S L LAKSHMANA AIYAR Vs. TSPLPPALANIAPPA CHETTIAR

JUDGEMENT

(1.) The plaintiff attacks the order of the lower Court directing him to pay in respect of his plaint a court-fee of Rs. 2,220, in addition to what has been already paid by him, namely, Rs. 712-7-0. It is unnecessary to consider whether the learned District Judge's view as regards the amount payable is correct, as in my opinion the question of court-fee, so far as the lower Court is concerned, was concluded by certain previous orders which, whether right or wrong, the learned Judge was not competent to revise. The plaint was filed with a court-fee of Rs. 712-7-0 and the officer entrusted with the duty of checking the stamp, raised the objection that in a creditor's suit for administration (that was the nature of the action) the court-fee was payable on the amount due to the plaintiff. But the latter contended that his suit was essentially one for accounts and that his own valuation determined the court-fee. The case was then pending in the sub-Court and on the matter being placed before the Subordinate Judge, he gave a ruling upholding the plaintiff's view. Whether his decision is correct or not, the order he made on that occasion shows that it was a considered order; he heard the plaintiff's advocate, referred to the authorities quoted by him and upheld his contention. This order was made on the 15 February, 1932. Sometime later, the plaintiff made certain interlocutory applications and while resisting them, the defence raised the objection that the suit itself was not maintainable, the proper court-fee not having been paid. The Judge then referred to his previous order, repeated his reasons and on the 11 August, 1932, again held that the court-fee paid was proper. On the 6 September, 1932, issues were framed in the case and the third issue raised the question of the sufficiency of the court-fee. Subsequently the suit seems to have gone to the District Court by way of transfer and the then District Judge on the 31 January, 1934, disposed of the issue as to the court-fee by the following order: The question of court-fee has been judicially considered by the learned Subordinate Judge who has written a fairly long order on it. I do not think that I can interfere with it. I have very grave doubts whether I can claim jurisdiction in the matter. I must therefore accept the Subordinate Judge's view for the present.

(2.) The order against which the Civil Revision Petition is directed, was made in October, 1934, at the instance of a Court-fee Examiner, by the successor of the District Judge to whom I have just referred. No special efficacy attaches to the order in question, merely because the Court- fee Examiner took the initiative, his function being no more than to draw the attention of the Court, in the interests of the revenue, to any leakage or deficiency in stamps. The learned Judge justifies his order by saying: The Court has jurisdiction to find upon the sufficiency of the court-fee at any time during the trial of the suit prior to passing a decree.

(3.) I have said that three previous orders had already been made upholding the plaintiff's contention as regards the proper court-fee payable. In strict law, even if the matter had not gone beyond the stage of the first order, the lower Court's power to revise the valuation would have come to an end. There is nothing in the Court-Fees Act which requires that the question as to the sufficiency of the court-fee should be decided in the presence of the defendant or after notice to the Government. Section 5 of the Act lays down the procedure in the case of a difference arising as to the court-fee between the suitor and the officer, whose duty is to check the court-fee paid. That section applies to the High Courts and to the Small Cause Courts at the Presidency Towns. In the High Court when such difference arises, the question shall be referred to the Taxing Officer, whose decision shall be final, except when the question has been referred by himself to the final decision of the Chief Justice or a Judge of that Court. A similar provision is enacted in the case of the Small Cause Courts and the decision given is there likewise final. The importance of the section for the present purpose lies in the fact, that the decision referred to in it is invested with the character of finality. Section 12 is a parallel provision laying down the procedure as regards the Courts other than those already mentioned. That enacts that every question relating to valuation shall be decided by the Court and its decision shall be final as between the parties to the suit, subject, however, to the qualification in Clause (2) that a higher court-fee may be levied by a Court of appeal, reference or revision, if in its opinion the question was wrongly decided by the lower Court "to the detriment of the revenue". The principle of finality applies therefore as much to decisions on questions of court-fee as to decisions on other matters. The Court, while making an order under Section 12, must apply its mind to the question and give a considered decision. It is said that some judges rarely bestow at that stage the attention the question deserves and are content to endorse the office note; such practice, if it exists, is opposed to the plain intention of the Act and must be condemned. The question in each case is, whether the order is one intended to be final or merely provisional. Under the prevailing usage, the Court fully goes into the question relating to the court-fee, only upon an objection taken in the written statement by the defendant; but, as the Judicial Committee points out in Rachappa Subrao Jadhav v. Shidappa Venkatrao Jadhav (1918) L.R. 46 I.A. 24 : I.L.R. 43 Bom. 507 : 36 M.L.J. 437 (P.C.) the Court-Fees Act was passed snot to arm a litigant with a weapon of technicality against his opponent, and from that view it follows, that although in actual practice a defendant is permitted to object that the proper court-fee has not been paid, he has, strictly speaking, no legal right to raise such a plea, but his function must be deemed to be, subject to the Court's leave, merely to assist it in coming to a proper decision. In Muhammad Ellaiyas V/s. Rahima Bee (1928) 56 M.L.J. 302 the right of a defendant to present a revision petition to the High Court, complaining against an order as regards the court-fee payable, has been negatived, the ground of the decision being, Where an order in regard to court-fee happens to be in favour of the plaintiff, it does not mean that it is against the defendant, though it may operate to the detriment of the revenue.