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Mandir Sri Deota Jakh Vs. Sishi Ram - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. No. 41 of 1952
Judge
ActsCourt-fees Act, 1879 - Schedule - Article 13; ;Himachal Pradesh (Courts) Order, 1948; ;Merged States (Laws) Act, 1949 - Section 5
AppellantMandir Sri Deota Jakh
RespondentSishi Ram
Appellant Advocate Amarchand Hoshiarpuri, Adv.; L.N. Sethi, Govt. Adv.
Respondent Advocate Amarchand Sud, Adv.
Cases ReferredMunshi Ram v. Raghubir Chand
Excerpt:
- .....of like value.4. the learned counsel for the plaintiff-petitioner places reliance on section 5, merged states (laws) act, 1949, which came into force on 1-1-1950. the section, so far as relevant, runs as follows :'if immediately before the commencement of this act there is in force in any of the new provinces or merged states an act, ordinance, regulation or other law corresponding to an act, ordinance or regulation specified in the schedule, whether such act, ordinance or regulation is in force by virtue of an order under the extra-provincial jurisdiction act, 1947 (47 of 1947), or by virtue of any other legislative power, such corresponding law shall upon the commencement of this act in a new province stand repealed.' this state of himachal pradesh is a 'new province', as defined in.....
Judgment:
ORDER

Chowdhry J.C.

1. This is an application in revision by the plaintiff Mandir Sri Deota Jakh of Jakh-noti, an idol, through its managers. It obtained a decree from the Court of the Subordinate Judge of Rohru on 31-8-1951 against the defendant-respondent Sishi Ram for recovery of Rs. 360/- as the amount realized by him from various subscribers for the use of the idol. On the defendant's appeal the learned District Judge of Mahasu and Sirmur set aside on 18-3-1952 the judgment and decree of the trial Court and dismissed the suit. The plaintiff has now come up in revision to this Court.

2. There is an office objection that the court-fee paid by the petitioner is deficient, and this objection has been supported by the learned counsel for the defendant-respondent and by the learned Government Advocate on behalf ofthe State.

3. The petitioner has paid a court-fee of Rs. 2/- as on an application or petition under Sch. II, Article l(d) Court-fees Act. The objection is that in view of para 36, Himachal Pradesh (Courts) Order, 1948, the court-fees payable on applications to this Court for the exercise of its revisional jurisdiction under para 35 is the same as those payable on like applications to the High Court of Judicature for the East Punjab, i.e. Rs. 2/- when the amount or value of the subject-matter in dispute does not exceed Rs. 25/- and the fee leviable on a memorandum of appeal when such amount or value-exceeds Rs. 25/-, as prescribed by Schedule I Article 13, Court-fees Act. In the present case as the amount exceeds Rs. 25/- the fee leviable would come to Rs. 27/-, that being the fee leviable on a memorandum of appeal of like value.

4. The learned counsel for the plaintiff-petitioner places reliance on Section 5, Merged States (Laws) Act, 1949, which came into force on 1-1-1950. The section, so far as relevant, runs as follows :

'If immediately before the commencement of this Act there is in force in any of the new Provinces or merged States an Act, Ordinance, Regulation or other law corresponding to an Act, Ordinance or Regulation specified in the Schedule, whether such Act, Ordinance or Regulation is in force by virtue of an Order under the Extra-Provincial Jurisdiction Act, 1947 (47 of 1947), or by virtue of any other legislative power, such corresponding law shall upon the commencement of this Act in a new Province stand repealed.'

This State of Himachal Pradesh is a 'new Province', as defined in Section 2(b), Merged States (Laws) Act. One of the Acts mentioned in the schedule extended to Himachal Pradesh was the Court-fees Act, 1870. It was argued that the aforesaid corresponding law as contained in para 36, Himachal Pradesh (Courts) Order, 1948, which was promulgated by the CentralGovernment in exercise of the powers conferred by Sections 3 and 4, Extra-Provincial Jurisdiction Act 1947 (47 of 1947), stood repealed by virtue of Section 5, Merged States (Laws) Act, 1949. It was, therefore, urged that Article 13 of Sch. I was no longer applicable and revision petitions are chargeable under Article l(d) of Sch. II, Court-fees Act.

5. The suit giving rise to the present revision relates to an area which was formerly a part of the Bashahr State. Under Section 5(b), Bashahr State Courts Act (I of 1943), which came into force on 1-4-1943, read with a notification issued by the Raja of Bashahr on 24-8-1946, the Indian Court-fees Act (7 of 1870) as modified upto date, including the amendments effected by the Court-fees (Punjab Amendment) Act, 1922, was applicable to all suits, appeals or applications except that the table of ad valorem court-fee given in the Schedule of those Acts was not to apply and the rate of ad valorem court-fee was to continue as before. The administration of a number of States, including the Bashahr State, was taken over by the Central Government under the Himachal Pradesh (Administration) Order, 1948, which came into force on 15-4-1948.

Under Section 5 of this Order all laws in force in Himachal Pradesh or any part thereof immediately before the commencement of this Order were to continue in force until repealed or amended by a competent legislature or authority. That being so, the Court-fees Act, 1870, was already in force in the area which formed part of the former Bashahr State when the Himachal Pradesh (Courts) Order, 1948, was passed on 15-8-1948. Paragraph 36 of this Order had the effect of amending the Court-fees Act to this extent that revision petitions became chargeable as in the Punjab under Sch. I Article 13.

6. Then followed the Himachal Pradesh (Application of Laws) Order, 1948, which came into force on 25-12-1948. Under para 3 of this Order the enactments specified in the schedule appended to the Order, which included the Court-fees Act, 1870, were applied to Himachal Pradesh subject, inter alia, to any amendments to which the enactments were for the time being generally subject in the territories to which they extended. That being so, so far at least as the area covered by the former Bashahr State is concerned, the Court-fees Act, 1870, continued to be in force as amended by para 36, Himachal Pradesh (Courts) Order, 1948. The Merged States (Laws) Act, 1949, then came into force on 1-1-1950 and its purpose was to extend certain laws to certain areas. One of such areas, as already seen, was the then Chief Commissioner's Province of Himachal Pradesh, and one of the laws extended thereto was the Court-fees Act, 1870. Can it be said that by virtue of Section 5 of this Act the Court-fees Act 1870, as amended by para 36, Himachal Pradesh (Courts) Order, 1948, stood repealed

7. The section provides for repeal of a law corresponding to the one specified in the Schedule. The law in force immediately before the commencement of the Merged States (Laws) Act, 1949, was the same which this Act purported to extend, viz., the Court-fees Act, 1870. That law did not become different by reason merely of the fact that it was applicable in the area in question subject to the amendment effected by para 36, Himachal Pradesh (Courts)Order, 1948. It follows, therefore, that the law in force in the area in question immediately before the commencement of the Merged States (Laws) Act, 1949, was the same law as, and not law corresponding to, the Act specified in the Schedule to the Merged States (Laws) Act, and it did not, therefore, come under the mischief of Section 5 of the Act.

In other words, the Court-fee's Act, 1870, as amended by para 36, Himachal Pradesh (Courts) Order, 1948, continued to be in force in the area in question despite the provisions of Section 5 Merged States (Laws) Act, 1949. I, therefore, hold that the proper court-fee payable on the present revision petition is Rs. 27/- under Schedule I, Article 13, Court-fees Act. The learned counsel for the petitioner cited--'Munshi Ram v. Raghubir Chand', AIR 1952 Him. P. 60 (A). That case has, however, no application since it did not relate to a revision petition but to an appeal.

8. The petitioner is hereby ordered to make good the deficiency of court-fee in the light of the above finding upto 7-9-1953.


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