USHA Vs. SUDHIR KUMAR SONEJA

JUDGEMENT

(1.) SHRIMATI Usha filed a petition against her husband Sudhir Kumar Suneja for a decree of judicial separation under Section 10 of Hindu Marriage Act during the trial of that petition, she also made an application under Section 24 of the same Act for the grant of monthly maintenance for herself and her child and expenses of litigation. The learned District Judge made an order directing the husband to pay a sum of Rs. 1,000/ - for litigation expenses and Rs. 300/ - per month as maintenance - The husband filed a first appeal in this Court against the order made by the learned District Judge on the application under Section 24 of the Hindu Marriage Act. The appeal came up before Jain J, who partly accepted the same and directed the husband to pay a sum of Rs. 500/ - for litigation expenses and Rs. 200/ - per mensem as maintenance. Thereupon, Shrimati Usha filed a Latter's Patent Appeal against the order of Jain J., for the enhancement of both the amounts. Sudhir Kumar, on the other hand, filed cross -objections asking for reduction in the said amounts awarded by the learned Judge. He paid a fixed Court -fee of Rs 19.50 on the cross -objections The Stamp Reporter objected to the sufficiency of this Court -fee and he asked the husband to pay ad valorem court -fee on the subject -matter in dispute. Since the husband did not agree to do so, a reference was made under Section 5 of the Court Fees Act, 1870, hereinafter called the Act, to the Taxing Officer for the determination of the amount of court -fee chargeable on the cross -objections. By his older dated 7th March, 1970, the Taxing Officer, who is the Registrar of this Court, held that the cross -objections has been insufficiently stamped. He calculated the correct fee leviable on the cross -objections and directed the respondent to make good the deficiency within one month of the date of the communication of his order. As the counsel for the respondent did not put in the necessary court -fee, as directed by the Taxing Officer, the papers have been placed before us by the office for necessary orders.

(2.) WE have heard the counsel for both the parties. Learned counsel for the respondent contended that the order passed by the Taxing Officer regarding court -fee was incorrect in law. Counsel or the appellant, on the other hand, submitted that the order regarding the court -lee made by the Taxing Officer under Section 5 of the Act was final and could not be agitated before us. The question for decision is whether finality attaches to the order regarding the court -fee made by the Taxing Officer under Section 5 of the Act. The relevant part of the said section reads thus.

(3.) APART from the interpretation of the section, there are decided cases which have taken this very view. In a Bench decision of the Bombay High Court in Gangaram Tirlokchand v. The Chief Controlling Revenue Authority, A.I.R. 1927 Bom. 543, it was observed that a decision under Section 5 of the Court Fees Act of the Taxing Officer of the High Court on of the Chief Justice or the Judge appointed under Section 5 was final and was not challengeable either by way of appeal or revision. In this case, reliance was placed inter alia on an earlier Full Bench decision of the Allahabad High Court in Balkagan Raj and Ors. v. Gobind Nath Tiwari, I.L.R. 12 All. 129, and a Bench decision of the Calcutta High Court in in the goods of Bhubanesmar Trigunait : A.I.R. 1925 Cal. 1201, In Balkaram Rai's case, Sir John Eage, Chief Justice, observed -