LIPIKA GUPTA Vs. STATE OF BIHAR

JUDGEMENT

(1.) This writ petition is directed against the decision dated 26-4-99 by the Registrar General of this Court as Taxing Officer in Misc. Appeal No. 367 of 1998 holding that the Court fee paid by the petitioner on the memo of appeal to be insufficient and directing her to pay the deficit court fee.

(2.) The facts of the case, so far as relevant for decision of the case, are as follows : The petitioner instituted matrimonial case No. 48 of 1980 against her husband for restitution of conjugal rights and other matrimonial rights which was dismissed. The dismissal, it is said, was not on merit. The petitioner had filed petition for time which was rejected and the case was dismissed for default. The petitioner came to this Court in First Appeal No. 99 of 1998 which was converted into Miscellaneous appeal namely, M.A. No. 367 of 1998. The petitioner had paid Court fee of Rs. 22.55 on the memo of appeal which as per the Stamp Report was short by Rs. 6.70. After the first appeal was converted into miscellaneous appeal, a fresh stamp report was made and by report dated 3-4-99, the court fee was said to be short by Rs. 227.50. It may be mentioned here that as per the provisions of the Court Fees (Bihar Amendment) Act, 1995, court fee of Rs. 250 is payable on miscellaneous appeal and it is on that basis that deficiency of Rs. 227.50 was pointed out. The petitioner contested the stamp report contending that as the matrimonial case giving rise to the appeal was filed prior to the coming into force of the Court Fees (Bihar Amendment) Act, 1995, she was required to pay court fee payable prior to the amendment as on the date of the institution of the suit. The plea did not find favour with the Taxing Officer i.e. the Registrar General and in the circumstances the petitioner has invoked the writ jurisdiction challenging his decision.

(3.) Shri Kalyan Kumar Ghose, learned counsel for the petitioner, submitted that the impugned decision is contrary to the law laid down by the Apex Court as well as this Court. He contended that appeal is a vested right and where its entertainment is subject to payment of Court fee, any increase in the amount of court fee should be construed as imposing additional restriction on the exercise of the right and therefore, unless the amended provisions are made retrospective, the petitioner cannot be compelled to pay additional Court fee. In support of the plea he placed reliance on Messers Ganpat Rai Hiralal v. Aggarwal Chamber of Commerce, AIR 1952 SC 409, Messers Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh, AIR 1953 SC 221 and State of Bombay v. M/s. Supreme General Films Exchange Ltd. AIR 1960 SC 980. He also relied on an order passed by a Division Bench of this Court in First Appeal No. 84 of 1975 and pointed out that following the said order, in first appeals this Court has been charging court fee on the basis of the date of institution of the suit but in miscellaneous appeals, civil revisions etc. the court fee is being demanded on the basis of the date of filing of the miscellaneous appeal, civil revision, as the case may be, which is not correct.