BABURAO PANDHARINATH JAHAGIRDAR Vs. BHIKACHAND TULSIRAM MARWADI

JUDGEMENT

(1.) THIS matter has been referred to me by the learned Chief Justice tinder Section 5(2) of the Court -fees Act. Before I mention the points which have got to be dealt with in this reference it is necessary to state very briefly the facts which have led up to it.

(2.) SUIT No. 50 of 1945 was filed in the Court of the Civil. Judge (Senior Division), Nasik, for possession of two fields bearing S. Nos. 90 and 93, and for recovering past and future mesne profits. Appellants were some of the defendants in that suit. Ultimately, a decree for possession was made, as also an order underO. XX, Rule 12, Civil Procedure Code, directing inquiry into past and future mesne profits. Appellants filed their memo. of appeal on June 15, 1959. The appeal was directed only against the decree for possession. The appellants stamped the memo. of appeal on this basis, and there is no doubt that the memo. of appeal has been correctly stamped, if the same is held to be an. appeal against the decree for possession only. The office, however, took the view that the memo. of appeal was not properly stamped. This view appears to have been taken on the ground that the appellants should have preferred an appeal also against that part of the decree which directed an inquiry into past and future mesne profits. When this objection was raised and brought to the notice of Mr. L.P. Pendse, learned advocate for appellants, he distinctly averred that he had not filed and that he did not intend to file any appeal against that part of the decree which had directed an inquiry into past and future mesne profits. Even then the office view was that the memo. of appeal was not properly stamped. It expressed the view that the memo. of appeal -should bear stamps to cover that part of the decree which had directed an inquiry into past and future mesne profits. On this difference arising between the office and Mr. L.P. Pendse, the matter was referred to the Taxing Officer under Section 5 of Court -fees Act, VII of 1870. Thereupon, the Taxing Officer instituted an inquiry into the matter. That inquiry was still pending, when, on August 1, 1959. Act VII of 1870 was repealed by Bombay Court -fees Act XXXVI of 1959. After this latter Act came into operation, the Taxing Officer delivered his judgment on September 24, 1959. The judgment was adverse to the contentions urged by Mr. Pendse. Mr. Pendse was dissatisfied with the judgment, and, therefore, he filed a note, on September 29, 1959, in which he expressed a desire that the matter should be referred to the Court for decision.

(3.) NOW , the first question which has been raised in this reference is whether the revision application is competent under Sub -section (2) of Section 5 of the Bombay Court -fees Act XXXVI of 1959, or whether the order passed by the Taxing Officer is final. This raises a further question as to whether the decision, arrived at by the Taxing Officer is one under Section 5 of the old Court -fees Act VII of 1870, or it is one under Sub -section (2) of Section 5 of the new Court -fees Act XXXVI of 1959. I have no doubt whatsoever that the decision of the Taxing Officer is under the new Act. Under Section 6 of the old Act, it was enacted that No document of any of the kinds on which Court -fees are payable shall be filed, exhibited or recorded in any Court of justice, unless in respect of such document there has been paid a fee of an amount not less than that indicated as the proper fee for such document. Therefore, this section clearly prohibited any document from being filed, exhibited or recorded in any Court of law unless a proper Court -fee stamp was paidthereon. There cannot be any dispute that the memo. of appeal had been neither exhibited nor recorded in this Court. But the question arises as to whether that document was or was not filed in this Court on June 15, 1959. Now, the term 'filed' was construed in the case reported inAmjad Ali v. Muhammad Israil. I.L.R. (1897) All. 11. It was explained therein that the term 'filed' did not mean the same thing as presented. It was explained that that term meant something more than a mere presentation of a document, and that it implied that the plaint or the memorandum of appeal had been put on the file of the Court. The term 'filed' has no reference to any act on the part of the litigant, it has a reference to the act of the Officer of the Court. Therefore, when the officer of the Court forms an opinion that a document is not properly stamped, having regard to the provisions of Section 6, he is prohibited from taking the document on the file of the Court. Thus, on June 15, 1959, when the office came to the conclusion that the memo of appeal was not properly stamped, it refused to take the same on its file, and, consequently, the position today with reference to the memo. of appeal presented by Mr. Pendse is that it is not still on the file of the Court. When the matter was referred to the Taxing Officer, the reference was under Section 5 of the old Act. It is true that, if he had given his decision in this matter before August 1, 1959, i.e. before the new Act came into operation, his decision would have been final. But the fact is that no decision was given by the Taxing Officer before the present Act came into operation. It is quite obvious that, when the old Act became repealed, the Taxing Officer would have ordinarily no jurisdiction to continue the proceedings under the old Act, unless there was a provision to the contrary either in the new Court fees Act, or under the General Clauses Act. The Taxing Officer would cease to have any jurisdiction to deal with the matter under Section 5 of the old Act. Section 49, however, of the new Act makes a specific provision on the subject of the action taken by the Taxing Officer under the old Act. The first proviso deals with this matter, and the relevant part of the proviso states that any action taken under the previous Act, shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provision of this Act. Therefore, by virtue of this proviso, an action which was taken by the office and which was being taken by the Taxing Officer under the old law must be deemed to have been taken under the corresponding provision of the new Act i.e. under Section 5, Sub -section (2) of the new Act. Therefore, the decision which was given by the Taxing Officer on September 24, 1959, was a decision which was given by him under Sub -section (2) of Section 5 of the new Act, and, as such, that decision was revisable under the latter provision. Therefore, in my judgment, the present revision application does lie under the latter provision.