H MAHOMED ISHACK SAHIB Vs. MAHOMED MOIDEEN

JUDGEMENT

(1.) This matter has been referred to me by the Chief Justice purporting to act under the provisions of Section 5 of the Court Fees Act, VII of 1870. That section runs as follows: "When any difference arises between the Officer whose duty it is to see that any fee is paid under this Chapter and any suitor or attorney as to the necessity of paying a fee or the amount thereof, the question shall be referred to the Taxing Officer whose decision shall be final except when the question is, in his opinion, one of general importance, in which case he shall refer it to the final decision of the Chief Justice or of such Judge as the Chief Justice shall appoint on this behalf" I have given the material words.

(2.) The question arose out of an appeal from a determination of my brother Phillips, J. I need not say more about its nature for my purpose and the contention for the applicant (the would- be appellant) was that the sum payable by him to file his Memorandum of Appeal was Rs. 100 under Art. 36 of Appendix II to the Original Side Rules which draws up a list of Court-fees to be levied by the Registrar, High Court. The contention of the Registrar, was that the proper fee was Rs. 150 on the footing that this was a Memorandum of Appeal on a final Judgment.

(3.) Objection is taken that the supposed jurisdiction under Section 5 of the Court Fees Act does not exist, and that I am not competent to go into this matter. It arises in this way. In the mufassal Courts, ad valorem fees are levied and statutes regulate the amount of fees including this Court Fees Act in question which has a long schedule of ad valorem fees to be paid in various cases. It is conceded that the schedules and subsidiary parts of the other chapters of the Court Fees Act have no application to the High Court in the exercise of its ordinary Civil Jurisdiction. Section 4 cannot apply because that is in terms confined to the extraordinary original Civil Jurisdiction, that is to say, cases transferred by the High Courts suo motu and other cases, Therefore this memorandum of appeal is clearly not within the perview of Section 4. The learned Advocate General says, nor is it within the purview of Section 3 and the way he puts it, as I understand it, is this. He says it is not a fee payable for the time being to the clerks and officers of the High Courts established by Letters Patent by virtue of the power conferred by 24 and 25 Victoria Cap, 104 Section 15. That section is a very long one defining certain powers of the Chartered High Courts and the material portion of it is as follows: "Each of the High Courts established under this Act shall have power to make and issue general rules for regulating the practice and proceedings of such Courts, and also to settle tables of fees to be allowed to the Sheriffs, Attorneys and all clerks and officers of Courts." It is said by the Advocate General that the words of Section 3 of the Court Fees Act must be controlled by reference to Section 15 of the High Courts Charter Act. I entirely agree, and the only question which arises is to what extent the true construction of that Act narrows the apparent scope of the Court Fees Act. It is, I think reasonably clear that that part of Section 15 of the High Court's Charter Act which speaks of settling fees to be allowed to Sheriffs, Attorneys, and all clerks and officers of the Court will not cover this case because, as the Advocate General pointed out, Section 3 of the Court Fees Act clearly points to the fee which is to be taken by the officer as a perquisite, as until recent years we all know they were. Therefore the fee payable for the time being to all clerks and officers of the High Court under Section 3 of the Court Fees Act cannot be covered by those words of the High Courts Charter Act. It has always been maintained that the power under which fees are levied on the Original Side of the High Court was derived from the general powers to issue general rules for regulating the practice and procedure of the Courts. It is argued and I think it is rightly argued, that the power to make regulations for procedure necessarily includes imposition of fees and the collection of them, and the Court can collect the fees only through its proper officers. If that be right, then the fee leviable on an appeal is the fee payable for the time being to the officers of the High Court by virtue of the High Court's Charter Act directly.