DIWAN BROS Vs. CENTRAL BANK OF INDIA BOMBAY

JUDGEMENT

(1.) THIS is an appeal by special leave against the judgment of the Single Judge of the Allahabad High Court deciding a court fee matter in connection with the memorandum of appeal filed by the appellants before the Allahabad High Court against a decree passed by the Tribunal appointed under the Displaced Persons (Debts Adjustment) Act, 1951 - hereinafter referred to as 'the Act'. The appellants had filed an application under Section 13 of the Act before the Tribunal alleging that it was a partnership firm and claimed that an amount of Rs. 3,50,000.00 by way of refund of security deposits and a sum of Rs. 55,000.00 as commission was due from the respondents. The application was tried by the Tribunal and the claim preferred by the appellants was ultimately dismissed by the Tribunal by its decree dated 19/05/1965. Additional Civil Judge of Badaun was assigned as the Tribunal under the aforesaid Act. The appellants then filed an appeal before the Allahabad High Court with a nominal court fee of Rs. 5.00 but the Stamp Reporter of the High Court was of the opinion that the appellants should have paid ad valorem court fees on the total claim preferred by the appellants before the Tribunal which had been disallowed. The matter was taken up by the Taxing Officer, who, in view of the substantial importance of the point raised, made a reference to the Taxing Judge for deciding the court fee payable on the memorandum of appeal in the instant case. The plea of the appellants was that as the decision of the Tribunal did not amount to a decree as contemplated by Section 2 (2) of the Code of Civil Procedure, 1908, ad valorem court fees were not payable and the appellants were entitled to pay court fees as prescribed in Sch. II Art. 11 of the Court-fees Act. The stand taken by the revenue was that as the present appeal was against a decree, the case of the appellants squarely feel within the ambit of Section 4 of the Court-fees Act and therefore ad valorem court-fees were payable under Sch. I Art. 1 of the Court-fees Act. The matter was taken up by the Taxing Judge who went into the question of law raised before him and after considering some authorities, particularly those of the Allahabad High Court, agreed with the Stamp Reporter and came to the conclusion that the appellants should pay ad valorem court-fees under Sch. I Art. 1 of the Court-fees Act. The Taxing Judge accordingly by his order dated 11/10/1966 directed the appellants to make up the deficiency in the payment of the court-fees. It was against this order that the appellants filed a petition for special leave to this Court which having been granted the appeal has now been placed before us for hearing.

(2.) THIS appeal involves a short but substantial question of law as to the interpretation, scope and ambit of Sch. II Art. 11 of the Court-fees Act as applicable to appeals preferred against the orders or decrees passed by the Tribunal constituted under the Act. The point is not free from difficulty and there appears to be a serious divergence of judicial opinion on the question as to whether in appeals like the present, Sch. I Art. 1 or Sch. II Art. 11 of the Court-fees Act would apply.

(3.) IN order to understand the contentions raised by the counsel for the parties it may be necessary for us to trace the history of the Act and the circumstances in which it was passed. To begin with, following the partition of the country there was an unprecedented rush of refugees from Pakistan to INdia and our country immediately after becoming independent had to face the colossal problem of rehabilitating the refugees or the displaced persons. Most of these persons had left huge assets behind in Pakistan and had come to this country without a penny. Others were creditors and were entitled to get their debts liquidated from the assets in this country or from the properties possessed by the Banks in this country. Soon after independence there were stray and piecemeal legislations providing for some facilities for displaced debtors and creditors but there was no uniform law to cater to their growing needs in view of the situation faced by them following the partition of our country. IN these circumstances, therefore, the Government decided to bring out a uniform legislation so as to be a complete code in itself providing for a cheap and expeditious remedy for displaced debtors and creditors. The matter was first entrusted to a Committee and then to Bind Basni Prasad, a retired Judge of the Allahabad High Court, who after taking evidence of a large number of displaced persons and examining the nature of the claims, submitted a report which formed the basis of the Displaced Persons (Debts Adjustment) Act. INtroducing the Bill which preceded the Act. Mr. A. P. Jain, the then Minster of State for Rehabilitation, made a long speech in Parliament dwelling on the various aspects of the Bill. The Minister particularly highlighted the fact that the condition of the displaced persons was pitiable as they had left huge assets behind in Pakistan. IN this connection the Minister observed thus: