SM CHARUSILA DASI Vs. GOVTPLEADER

JUDGEMENT

(1.) This rule is directed against an order passed by the learned Special Judge of Birbhum directing the petitioner to pay process fees for notices on respondents in certain appeals before the Special Judge according to the scale laid down in the High Court rules framed under Section 20, Court-fees Act. It appears that the petitioner filed in the Court of the Special Judge a number of appeals against the decision of an Assistant Settlement Officer. The contention on behalf of the petitioner before me has been that the learned Special Judge was wrong in ordering payment of process fees according to the scale as laid down in the High Court rules and it was urged that process fees for the issue of notices on. respondents which the petitioner could legitimately be directed to pay ought to have been according to the scale provided for in Rule 65, Ch. 8 of the rules framed by the Local Government under the Bengal Tenancy Act. The question that would first of all arise for determination in the present rule is whether Rule 65 of the rules framed by Government under the Bengal Tenancy Act, would be applicable to the present case. I am inclined to hold that it would not. In the first place, it is to be observed that these rules are framed by Government under the provisions of Section 189, Ben. Ten. Act. Section 189 enumerates a number of matters for the regulation of which the Local Government may make rules and one of these matters is the amount of fees to be realized for issue of certain processes. A notice on a respondent in an appeal finds no place whatsoever in the list of these processes which are enumerated in Section 189, Sub-section 5 (c). The learned advocate for the petitioner in this connexion drew my attention to Sub-section (q) under Section 189 (5). Sub-section (q) deals with " any other matter required or permitted under this Act to be prescribed."

(2.) But the issue of a notice on a respondent in an appeal filed before a Special Judge cannot, in my judgment, be said to be any matter " required or permitted under the Bengal Tenancy Act to be prescribed." Then Rule 65 of these Government rules clearly provides for the service of notices under the Bengal Tenancy Act and a notice that is to be issued on a respondent in an appeal cannot by any stretch of imagination be said to be a notice under the Bengal Tenancy Act. The learned advocate for the petitioner contended that if we would exclude a notice on a respondent in an appeal before a Special Judge from the purview of Rule 65 of the rules it would be difficult to conceive of any other notice to which Rule 65 would be applicable. I am afraid I cannot agree with the learned advocate on this point. There are many instances of notices issued under the Bengal Tenancy Act, which cannot be said to be notices issued by a revenue or a civil Court and among these instances I may mention a notice under Section 46 of the Act. I would, therefore hold that Rule 65 of the rules framed by the Bengal Government under Section 189, Ben. Ten. Act, has no application to notices on respondents in appeals filed in the Court of a Special Judge.

(3.) If Rule 65 does not apply to a notice on a respondent in an appeal filed in the Court of a Special Judge the process fees that would have to be paid by the petitioner would be according to the scale as laid down in the High Court rules framed under Section 20, Court- fee3 Act. The learned advocate for the petitioner first of all contended that the Court of a Special Judge is neither a revenue Court nor a civil Court and his argument was that that being so the High Court rules framed under Section 20, Court-fees Act, would not apply. In support of his argument that the Court of a Special Judge is not a civil Court Mr. Bose contended that a Special Judge finds no mention in the Bengal, N. W. P., and Assam Civil Courts Act (Act 12 of 1887) in which the Courts that are mentioned are the Court of District Judge, Additional District Judge, Subordinate Judge and Munsiff, But it is to be observed that a civil Court is not a creation of this Act 12 of 1887. The civil Courts that were mentioned in Act 12 of 1887 were the civil Courts to which the provisions of that Act ware made applicable. The contention therefore that the Court of a Special Judge is not a civil Court on the ground that it finds no mention in Act 12 of 1887 is not, in my opinion, of any avail to the petitioner. On the other hand there are some provisions in the Bengal Tenancy Act, which to my mind clearly indicate that the Court of a Special Judge is a civil Court. Section 109, Ben. Ten. Act, lays down that subject to the provisions of Section 115 (c) a civil Court shall not entertain any application or suit concerning any matter which is or has already been the subject of an application made, suit instituted or proceedings taken under Secs.105 to 108 (both inclusive) and Section 115 (c) is the section where provisions have been made for the hearing by a Special Judge of appeals from the decisions of Revenue Officers under Secs.105 to 108 (both inclusive).