NARAYAN CHANDRA GHOSH Vs. PROBHAMOYEE ROY CHOWDHURY

JUDGEMENT

(1.) What court-fee will be paid on a memorandum of appeal presented after May 3, 1963, when the Court-fees (West Bengal Amendment) Act, 18 of 1963, came into force, though the suit out of which the appeal arises was instituted before such amendment ? That is the question debated in this rule, obtained by the defendant-appellant, Narayan Chandra Ghosh under section 115 of the Procedure Code (5 of 1908).

(2.) Here are the facts. In 1960, Sm. Provamoyee Roy Chowdhury and her two sons, the opposite party before me, raised a suit in the court of a munsiff for recovery of khas possession of the disputed land, admeasuring 63 decimals, after eviction of Narayan Chandra Ghosh, the petitioner here, a mere licensee without licence fee. A suit as this was valued at Rs. 510. On the objection of Narayan qua defendant, presumably following the authority of the Special Bench decision of this court in (1) Sisir Kumar Dutta v. Sushil Kumar Dutta, (1960) 65 CWN 1, the valuation was raised to Rs. 5,100, with the result that the plaint had to be, and was, returned on December 22, 1962, for presentation to the proper court. It was presented in the court of a subordinate judge that very day, and deficit court fees on the basis of enhanced valuation were filed in due course. In the end, a suit as this culminated in a decree against Narayan in June 1964. Narayan appealed. The date of presentation of his appeal is August 14, 1964, when section 7vA, inserted by section 3, subsection 2, of the Court-fees (West Bengal Amendment) Act, 18 of 1963, was very much in force. Clause (b), subclause (ii), thereof provides, in so far as it is material here : In a suit for recovery of possession of immovable property from a licensee, upon revocation of his licence, where no licence fee is payable by the licensee, the amount of fee payable shall be computed, according to the amount at which the relief sought is valued in the plaint subject to the provisions of section 8C. Taking his stand on this, the appellant Narayan would not pay court-fees on Rs. 5,100, the valuation come to in the trial court on his own objection, but on - Rs. 200 under section 7.vA(b) (ii) plus Rs. 100 under section 7(i) though initially he had valued the appeal at Rs. 5,100 (Rs. 5,000 plus Rs. 100). The appellate judge rejected such an approach, verging on a somersault, and rejected the memorandum of appeal too. Hence this rule.

(3.) The fact that section 7vA, clause (b), sub-clause (ii), speaks of a suit and a plaint, whereas what bulks large here is a memorandum of appeal, can by itself, present no insurmountable obstacle. For, section 2 provides, in so far as it is material here : 2. In this Act, unless there is anything repugnant in the subject or context, - (4). "suit" includes an appeal from a decree except in section 8A. Section 8A provides for a statement of particulars of the subject-matter of a suit and the plaintiff's valuation thereof. So, for section 8A, a suit does not include an appeal. In other words, the requisite statement of particulars has not to be filed in an appeal. It has to be filed in every suit, meaning a suit and only a suit, not an appeal.