(1) This is a defendants' appeal in which court-tee is payable on Rs. 4,496/5/-. According to the Taxing Officer the fee is payable under the Court-Fees Act (VII (7) of 1870), as amended by the Punjab Court Fees (Amendment) Acts of 1922, 1926 and 1939, and as such there is a deficiency of Rs. 125/-. According to the appellants, the fee is payable under the Court-Fees Act of 1870 without taking into consideration the aforesaid amendments made in the Punjab.
(2) In exercise of the powers conferred by Section 4 of the Extra Provincial Jurisdiction Act (XLVII (47) of 1947) the Central Government passed the Himachal Pradesh (Application of Laws) Order, 1948, which came into force on 25-12-1948. The enactments, both Central and Provincial, which were applied to Himachal Pradesh under this Order were specified in the Schedule appended thereto. One of such enactments was the Court-Fees Act (VII (7) of 1870) as amended by the Punjab Court-Fees (Amendment) Acts of 1922, 1926 and 1939. Subsequently, i.e., on 1-1-1950, the Merged States (Laws) Act (LIX (59) of 1949) was passed whereunder certain Acts, Ordinances and Regulations specified in the Schedule annexed thereto were extended amongst others to this State of Himachal Pradesh, and one of these Acts was the Court Fees Act (VII (7) of 1870). It was however not mentioned that this Act was applied as amended by the aforesaid Punjab Amendment Acts. The learned counsel for the defendants-appellants contended that it is not open to any Court to proceed upon the assumption that the Legislature had made a mistake in omitting mention of the Punjab Amendment Acts in the Schedule appended to the Merged States (Laws) Act, 1949. He further argued that it must be presumed that this omission on the part of the Legislature was deliberate and not due to forgetfulness. These contentions are in my opinion incontestable. They are based on the well-known rule of construction contained in the maxim 'expressum facit cessare taciturn' (what is expressed makes what is not expressed to cease), as pointed out by Tek Chand J. in 'MADHO SINGH v JAMES R.R. SKINNER', AIR 1942 Lah 243 at p. 251. The learned Judge, relying upon the speech of Lord Halsbury in the House of Lords in the well-known case of 'COMMRS. FOR SPECIAL PURPOSES OF INCOME-TAX v. JOHN FREDERICK PEMSEL', (1891) A. C. 531, at p. 549, went on to observe as follows : 'It is not competent to any Court to proceed upon the assumption that the Legislature has made a mistake. Whatever the real fact, may be, I think a Court of law is bound to proceed upon the assumption that the legislature is an ideal person that does not make mistakes. It must be assumed that it has intended what it has said, and I think any other view of the mode in which one must approach the interpretation of a statute, would give authority for an interpretation of the language of an Act of Parliament, which would be attended with the most serious consequences.'
(3) Referring to the question of 'casus omissus', the same learned Judge cited the following quotation from Craies in his Statute Law (3rd Edition) page 69 :
'The Judges may not wrest the language of Parliament even to avoid an obvious mischief. When an Act contains special saving of another Act, and omits all allusion to a third Act in 'pari materia', it is safer to presume that the omission is deliberate than that it is due to forgetfulness or made 'per in curiam' (through want of care). Even if the omission flows from forgetfulness, those who claim the benefit of the Act, the reservation of which is omitted, cannot succeed.'
(4) Furthermore, in considering a fiscal matter like the present, it is not permissible to act on mere surmises but to take the strict legal position into consideration. In this connection, it was laid down by their Lordships of the Privy Council in 'BANK OF CHETTINAD LTD. v. COMMR. OF INCOME-TAX, MADRAS', AIR 1940 PC 183 at p. 185 column 1 as follows:
'Their Lordships think it necessary once more to protest against the suggestion that in revenue cases 'the substance of the matter' may be regarded as distinguished from the strict legal position. In 'INLAND REVENUE COMMRS. v. DUKE OF WESTMINSTER', (1936) A. C. 1, disapproval of this doctrine was expressed in the opinions of Lord Tomlin and Lord Russell of Killowen. A passage from the opinion of Lord Russell of Killowen at page 24 may usefully be cited. It is as follows: 'I confess that I view with disfavour the doctrine that in taxation cases the subject is to be taxed if in accordance with a Court's view of what it considers the substance of the transaction, the Court thinks that the case falls within the contemplation or spirit of the statute. The subject is not taxable by inference or by analogy, but only by the plain words of a statute applicable to the facts and circumstances of his case. As Lord Cairns said many years ago in 'PARTINGTON v. ATTORNEY-GENERAL', (1869) 4 H. L. 100 at p. 122. As I understand the principle of all fiscal legislation it is this: 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. On the other hand, if the Crown, seeking to recover the tax, cannot bring the subject within the letter of the law, the subject is free, however apparently within the spirit of the law the case might otherwise appear to be.'
(5) Having regard to the above principles, it must be taken that the omission of the Punjab Acts in the Merged States (Laws) Act, 1949 was deliberate, and that the defendants are entitled to the benefit of that omission. Under Section 5 of this Act, the corresponding provision in the Himachal Pradesh (Application of Laws) Order, 1948, will be deemed to have been repealed and therefore the correct provision of law for determining the question of the court-fee payable on the present appeal, which was filed on 24-8-1951, is the Court-Fees Act as mentioned in the Schedule appended to the Merged States (Laws) Act, 1949. I therefore disagree with the opinion of the Taxing Officer and hold that the court-fee paid by the defendants-appellants is correct.
(6) As already ordered yesterday, this appeal has been admitted for hearing. It was however agreed by the learned counsel for the parties that a preliminary date be fixed for disposal of the office objection with regard to the appeal being time-barred. Let therefore a date be fixed for the disposal of this question of limitation and the learned counsel for the parties be informed of the same.