HASAN MIRZA Vs. SYED BAKAR HASAN

JUDGEMENT

(1.) This is a reference by the taxing officer of this Court to me as taxing Judge and arises out of First Appeal No. 101 of 1941. The stamp reporter first reported through inadvertence that the court-fee paid on the memorandum of appeal was sufficient, and the result was that under Rule 16 in chap. 7 of the Rules of this High Court the Registrar admitted the appeal and ordered notice to issue to the respondent. The stamp reporter I detected his mistake a few days later and had the record sent for. After examining the record he submitted a fresh stamp report under Rule 19 in the same chapter to the effect that the memorandum of appeal should bear a further court-fee of Rs. 2115. This report was contested before the taxing officer on three grounds: (a) that the stamp reporter was functus officio, (b) that he had no right to submit a revised report after the appeal had been admitted by the Registrar, and (e) that the taxing officer had no jurisdiction at this stage to make an order compelling the appellants to make good the deficit. The taxing officer held with reference to the first two of these objections that the stamp reporter had power under Rule 19 to reopen the question of the sufficiency of the court, fees filed so long as the appeal remained pending, as was decided by the taxing Judge (James J.) in Sideshwari Prasad V/s. Ram Kumari Rai A.I.R. 1933 Pat. 234. As regards the third objection raised by the appellants the taxing officer came to the conclusion that in view of Section 28, Court-fees Act, this was a matter not for him but for the taxing Judge to decide.

(2.) The learned advocate for the appellants began before me by urging that the respondents have no locus standi in this matter and should not be heard. This contention was rested on the observation in such cases as Baijnath Prasad Singh v Umeshwar Singh A.I.R. 1937 Pat. 550 and Ramkhelawan Sahu V/s. Surendra Sahi A.I.R. 1938 Pat. 22, that the question of the court-fee payable is a question not between the parties but between the Crown and the plaintiff. The observation was, however, not meant to deny the opposing party any locus standi altogether, and it does not appear that the opposing party was in fact not heard in the eases referred to. The opposing party is actually interested in a matter of this kind in more than one way, though provisions like Section 12, Court-fees Act (making a decision of the Court as regards valuation for the purpose of determining the amount of any court-fee final as between the parties) and Section 11, Suits Valuation Act (imposing several restrictions on raising the question of jurisdiction) serve to indicate how this party is not entitled to pursue his interest in the matter of court-fees as freely as in ordinary issues between the parties. In Chunni Lal v. Sheo Charan Lal A.I.R. 725 All. 787, it was held that the plaintiffs respondents were entitled at the hearing of an appeal by the High Court to raise the objection that the appeal had not been properly valued, the reason given being that the valuation affects not only the jurisdiction of the Court but also the amount of costs and legal fees which would be taxable. In a ease where there has been a reference to the taxing officer or the taxing Judge the question of insufficiency of the court-fees as paid on the memorandum of appeal cannot be raised again at the time of the hearing of the appeal, for Section 5, Court-fees Act, would clearly be a bar to any such reconsideration. But where no reference under Section 5 has been made at all, the Court which hears the appeal must decide it.

(3.) It must, therefore, be held that the (defendants) respondents have a right to be heard in this matter. This view does not in any way conflict with the view taken in F.A. No. 98 of 19346 (decided by a Bench of three Judges of this Court on 2nd March 1986), to which the learned advocate for the appellants has referred. What was held in that case was that a decision of the taxing officer under Section 5, Court-fees Act, was binding notwithstanding the fact that it was arrived at without giving an opportunity to a respondent who desired to raise the point at the hearing of the appeal. In that case the taxing officer had functioned under Section 5, Court-fees Act, before the admission of the appeal, and therefore, in the absence of the respondents. In the present case the question has arisen after the admission of the appeal and after the appearance of the respondents, and though the question is one of court-fees, and is thus primarily one between the appellants and the Crown, it cannot properly be said that it does not affect the respondents at all and that they cannot be heard. The learned advocate next urged that Section 5, Court-fees Act, can have no application after an appeal has been admitted that the decision of the taxing Judge in Sideshwari Prasad V/s. Ram Kumari Rai A.I.R. 1933 Pat. 234 was really based on a concession by the appellant regarding the applicability of the Section after the admission of the appeal, and that as the appeal has been admitted, the question of the court-fees can only be dealt with under Section 28, Court-fees Act, by a Judge of the Court, and not by the Taxing Officer (or at his instance by the Taxing Judge) under Section 5. Now, it was actually contended in Sideshwari Prasad V/s. Ram Kumari Rai A.I.R. 1933 Pat. 234 that: When the Stamp Reporter has once accepted an appeal as properly stamped and when it has been admitted and registered, the Stamp Reporter should be treated as functus officio, and he should not be % regarded as entitled to re-open the question of sufficiency of the court- fee.