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Case Number

Appeal from Original Decree No. 223 of 1937, preferred on the 3rd July, 1937, against the decree of the Subordinate Judge, 1st Court of Zillah Chittagong (U.C Majumdar Esq.), dated the 8th April, 1937

Attorney(S)

Krishna Kamal Moitra and Rohinibinod Rakshit for the Appellant.
Ramaprasad Mukherjee, Narendm Kumar Das and Durgesh Prosad Das for the Respondents.

Judges

Mitter
Roxburgh, JJ.

Acts

Art. 5, Sch. II of the Court Fees Act nor sec. 7, sub-sec. (xi) of the same Act
provisions of sec. 7, sub-sec. (iv), ch (c) of the Court Fees Act.
provisions of sec. 8B(3) of the Court Fees Act
sec. 7, sub-sec. (iv), cl. (c) of the Court Fees Act.
Art. 5 of Sch. II of the Court Fees Act
(1) of sec. 12 of the Court Fees Act.
sec. 7(iv)(c) of the Court Fees Act.
sec. 12 by Bengal Act VII of 1935
sec. 8(c) of the Court Fees Act
sec. 12 of the Court Fees Act
COURT FEES ACT

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The Plaintiff (before this Court the Appellant) appealed against an order of the learned Subordinate Judge dated 8 April 1937 rejecting her plaint for non-payment of deficit court-fees of Rs. 1,980. The plaintiff had originally valued the suit at Rs. 2,100 for jurisdiction and court-fee purposes and paid ad valorem fee on that amount at the time of presentation. After registration of the plaint the Defendants entered appearance and raised the question of sufficiency of the court-fees paid.

The Subordinate Judge required security for additional court-fees that might be payable and initiated an enquiry under section 8C of the Court Fees Act. A Commissioner was appointed; after his report and further evidence the Subordinate Judge found net profits of the property were Rs. 4,000 per year, capitalized that amount, and fixed the value of the property at Rs. 60,000. The Plaintiff first argued applicability of Article 5 of Schedule II of the Court Fees Act (claiming a 12 annas 12 stamp would be sufficient) and alternatively argued for computation under clause 11 of section 7 if Article 5 did not apply. The Subordinate Judge overruled both points, held the suit came within section 7, sub-section (iv), clause (c) of the Court Fees Act, treated the plaint valuation of Rs. 2,100 as arbitrary, and adopted Rs. 60,000 as the value for fee computation.

On 30 January 1937 the Subordinate Judge assessed the fee payable on the plaint at Rs. 2,175, applied the Rs. 195 already paid, and demanded the deficit Rs. 1,980. Time was given initially to 6 February, then by order dated 6 February extended to 20 February 1937; an application to amend the plaint (filed 6 February) was refused. On 20 February the Plaintiff applied to continue the suit as a pauper; that application remained pending and was fully considered and dismissed on 5 April 1937, the Subordinate Judge finding that the Plaintiff had failed to establish pauper status and that the suit was being continued by other persons behind the scene.

The Plaintiff moved this Court on 5 April challenging the Subordinate Judge's valuation/order of 30 January and the 5 February refusal to amend. On 6 April the Plaintiff made a further application in the Subordinate Judge’s Court (seeking, among other things, time for sureties to be noticed and a week's time to pay the deficit), but the Court only gave two days' notice to the sureties and on 8 April formally rejected the plaint for non-payment of the deficit court-fees. The present appeal challenges that 8 April order.

Legal Issues Presented

Whether the Appellant could challenge the learned Subordinate Judge's valuation of the subject-matter of the suit at Rs. 60,000 for the purpose of computing court-fees under section 7, sub-section (iv), clause (c) of the Court Fees Act, having regard to section 12 of the Court Fees Act (paragraph 1) and the explanation added by Bengal Act VII of 1935.
Whether the learned Subordinate Judge erred in refusing to grant further time (at least one week's extension) to enable the Appellant to pay the deficit court-fees and whether the Court below had given the Appellant sufficient opportunity to pay the deficit fees.

Arguments of the Parties

Appellant's Arguments

Initially contended that Article 5 of Schedule II of the Court Fees Act applied and that a small stamp (12 annas 12) was sufficient; alternatively argued that computation should be under clause 11 of section 7 of the Court Fees Act if Article 5 did not apply.
Before this Court the Appellant's counsel accepted that Article 5 of Schedule II and section 7, sub-section (xi) were inapplicable and accepted that computation must be under section 7, sub-section (iv), clause (c); the principal point pressed was to challenge the correctness of the learnt Subordinate Judge's valuation of Rs. 60,000 (i.e., that the Court below was not right in valuing the subject-matter at Rs. 60,000).
Secondly, the Appellant argued that the Court ought to have given further time (at least one week) to enable payment of the deficit court-fees.

Respondents' / Defendants' Position

After appearance the Defendants raised the question of the sufficiency of the court-fees paid on the plaint and thus prompted the enquiry into the correct valuation/fee payable (this is the operative position recorded in the opinion).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jitendra Nath Ghosh v. Hiranmoy Kumar Saha	Cited among a series of decisions concerning the finality of valuation decisions under section 12 (paragraph 1) of the Court Fees Act.	Referred to as part of existing series of cases supporting the view that valuation decisions of the trial court are final between the parties for court-fee purposes.
Santa Prosad Saha v. Sm. Mrinalini Saha	Cited as part of the body of case-law interpreting paragraph 1 of section 12.	Used to support the proposition that the Court of first instance's valuation is final where the class of suit is not in question.
Urmila Bala Biswas v. Binapani Biswas	Another decision in the series on section 12 and valuation finality.	Referred to in support of the settled position on finality of valuation decisions.
Kumudini Kanta Mukherjee v. Municipal Commissioners of the Barasat Municipality	Cited among prior decisions on paragraph 1 of section 12.	Included as part of authorities showing the previous consistent view of the courts.
Anath Nath Banerjee v. Kalimata Thakurain represented by Harendra Nath Haider	Part of the series of decisions relating to valuation finality under section 12.	Relied upon to show the pre-existing line of authorities consistent with the Court's interpretation.
Kanai Lal Banerjee v. Satyabati Devi	Also cited among earlier decisions on section 12's effect.	Referred to as one of the earlier cases supporting the Court's view on finality of valuation decisions.
Mal Marwari v. Jessie Coroline Murray	Referenced as a judgment which mentioned several prior cases on paragraph 1 of section 12.	Used to indicate the history of decisions interpreting section 12 before the 1935 amendment.
Omrao Mirza v. Mary Jones	Discussed as a case relied upon by the Division Bench in Prokash Chandra Sarkar; here noted that the actual decision related to class questions though it contained an obiter suggesting a different view.	Court observed that the case does not decisively support Prokash Chandra Sarkar on the point and at best contains an obiter which was relied on by the Division Bench.
H.C. Studd v. Mati Mahto	Relied upon by the Division Bench in Prokash Chandra Sarkar but, according to this opinion, does not support the view for which it was cited.	Court held that this case does not support the contrary view urged in Prokash Chandra Sarkar.
Prokash Chandra Sarkar v. Bishambhar Nath (Division Bench)	Held that paragraph 1 of section 12 does not prevent an appellant from challenging valuation made by the Court of first instance even where class is not in dispute (a contrary view to the earlier line of cases).	The Court rejected this Division Bench view as not in accord with earlier decisions and, in light of the statutory explanation added by Bengal Act VII of 1935, declined to follow it or refer the question to a Full Bench.

Court's Reasoning and Analysis

The Court proceeded by addressing the two principal points raised by the Appellant.

First point — challenge to valuation (Rs. 60,000):

The Court noted that the Appellant's counsel accepted that Article 5 of Schedule II and section 7(xi) were inapplicable and accepted that computation must be made under section 7, sub-section (iv), clause (c) of the Court Fees Act; he nevertheless challenged the Subordinate Judge's valuation of Rs. 60,000.
To decide that challenge the Court construed paragraph (1) of section 12 of the Court Fees Act, which states that every question relating to valuation for the purpose of determining the amount of any fee chargeable under that chapter on a plaint shall be decided by the Court in which the plaint is filed and that such decision shall be final between the parties.
The Court observed that paragraph (1) had stood in the same form since 1870, and that paragraph (2) had been amended in Bengal by Act VII of 1935, which also added an explanation expressly stating that a question of classification of any suit for the purpose of section 7 shall not be deemed a question relating to valuation for the purposes of section 12. The Court treated this explanation as clarifying the statutory position and as statutory recognition of the prior line of decisions.
Given that statutory position and the Appellant's acceptance that computation falls under section 7(iv)(c), the Court concluded it was not open to the Appellant to challenge the finding of the Subordinate Judge that the value of the subject-matter was Rs. 60,000 for court-fee computation. The Court therefore overruled the first point.
The Court considered but rejected the contrary Division Bench authority in Prokash Chandra Sarkar v. Bishambhar Nath, finding it not in accord with the earlier series of decisions and not persuasive in light of the statutory explanation; the Court declined to refer the matter to a Full Bench.

Second point — request for further time to pay deficit court-fees:

The Court reviewed the procedural history and timings: the matter was pending since June 1936; security for potential fees (on valuation of Rs. 60,000) had been demanded in 1936; on 30 January 1937 the amount was assessed and the Appellant was given one week's time; she did not comply and was granted further time to 20 February 1937.
On 20 February the Appellant sought seven days' further time while simultaneously applying to continue the suit in forma pauperis; that pauper application kept the suit alive for nearly seven weeks and was only dismissed on 5 April 1937. On 6 April the Appellant again asked for further time, but the Court found that application (printed at page 98 of the paper-book) to be not bona fide in light of its contents and prior conduct.
The Court concluded that sufficient time had been given and that the Subordinate Judge was justified in rejecting the plaint on 8 April 1937 for non-payment of the deficit court-fees.

Additional observations:

The Court noted that the proper substantive order might have been dismissal under section 8B(3) of the Court Fees Act as amended in Bengal by Act VII of 1935 rather than rejection under Order 7, Rule 11 of the Code of Civil Procedure, but held that the form of the order was not material to the result in the case.

Holding and Implications

APPEAL DISMISSED

Direct effect on the parties:

The appeal was dismissed and the order rejecting the plaint for non-payment of the deficit court-fees stands.
The Appellant was ordered to pay costs: hearing-fee of six gold mohurs, to be divided equally between the appearing Respondents.

Broader implications and precedent:

The Court reaffirmed the effect of paragraph (1) of section 12 of the Court Fees Act, especially as clarified by the explanation added by Bengal Act VII of 1935, that valuations made by the court of first instance for the purpose of determining court-fees are final between the parties (where the class of suit is not in dispute). The Court explicitly rejected the contrary Division Bench view in Prokash Chandra Sarkar as not persuasive in light of the statutory clarification and prior decisions. The opinion states that no further judicial referral (Full Bench) was considered necessary. The Court also indicated that, as a matter of form, dismissal under section 8B(3) might have been more appropriate than rejection under Order 7, Rule 11, but treated the difference in form as immaterial to the outcome in this case.

Costs and disposition: The appeal is dismissed with costs as stated above.

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Jarimon Khatoon v. Secretary Of State For India In Council

The Judgment of the Court was as follows:—

The Plaintiff is the Appellant before us. She appeals against the order of the learned Subordinate Judge, dated the 8th April, 1937, by which her plaint had been rejected for non-payment of the deficit court-fees of Rs. 1,980 which the Court below had asked her to pay. The suit was valued by the Plaintiff for the purpose of jurisdiction and of court-fee at the sum of Rs. 2,100 and she paid ad valorem court-fee upon that amount at the time when the plaint was registered after presentation. After the plaint was registered, the Defendants entered appearance and they raised the question of the sufficiency of the court-fees paid on the plaint. On that, the learned Subordinate Judge took security for the payment of the additional court-fee that may eventually be found due and proceeded to determine the amount payable. For the purpose of determining the amount payable, he started an enquiry under sec. 8C of the Court Fees Act. A Commissioner was appointed for the purpose of finding out certain details which would, according to the learned Subordinate Judge, be relevant to find out the value of the property in suit. After the Commissioner had submitted his report he took further evidence and came to the conclusion that the net profits of the property in suit were Rs. 4,000 a year. He capitalized the said amount and came to the conclusion that the value of the property in suit was Rs. 60,000. The question as to the amount of court-fees on the plaint was then argued before him. The Plaintiff first contended that Art. 5 of Sch. II of the Court Fees Act was applicable and under that article the court-fee stamp of 12 annas twelve was sufficient. She further contended that if Art. 5, Sch. II was not applicable, the computation must be made in accordance with the terms of cl. 11 of sec. 7 of the Court Fees Act.

These two points raised by the Plaintiff were overruled by the learned Subordinate Judge. He came to the conclusion that the case fell within sec. 7, sub-sec. (iv), cl. (c) of the Court Fees Act. He further found that the valuation given in the plaint was an arbitrary valuation and for the purpose of computing court-fee under sec. 7, sub-sec. (iv), cl. (c), Rs. 60,000 should be taken to be the value of the subject-matter of the suit. This finding of the learned Subordinate Judge is recorded in his order, dated the 30th January, 1937. On the basis of the said order he found that Rs. 2,175 was the fee payable on the plaint but inasmuch as Rs. 195 had already been paid, he demanded from the Plaintiff the difference, viz., Rs. 1,980. He gave the Plaintiff time to pay the said deficit amount by the 6th February following. On the 6th February, however, the Plaintiff put in an application for amendment of the plaint with a view to circumvent the order of the learned Subordinate Judge passed on the 30th January, 1937. That application for amendment was refused on the same day and we think rightly. The Subordinate Judge, however, extended the time for the payment of deficit court-fee to the 20th February, 1937. In his order, dated 6th February, 1937, when extending the time up to the 20th February, the learned Subordinate Judge made it quite clear that no further time would be given for putting in the deficit court-fee inasmuch as the matter regarding court-fees was pending in that Court since the 17th June, 1936. On the 20th February, however, the Plaintiff did not pay the deficit court-fees but made an application for being allowed to continue the suit as a pauper. This last-mentioned application was kept pending till 5th April, 1937. On that date, the matter was fully gone into. The learned Subordinate Judge came to the conclusion that the Plaintiff had failed to establish that she was a pauper. Further, he recorded a finding that the suit was really being continued by other persons behind the scene. On the 5th April, the Plaintiff moved this Court against the order of the learned Subordinate Judge, dated the 30th January, 1937, by which the amount of court-fees payable had been determined and also the order of the 5th February, 1937, by which her application for amendment of the plaint had been refused. On the next day, viz., on the 6th April, she made an application to the learned Subordinate Judge which is printed at page 98 of the paper-book. It is a curious application. First of all, it stated that notice ought to be issued upon the sureties to compel them to pay court-fees on her behalf. She further stated that she had moved this Court and this Court had issued a Rule on her application. In the prayer she said that she wanted a further week's time for paying the deficit court-fees and at the same time prayed for a week's time for the purpose of enabling a communication to that Court of this Court's order, that is to say, of the Rule which had already been issued on the 5th April. The Court did not give further extension of time for the payment of court-fees as prayed for but only gave two days' time to the sureties to appear and on the 8th April following passed the formal order rejecting the plaint for non-payment of the deficit court-fees. It is against this order that the present appeal has been filed.

Mr. Moitra appearing on behalf of the Plaintiff Appellant accepts the position that neither Art. 5, Sch. II of the Court Fees Act nor sec. 7, sub-sec. (xi) of the same Act is applicable to the case and that the learned Subordinate Judge was right in holding that the computation has to be made under the provisions of sec. 7, sub-sec. (iv), ch (c) of the Court Fees Act. He does not contend before us that sec. 8(c) of the Court Fees Act is inapplicable to a case falling within sec. 7, sub-sec. (iv), cl. (c) of the Court Fees Act. In fact, having regard to the decisions of this Court, that contention, even if it had been made before us, could not have been sustained. See the cases of Jitendra Nath Ghosh v. Hiranmoy Kumar Saha (1), Santa Prosad Saha v. Sm. Mrinalini Saha (2), Urmila Bala Biswas v. Binapani Biswas (3), Kumudini Kanta Mukherjee v. Mtinicipal Commissioners of the Barasat Municipality (4), Anath Nath Banerjee v. Kalimata Thakurain represented by Harendra Nath Haider (5) and Kanai Lal Banerjee v. Satyabati Devi (6). Nor does he contend that the reliefs prayed for in the suit before us have no objective standard of valuation. In the circumstances he raised the question that the learned Subordinate Judge was not right in valuing the subject-matter of the suit at Rs. 60,000 for, the purpose of computing court-fees under sec. 7(iv)(c) of the Court Fees Act. That is the first point he raised.

The second point that he raised is that the Court ought to have given his client some further time for the purpose of enabling her to put in deficit court-fees. At least, a week's time, he says, should have been granted to her as prayed for in her application printed at page 98 of the paper-book.

For deciding the first point, we will have to construe the provision of paragraph (1) of sec. 12 of the Court Fees Act. That paragraph enacts:

“Every question relating to valuation for the purpose of determining the amount of any fee chargeable under this chapter on a plaint …. shall be decided by the Court in which such plaint …. is filed, and such decision shall be final as between the parties to the Suit.”

his paragraph stood in the same form since 1870. It is only paragraph 2 that has been amended in Bengal by the Act VII of 1935. By the same Act (Bengal Act VII of 1935) an explanation was added to the section. The explanation is in these terms:

“For the purposes of this section a question relating to the classification of any suit for the purpose of sec. 7 shall not be deemed to be a question relating to valuation.”

On the section as it stood before its amendment by Act VII of 1935 (B.C) there was a series of decisions in which the view was maintained that sec. 12 had no application where the question for decision was as to the class under which a suit fell and not merely of valuation in that class. If there was a question of valuation, there being no question as to the class in which the suit fell, the valuation made by the Court of first instance was final. Some of these cases are mentioned in the judgment in the case of Sunday, Mal Marwari v. Jessie Coroline Murray (7) and in other cases which it is not necessary for us to review because the explanation added to sec. 12 by Bengal Act VII of 1935 has made the position clear. It is the statutory recognition of the effect of the decisions given on paragraph 1 of sec. 12 of the Court Fees Act as it stood from 1870. As the Appellant's Advocate does not dispute before us the finding of the learned Subordinate Judge that computation has to be made under sec. 7 (iv)(c) of the Court Fees Act and as the learned Subordinate Judge valued the subject-matter at Rs. 60,000 for the purpose of computing the court-fees under that section, we do not think that it is open to the Appellant to challenge the correctness of the finding of the learned Subordinate Judge that the value of the subject-matter is Rs. 60,000.

Our attention has been drawn by the Appellant to a judgment of a Division Bench in the case of Prokash Chandra Sarkar v. Bishambhar Nath , where Mr. Justice Brett and Mr. Justice Sharfuddin held that paragraph 1 of sec. 12 of the Court Fees Act does not prevent an Appellant from challenging the valuation made by the Court of first instance for the purpose of assessing court-fee even when there is no question as to the class in which the suit falls. This view is not in accord with the series of previous decisions of this Court and of other Courts which it does not appear were cited before them. They rely upon two cases Omrao Mirza v. Mary Jones and H.C Studd v. Mati Mahto . The last-mentioned case, however, does not support the view taken in that case; for there, the question raised in the lower Court and in this Court related to the class in which the particular suit fell. In Omrao Mirza''s case the actual decision related to the question as to whether the suit fell within a particular class or not. There is, however, an obiter in that case which would support the view taken by Mr. Justice Brett and Mr. Justice Sharfuddin.

In view of the fact that the legislature has made the position clear, by adding the explanation to sec. 12 of the Court Fees Act and having regard to the fact that a series of cases had decided the other way, we do not feel impressed by the judgment in Prokash Chandra Sarkar's case . In view of the fact that we have now a statutory enactment, we do not further feel inclined to refer the matter to a Full Bench for the purpose of considering the correctness of the decision in Prokash Chandra Sarkar's case . We accordingly overrule the first point urged by the Appellant.

With regard to the second point, we are of opinion that sufficient time had been given to the Appellant to pay the deficit court-fee. The matter was hanging from June, 1936. Just before the enquiry was started, security was demanded from her for court-fees which would be payable on a valuation of Rs. 60,000. She had warning from the time when the security was demanded and that was in 1936. She had warning that she might be called upon to pay further court-fees. On the 30th January, 1937, the amount was assessed, she was given a week's time to pay the deficit court-fees. She did not comply with that order and got further time till the 20th February, 1937. On the 20th February, 1937, she asked for further time for seven days to put in the deficit court-fees and in that application she expressly stated that she would not pray for any further adjournment for further time. On the same day, however, she put in an application to continue the suit in forma pauperis and that application kept the suit still alive not for seven days, but for nearly seven weeks. On the 5th April, 1937, her application to continue the suit in forma pauperis was dismissed. No final order had been passed on her plaint on that date. On the 6th, she made a prayer for time for another week to pay in the deficit court-fees. But that prayer having regard to the contents of the application printed at page 98 of the paper-book and the other prayer made therein was not a bonâ fide prayer at all.

In the circumstances, we think that the Court below was justified in rejecting the plaint on the 8th April, 1937. We think that the proper order for the Court would have been an order for dismissal under the provisions of sec. 8B(3) of the Court Fees Act as amended in Bengal by Act VII of 1935 and not an order rejecting the plaint under the provisions of Or. 7, r. 11 of the Code of Civil Procedure. But the form of the order is not very material to us in this case. We have proceeded on the footing of the order as actually made and even proceeding on that footing we do not find any substance in this appeal.

This appeal is accordingly dismissed with costs, hearing-fee six gold mohurs, to be divided equally between the appearing Respondents.

P.C

Jarimon Khatoon v. Secretary Of State For India In Council

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondents' / Defendants' Position

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Jarimon Khatoon v. Secretary Of State For India In Council

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