Suit No. 36 of 1983 in the Court of the learned Subordinate Judge at Asansol.

3. Though according to the petitioner no Court-fee is payable in such a suit under Section 7 of the West Bengal Court-fees Act, the learned Subordinate Judge by his order No. 8 dt. 4-1-84 directed him to pay Court-fees under Clause (i) of Section 7 of file Act.

4. It is against the said order that the petitioner has come up in revision under Section 115 of the Code of Civil Procedure.

5. Mr. D. P. Adhikary, the learned Advocate, appearing in support of the revisional application contended that a suit for damages for defamation and one for damages for malicious prosecution being identical in nature and character and loss of reputation being one of the essential ingredients in both the cases, the learned. Subordinate Judge should have held that no' Court-fee is payable in a suit for damages for malicious prosecution like a suit for damages for defamation in view of the added proviso to Clause (i) of Section 7 of the West Bengal Court fees Act.

6. The opposite party, the State of West Bengal, unfortunately went unrepresented, though notice of the application was duly served on the State.

7. Section 7(1) of the West Bengal Court-fees Act, 1970 (Act X of 1970) provides as hereunder --

'The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows : --

(i) In suits for money including suits for damages or compensation, or arrears of maintenance, of annuities, or of other sums payable periodically according to the amount claimed.

Provided that no fee shall be payable in suits for damages for defamation'.

8. It is clear from Clause (i) of Section 7 that Court-fee is payable in a suit for damages like any other money claim.

9. By the West Bengal Court-fees (Amendment) Act, 1974 (West Bengal Act XLII of 1974) a proviso was, however, added to Clause (i) of Section 7 to provide that no Court-fee shall be payable in suits for damages for defamation,

10. In their wisdom the Legislature did not consider it necessary to save any other class of suit from levy of Court-fees. The propriety or otherwise of such wisdom in the economic field is not for the Courts to consider.

11. The language of the added proviso, as quoted above, is more than clear and leaves no such ambiguity as to include in its fold suits of any other class or description.

12. 'It is a well-settled rule of law that all charges upon the subject must be imposed by clear and unambiguous language, because in some degree they operate as penalties : the subject is not to be taxed unless the language of the statute clearly imposes the obligation and language must not be strained in order to tax a transaction which, had the legislature thought of it, would have been covered by appropriate words. 'In a Taxing Act', said Rowlatt J., 'one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used. But this strictness of interpretation may not always enure to the subject's benefit, for if the person sought to be taxed comes within the letter of the law he must be taxed, however great the hardship may appear to the judicial mind to be'. (Maxwell on the Interpretation of Statutes. I2th Edn. p. 256).

13. Thus, in the matter of interpretation of a fiscal statute it is not the spirit of the law but the letter of the law, that has to be adhered to. Nothing could be imported into the language used by the legislature to enlarge the scope of the provision nor anything could be taken out to curb its application or to give it a different meaning than what the language clearly and unambiguously indicates.

14. Similar view of the matter has been taken by the Supreme Court in A.V. Fernandez v. State of Kerala reported in : [1957]1SCR837

'It is no doubt true that in construing fiscal statutes and in determining the liability of a subject to tax one must have regard to the strict letter of the law and not merely to the spirit of the statute or the substance of the law. If the Revenue satisfied the Court that the case falls strictly within the provisions of the law, the subject can be taxed. If, on the other hand, the case is not covered within the four corners of the provisions of the taxing statute, no tax can be imposed by inference or by analogy or by trying to probe into the intentions of the legislature and by considering what was the substance of the matter'.

15. In view of the clear and unambiguous language of the added proviso it is futile for us to embark into an enquiry about the intention of the legislature in excluding a suit for damages for malicious prosecution from its purview.

16. As the Supreme Court observed in Innamuri Gopalan v. State of Andhra Pradesh : [1964]2SCR888 :

'The entire matter is governed wholly by the words of the provision. If the tax-payer is within the plain terms of the exemption he cannot be denied its benefit by calling ip aid any supposed intention of the exempting authority. If such intention can be gathered from the construction of the words of the statute or rule or by necessary implication therefrom, the matter is different..............

17. In the instant case it was sought to be urged on behalf of the petitioner that by necessary implication the added proviso Clause (i) of Section 7 of the West Bengal Court-fees Act should be deemed to include suits for damages for malicious prosecution as well, loss of reputation being the common ingredient of a suit for damages for defamation as well as a similar suit for malicious prosecution. This point was also urged before the learned Sub-ordinate Judge, who negatived it and in our view, rightly.

18. Defamation, as is now well settled, is the publication of a defamatory statement or a statement which imputes conduct or qualities, tending to disparage or degrade any person or expose him to contempt, ridicule or public hatred without just cause or excuse, whereby he suffers injury to his reputation.

19. In a suit for damages for defamation the plaintiff is required to prove that he is the particular person defamed by the defamatory words or that the imputation was directed against him.

20. In a suit for damages for malicious prosecution on the other hand--

(a) a proceeding must have been instituted;

(b) the said proceeding must have terminated in favour of the plaintiff;

(c) the defendant must have acted without reasonable or probable cause; and

(d) the defendant must have acted maliciously.

21. It is an abuse of the legal process to proceed against any person maliciously and without any reasonable or probable cause. 'Such an abuse may of necessity be injurious as involving damage to character, or it may in any particular case bring about damage to person or property'-- (Clerk and Lindsell on Torts, 9th Edn. P. 662).

22. The two types of suits for damages, namely, for defamation and malicious prosecution are, therefore, essentially different having different ingredients, barring of course, damage or injury to character or reputation.

23. The Nagpur High Court in Krishna Rao v. Radhakisan reported in AIR 1956 Nag 264, also took the view that 'a claim for damages for malicious prosecution is quite a separate species of tort from a claim for damages for defamation'. ,

24. A suit for damages for malicious prosecution may sometimes act as a deterrent to a person's right to put the criminal law in motion, because sometimes even a good cause may not succeed for want of adequate evidence, the availability of which is dependent now-a-days on circumstances more than one. Possibly this might have prompted the legislature not to make a suit for damages for malicious prosecution easy sailing by exempting such suits from payment of Court-fees.

25. But whatever might have been the intention of the legislature, the fact remains that in the added proviso under consideration it is only suits for damages for defamation which have been exempted from payment of Court-fees. It can neither be gathered from the construction of the words of the said proviso or by necessary implication therefrom that it also covers suits for damages for malicious prosecution.

26. In the above view of the matter, we are inclined to hold that the learned Subordinate Judge acted legally in exercise of his jurisdiction in directing the petitioner (plaintiff) to pay Court-fees on the amount of the damages claimed by him in the suit in view of Clause (i) of Section 7 of the West Bengal Court-fees Act, 1970.

27. The revisional application accordingly fails.

28. No order is made for costs.

29. Let a copy of this order be communicated to the Court below without delay.

Anil K. Sen, J.

30. I agree.


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