GAJENDRA NATH SAHA CHOWDHURY Vs. SULOCHANA CHAUDHURANI

JUDGEMENT

(1.) The question which we have to decide in the present case comes before us under Section 12, Court-fees Act. It appears that an appeal has been preferred by the plaintiff in a suit for restitution of conjugal rights to which is added a prayer for injunction restraining the parents and other relations of the wife from obstructing the recovery of the wife by the husband. The suit was valued at Rs. 5,001 in the Court below and a fixed fee of Rs. 15 was paid on the same and the prayer for injunction was valued at Rs. 25 and court-fees paid on the same. The suit was dismissed by the Court below and appeal has been taken to this Court by the plaintiff.

(2.) On the Stamp Reporter reporting that the court-fees on the memorandum of appeal was insufficient the matter was dealt with by the Registrar who is taxing officer under Section 5, Court-fees Act and he has held that the court-fees are insufficient and that ad valorem court- fees on Rs. 5,001 should be paid and that the appellant should pay the deficit both on the memorandum of appeal and on the plaint before the appeal can be further proceeded with. His decision so far as the court-fees on the memorandum of appeal is concerned is final under Section 5 of the Act and the appellant says that he is willing to pay the deficit so long as the order of the learned Registrar stands. But as stated above the Registrar has also directed the appellant to put in the deficit which would be due from the appellant on the ad valorem scale as fees payable on the plaint in the lower Court. With reference to this order about deficit court-fees in the trial Court, the interference of this Court is sought under the provisions of Section 12, Court-fees Act. At the outset I had some doubt in my mind if Section 12 could apply to such a case seeing that it would lead to anomalous results. On the one hand, the Registrar's decision regarding court-fees on the memorandum of appeal would be final whereas if the Court did not agree with the Registrar a different result would be reached with reference to the court-fees payable on the plaint in the suit in which the appeal has arisen. But, having regard to the wide language of Section 12, Court-fees Act, it seems that we can determine the matter, notwithstanding the anomaly. It is for the legislature to cure it. We must administer the law as we find it. Section 12, in my opinion, makes the decision of the first Court as to value final as between the parties and enables a Court of appeal to correct any error as to this only when the first Court decided to the detriment of public revenue.

(3.) The question we have to decide is whether a fixed fee is payable or an advalorem fee. The three cases on which the learned advocate for the appellant has relied are Golam Rahaman, v. Fatima Bibi (1886) 18 Cal 232, Mowla Newaz V/s. Sajidunissa Bibi (1891) 18 Cal 378, Aisha Bibi V/s. Faiyaz Husain (1911) 33 All 767. These cases seem to suggest that in a suit for restitution of conjugal rights pure and simple a fixed fee is payable. When these cases were decided under Art. 15, Schedule 2 a fixed fee of Rs. 5 was payable; when the case of Jan Mahomed Mandal V/s. Mashar Bibi (1907) 84 Cal 352 was decided Art. 15, Schedule 2 was on the statute book, but it was repealed by Act 5 of 1908: see Schedule 5 to the Act of 1908. The following, passage from the judgment of that case would show that a fixed fee is payable in a suit for restitution of conjugal rights; Mitra and Caspersz, JJ., observe this: For fiscal purposes, the court-fee is a fixed sum under the Court-fees Act irrespective of valuation for the purposes of jurisdiction, and the jurisdiction was determined by the value put by the plaintiff.