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AmIn Chand Vs. State of H.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Review No. 2 of 1972
Judge
Reported inAIR1974HP18
ActsHimachal Pradesh Court Fees Act, 1968 - Schedule - Articles 1 and 4; ;Constitution of India - Article 226
AppellantAmIn Chand
RespondentState of H.P. and ors.
Appellant Advocate M.R. Vasudeva, Adv.
Respondent Advocate B. Sitarama, Adv. General
Cases ReferredVijaishinghji v. Rajendrasinghji Viiyasinethji
Excerpt:
- .....constitution as two different documents while articles 1 and 2 of the first schedule speak of a plaint. article 1 (d) (iii) of the second shedule speaks of 'an application or petition' presented to the high court 'under article 226 of the constitution of india.....' i am ofopinion that an application or petition under article 226 of the constitution cannot be described as a plaint for the purposes of article 4 of the first schedule. therefore, for determining the court fee payable on the review petition before us. reference cannot be made to article 4 of the first schedule.3. the next question is whether article 1 (d) (iv) of the second schedule is attracted. the petition before us is for review oi a judgment disposing of a petition under article 226 of the constitution. it is a.....
Judgment:

R.S. Pathak, C.J.

1. The question before us is wihether on a petition for review of a judgment disposing of a writ petition the Court-fee is payable under Article 4 of the First Schedule or under Article 1 (d) (iv) of the Second Schedule of the Himachal Pradesh Court Fees Act. 1968. Article 4 of the First Schedule reads:

See for 1st Sch. below.

Article 1(d) (iv) of the Second Schedule reads:

See for 2nd Sch. below.

Number

Proper fee

1

2

3

'4. Application for review of judgment ifpresented before the ninetieth day from the date of the decree.

One half of the fee leviable on the plaint or memorandum of appeal.'

Article 1 (d) (iv) ofthe Second Schedule reads ;

'1. Application for petition.

(d) When presented to the HighCourt-

(i) .........

(ii) .............

(iii) Under Art. 226 ofthe Constitution of India other than petitions for habeas corpus and petitions arising out of criminalproceedings;

Fifty rupees Two rupees sixty-five paise.'

(iv) in all other cases.

2. The Schedules specify the Court fee payable on the documents mentioned therein. Article 4 of the First Schedule specifies that the court-fee payable on 'an application for review of judgment .....' is 'one half of the feeleviable on the plaint or memorandum of appeal.' It necessarily assumes, In my opinion, that the judgment of which review is sought has been made in a proceeding initiated by a plaint or a memorandum of appeal. That, it seems to me. is the only intelligible manner in which reference to the words 'the plaint or memorandum of appeal' can be construed. Although the word 'plaint' has not been defined in the Court-fees Act. it must be understood in its well-accepted connotation. A plaint has been described as 'a private memorial tendered to a Court in which the person sets fourth his cause of action; the exhibition of an action in writing.' Assan v. Pathumma, (1899) ILR 22 Mad 494. Section 26 of the Code of Civil Procedure requires that 'every suit shall be instituted by the presentation of a plaint.....'.

In common parlance, the word 'plaint' has now come to mean generally the document initiating a suit. In Indrajit-singhji Vijaishinghji v. Rajendrasinghji Viiyasinethji, AIR 1956 Bom 45 it was held that a petition for letters of administration with the will annexed is not a plaint. Merely because a petition initiates a proceeding of an original nature does not necessarily make it a plaint. A petition under Article 226 of the Constitution invokes the jurisdiction of a High Court for the issue of directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, qua warranto and certiorari. In my opinion, while such a petition initiates an original proceeding, it cannot be described as a plaint. The jurisdiction of the High Court under Article 226 of the Constitution is. in its essential nature, different from that exercised in a suit. The Himachal Pradesh Court Fees Act, 1968 itself contemplates a plaint and a petition under Article 226 of the Constitution as two different documents While Articles 1 and 2 of the First Schedule speak of a plaint. Article 1 (d) (iii) of the Second Shedule speaks of 'an application or petition' presented to the High Court 'under Article 226 of the Constitution of India.....' I am ofopinion that an application or petition under Article 226 of the Constitution cannot be described as a plaint for the purposes of Article 4 of the First Schedule. Therefore, for determining the Court fee payable on the review petition before us. reference cannot be made to Article 4 of the First Schedule.

3. The next question is whether Article 1 (d) (iv) of the Second Schedule is attracted. The petition before us is for review oi a judgment disposing of a petition under Article 226 of the Constitution. It is a petition made to the High Court. It has not been shown that it falls under any specific Article of any Schedule. In the circumstances, it must be considered as falling under Article 1 (d) (iv). It is an application or petition presented to the High Court in cases other than those expressly specified in the Schedules.

4. I am, therefore, of opinion that the court-fee payable is that specified by Article 1 (d) (iv) of the Second Schedule of the Himachal Pradesh Court-fees Act 1968.

Chet Ram Thakur, J.

5. I agree.


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