HARIBANSHA SINGH DEO Vs. SUDHANSHU SEKHAR SINGH DEO

JUDGEMENT

(1.) THESE matters come up before me as the Taxing Judge as a result of the decision of the Bench in these appeals that it has no jurisdiction to deal with the matter. Acting on the suggestion made in the order of the Bench and with a view to avoid any further delay in this long pending matter, I propose to treat the reference by the Registrar as a reference by the Taxing Officer to me, the Registrar himself being under the rules of this Court, also the Taxing Officer. These four appeals arise out of three suits which along with four other suits were filed in the Court of the Subordinate Judge of Sambalpur by various rival claimants to the Barpalli Zamindary which were all tried analogously and were disposed of by a common judgment of the Subordinate Judge. Appeal No. 45 is by the plaintiff in T. S. No. 11/49. Appeal No. 48 is by the plaintiff in T. S. No. 8/39. Both these suits were filed as mere declaratory suits and court -fee on the two appeals therefrom was filed on the footing of mere declaration. Appeals Nos. 46 and 47 are against the decree in T. S. No. 10/39 by two of the defendants therein who are respectively the plaintiffs in T. S. Nos. 11 and 8 of 1939. T. S. No. 10 of 39 was filed as a suit for declaration and possession and treating this as a prayer for declaration and consequential relief, ad valorem court -fee was paid in the trial Court on the plaint in that suit. When it came to a question of appeal against it in this Court, the appellant in F. A. No. 46 paid the ad valorem court -fee while the appellant in F. A. No. 47, treating the prayer for possession in the Plaint in O. S. 10 of 39 as mere surplusage, in the circumstances to be set out later, paid on his appeal memorandum only the declaratory Court -fee.

(2.) THE court -fee originally paid on the appeal memoranda in F. A. Nos. 45, 46 and 48 was considered as sufficient by the Stamp Reporter and on his reports the three appeals were admitted by the Registrar by his order dated 8 -3 -49. In Appeal No. 47 however, the Stamp Reporter noticing the fact that on the plaint in the suit out of which that appeal arose ad valorem court -fee was paid, was of the opinion that in the appeal also ad valorem court -fee was payable and not merely a declaratory court -fee, which was all that was paid by the appellant. He accordingly placed the matter before the Registrar for orders. When the matter came up before the Registrar on 9 -5 -49, he directed that it should be posted before him along with F. A. Nos. 45, 46 and 48 relating to the matter of court -fees (though he had already admitted those three by his prior order dated 8 -3 -49). As appears from his subsequent orders he adopted this course presumably because he had the impression that the valuation of the suit -property given in all these four appeals was abnormally low. It may be mentioned that in the trial Court, the valuation of the suit -property for purposes of jurisdiction and court -fee was fixed at Rs. 25,000/ - by the learned Subordinate Judge by his order in T. S. No. 19 of 39 which is one of the batch of suits. That valuation has been adopted for all the suits. The appellants in these four appeals have also adopted that valuation for their appeal memoranda. It may also be noticed that in the trial Court, the actual valuation did not matter so far as the suits in which only a declaratory relief was prayed for, but even in the appeals against those suits, the correct valuation is of some consequence since by virtue of the Orissa Court -fees Act, V (5) of 1939 which came into force subsequent to the institution of the suits, a court -fee is payable in respect of declaratory relief, dependant on valuation and based on the slab system. In view of the fresh importance which the valuation of the suit -property has thus acquired, the Taxing Officer called upon the appellants in the four appeals by his order dated 10 -9 -1949 to furnish statements showing (a) market value of the property in dispute; (b) annual net profits thereof in the year next preceding the institution of the suit. These statements not having been filed within the time granted by the Registrar, all the four appeals were placed before the Bench for orders. The statements were filed on 23 -11 -49 and a Bench of this Court by its order dated 28 -11 -49, in all these four appeals, remitted the matter back to the office directing the office to ascertain the market value on the basis of those statements. The appeals thereupon went back to the Stamp Reporter who on 29 -11 -1949 made a report that the value of the suit property is Rs. 48,000/ -, calculating the same at eight times the net annual profits of Rs. 6,000/ - as shown by the statements filed on 23 -11 -49 and that court -fee in all the appeals was payable on the basis of the revised valuation. The matter came up again before the Registrar, who while accepting the statements filed, relating to the net annual profits did not accept the valuation reported by the Stamp Reporter. He was of the view that both the valuation of Rs. 25,000/ - as originally fixed by the trial Court as also the valuation of Rs. 48,000/ - reported by the Stamp Reporter were low. He therefore fixed the valuation at Rs. 1,20,000/ - being twenty times the net profits. He was of the opinion that the court -fee in all the four appeals has had to be paid on the basis of that valuation. He was further of the opinion that in respect of Appeal No. 47, the appellant was not entitled to treat the appeal as involving only a declaratory relief but should ask both declaration and possession and pay ad valorem court -fee on the value as fixed by him. It is in these circumstances that the matter comes to me for a decision on the question of the court -fee payable.

(3.) IT would appear from R. 14, Chap. VII of the Rules of this High Court that the Stamp Reporter is an officer charged with the duty of examining whether the court -fee on the appeal memorandum is sufficient, and it appears to be arguable that the Taxing Officers jurisdiction arises only when there is a difference between the Stamp Reporter and the party concerned as to the proper court -fee payable. In Bhubaneswar Trigunait, In the goods of, AIR (12) 1925 Cal 1201: (52 Cal 871), Rankin J. seems to have been of the view that such a difference between the Stamp Reporter and the litigant is not necessary in order to give Jurisdiction to the Taxing Officer. His Lordship was of the opinion that "the jurisdiction of the Taxing Officer does not arise like the jurisdiction of an arbitrator upon the difference between a Court clerk and a suitor and on some sort of formal reference to decide that dispute and that the intention of S. 5 is merely to ensure that the question should be raised before the Taxing Officer and that he should bring his mind to bear on it and decide it." See contra per Jwala Prasad J., Krishna Mohan v. Raghunandan Pandey, AIR (12) 1925 Pat, 392 at 402: (4 Pat 336 FB). It is unnecessary for me to express any final opinion on this matter because the Taxing Officer in this case is the Registrar of the Court and there can be no doubt that the Registrar as the Head of the High Court Office by virtue of S. 28, Court -fees Act has the power to collect the proper court -fee in respect of an appeal memorandum which through mistake or inadvertence has been filed already and accepted as having been sufficiently stamped. Once the matter has been reopened by the Registrar under S. 28, the question very properly goes back to the Stamp Reporter and comes up again to him as the Taxing Officer and thence to the Taxing Judge on a proper reference. Further in the present case, it is the Stamp Reporter that has in fact reopened the valuation under orders of Court dated 28 -11 -49. The Stamp Reporter has been vested with the power to reopen the valuation under R. 18 of Chap. VII of the High Court Rules which apparently is auxiliary to the power vested in the Court under S. 28, Court -fees Act.