LAL BEHARI SINGH AND ANOTHER Vs. DY. DIRECTOR OF CONSOLIDATION, UP LUCKNOW IN CAMP AT FAIZABAD AND OTHERS

JUDGEMENT

(1.) There writ petitions were dismissed in liming by a Division Bench of this Court giving rise to three review applications. Each review application was filed on a Court fee of Rs. 5/ - u/Sch. II, Art. 1(e)(5) of the Court Fees Act, as amended in its application to UP. There was some controversy whether the Court fee was sufficient. Thereupon, the matter was referred to the Taxing Officer who wrote a long, well considered order and he was of the view that if proceedings arising out of an application u/Art. 226 of the Constitution were of a civil nature then the provisions of Sec. 141 of the CPC would be attracted and Court fee would be payable u/Art. 4 or 5, as the case may be, of Sch. I of the Court Fees Act. He, however, referred the matter for adjudication to the Taxing Judge. The latter also concentrated his attention on the question whether the proceedings arising out of a petition u/Art. 226 of the Constitution were of a civil nature and he was of the view that the matter had been set at rest, so far as this Court was concerned, by a Full Bench decision of this Court in Mall Singh v/s. Smt. Laksha Kumari Khaitan (1968 ALJ 210). In that case it was held that the proceedings arising out of an application u/Art. 226 of the Constitution were of a civil nature and the provisions of O. 1, R. 1 of the CPC would be applicable to such petitions. The learned Taxing Judge, however, thought that the matter was of some importance, and he referred it for decision to a Division Bench and that is how this matter has been laid before us. It appears to us that it is not at all necessary to enter into the controversy whether the proceedings arising out of a petition u/Art. 226 of the Constitution are of a civil nature or not. The Full Bench decision, therefore, mentioned above, cannot be of any assistance. We have got to interpret the exact words used by Arts. 4 and 5 of Sch. I and Art. 1 of Sch. II of the Court Fees Act, which reads as follows: - -

(2.) At first, we were inclined to attach great importance to the word "judgment" in Arts. 4 and 5 of Sch. I. It was however, pointed out to us that that word alone does not fall for interpretation. The other words upon which emphasis was laid by the learned counsel for the applicants are "decree" and "plaint" and "memorandum of appeal". It is obvious that the meaning to be given to these words would be the meaning that is given to them in the CPC. According to the CPC a 'plaint' has to fulfill the requirements of O. VII. Ch. XXII of the Rules of the Court, on the other hand, provides that proceedings u/Art. 226 of the Constitution shall be initiated by means of an "application." What the contents of such an application should be are mentioned in Ch. XXII. They are quite different from the contents of a "plaint" as required by O. VII of the CPC. "Decree" is defined in Sec. 2(2) of the CPC. O. XX, R. 6 of the CPC prescribed the contents of a decree. A decree is appealable, according to the nature of the case, either u/S. 96 or u/S. 100 of the CPC. Orders are appealable u/S. 104 and O. XLIII of the CPC. It is obvious that judgments in civil suits and appeals are followed by decrees. A judgment in a writ petition is not followed by a decree but by a formal order. It is, therefore, very difficult to accept the contention of the learned Standing Counsel that the formal order which follows the judgment in a writ petition must be deemed to be a decree. We should also like to emphasise the fact that the Court Fees Act is a fiscal statute and, therefore, it must be construed strictly and if such a construction is put upon the provisions of the Court Fees Act, no decision can be given against the subject by the process of "deeming." We are, therefore, of the view that the Court fee on review applications arising out of writ petitions is payable u/Sch. II, Art. 1(e)(5) of the Court Fees Act as amended in its application to UP.