T S SWAMINATHA AIYAR Vs. MGURUSWAMI MUDALIAR

JUDGEMENT

(1.) The plaintiffs riled a suit in this High Court under Section 92 of the Civil P. C. and presented the plaint bearing a five-rupee stamp. The Taxing Officer has rejected the plaint as insufficiently stamped as in his opinion the plaint should have been stamped with a hundred and fifty rupees stamp as provided for in the High Court-Fees Rules, 1925, Appendix II, which provides that in respect of a plaint or special case under Order 36 of the Code of Civil Procedure where the value of the subject-matter does not exceed Rs. 10,000 a fee of Rs. 150 is to be levied. The plaintiffs contend that this is a suit in respect of which the relief claimed is incapable of valuation and that the Court-fees leviable by reason of the High Court-Fees Rules, 1925, Appendix II cannot be applied to such a case. The learned Advocate-General in support of the Taxing Officer's decision, however, contends firstly, that the decision of the Taxing Officer is final and cannot be called in question here and secondly, that the Taxing Officer is right in having rejected the plaint as insufficiently stamped and that the proper fee payable is Rs. 150. I will deal first with the contention of the learned Advocate-General that the Taxing Officer's decision is final. Section 5 of the Court-Fees Act of 1870 provides that 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, when the difference arises in any of the High Courts, be referred to the Taxing Officer whose decision thereon 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 of such High Court or of such Judge of the High Court as the Chief Justice shall appoint either generally or specially in this behalf.

(2.) Mr. C. Veeraraghava Aiyar argues that Section 5 of the Court-Fees Act of 1870 does not apply to this-case because that section provides for differences which arise as to the fee to be paid under that chapter and admittedly Section 4 of that chapter does not apply to fees to be paid in cases before the High Court in its ordinary original civil jurisdiction and that therefore the decision of the Taxing Officer rejecting the plaint cannot be final and he argues that Rule 542, Sub-rule 2(37)(b) of the Original Side Rules entitles the plaintiff to bring this matter up before a Judge. That rule is as follows: Any party desiring to have any question which has been decided by the Deputy Registrar whether contested or not referred to a Judge may apply to the Court within 8 days of the issuing of the order complained of or within such further period as the Judge for sufficient cause may allow.

(3.) There are, however, many reported cases which clearly lay down that in such a matter as this the decision of the Taxing Officer is final. In the case of In the Goods of Bhubaneswar Trigunait, deceased, Mukteswar Trigunait and Ors. (1925) 29 CWN 879 a Hindu father and his brother and two sons lived together in a joint Mitakshara family. The father died intestate leaving certain money in a bank. The brother and the two sons applied for Letters of Administration with a certificate from the Registrar who as the Taxing Officer under Rule 4 of Chapter XXXV of the Rules and Orders of the Calcutta High Court certified the exemption of the Court-fees as the property was held in trust not beneficially or with general power to confer a beneficial interest. It was held on appeal that the decision of the Taxing Officer under Rule 4 of Chapter XXXV was final by virtue of Section 5 of the Court-Fees Act and could not be reviewed under Section 19(1). It was further held that the jurisdiction of the Taxing Officer does not arise upon a difference of opinion between an office clerk and a suitor and upon some sort of formal reference to decide that dispute. It is enough that the Taxing Officer has brought his mind to bear on the question and has decided it. On page 882 Rankin, J., says as follows: It would appear that in a matter so important as a claim to exemption from probate duty, the ordinary Court clerk or officer whose duty it is to see that Court- fees are paid is not authorised in this Court to allow such claims on his own responsibility and that all such claims are required to be queried and referred to the Taxing Officer. I think this involves that the Taxing Officer's decision is a final decision under, Section 5 and that in this case the learned Judge had no authority to review it under Section 19(1).