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Attorney(S)
  • B.P Sinha, for the appellant.
  • Government Pleader, for the Crown.
Judges
  • James, J.
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Attorney(S)
  • B.P Sinha, for the appellant.
  • Government Pleader, for the Crown.
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  • James, J.
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Smart Summary

Judicial Opinion Summary — James, J.

Factual and Procedural Background

This opinion arises from a reference under section 5 of the Court-Fees Act to determine whether ad valorem court-fee is payable on appeals to the High Court that were admitted and registered after being accepted by the Stamp Reporter as sufficiently stamped with a court-fee of Rs. 4, but where, subsequent to their admission, the law as interpreted by this Court changed.

Relevant procedural and factual chronology set out in the opinion:

  • 22 December 1925 — A Full Bench decided that where mesne profits accruing pendente lite were left to be ascertained in execution of the decree, no court-fee was payable on the claim until the amount was ascertained.
  • 14 July 1926 — The Taxing Judge decided that ad valorem court-fee should not be levied on appeals to this Court from decisions determining the amount of mesne profits (Sheodhin Singh v. Norangi Lal Ram Marwari).
  • 10 March 1932 — A Division Bench decided in Kedar Nath Goenka v. Maharaja Chandra Maudeshwar Singh that ad valorem court-fee was payable on such memoranda of appeal.
  • 18 November 1932 — The Taxing Judge, on referral between the Stamp Reporter and an appellant after the Division Bench decision, held ad valorem court-fee payable on the memorandum of appeal.
  • Present matter — The Stamp Reporter had accepted an appeal as sufficiently stamped before the Division Bench decision but, after that decision, reopened the question and called upon the appellant to pay ad valorem court-fee. The matter is referred to James, J. under section 5 for determination as to the requirement of ad valorem court-fee for appeals pending though earlier admitted as sufficiently stamped.

Legal Issues Presented

  1. Whether ad valorem court-fee is payable on memoranda of appeal to the High Court in cases where the appeal arises from decisions determining the amount of mesne profits (including mesne profits pendente lite).
  2. Whether the Stamp Reporter is functus officio after accepting and registering an appeal as sufficiently stamped, or whether he may reopen the question of the sufficiency of the stamp while the appeal remains pending.
  3. Whether appeals admitted and registered as sufficiently stamped before a later change in the Court's view (as in Kedar Nath Goenka) can be called upon to pay additional ad valorem court-fee during the pendency of the appeal.

Arguments of the Parties

Appellant's Arguments (Mr. B.P. Sinha)

  • Distinction should be drawn between the present case and Dhanukdhari Prosad Pande: in that case the suit was for recovery of mesne profits, whereas the present suit was for recovery of possession with a claim for mesne profits pendente lite.
  • When the Stamp Reporter has once accepted an appeal as properly stamped and it has been admitted and registered, the Stamp Reporter should be treated as functus officio and should not be entitled to reopen the sufficiency of court-fee.
  • Because the Court-Fees Act contains no provision for refund of court-fee, it would be unfair to exact additional court-fee from appellants whose appeals were accepted under the previous practice but where the view of the law changed during pendency.
  • Accepting the technical view that the law has always been as declared later is "mere convention or legal fiction"; matters finally determined res judicata should not be reopened merely because a later case takes a different view.

Government Pleader's Arguments

  • The sufficiency of the stamp on a memorandum of appeal is open until the appeal is finally heard and disposed of, under the first part of section 12 of the Court-Fees Act; at final hearing the respondent may object that the memorandum was not properly stamped.
  • This view applies clearly to subordinate courts and to the High Court when considering sufficiency under the second part of section 12, though there is doubt whether the first part empowers the Bench hearing the appeal to reject an insufficiently stamped memorandum (the opinion of Sir Dawson Miller in Krishna Mohan Singh v. Raghunandan Pande is referenced on delegation to the Taxing Officer and Taxing Judge).
  • Adopting the grounds of the Taxing Officer, the appeal should be treated as having been admitted by mistake and rule 19 of Chapter VII of the Patna High Court Rules should apply.

Taxing Officer's Position (as adopted in submissions)

  • Decisions of courts interpret law but do not make or reverse it; therefore when the Stamp Reporter accepted the memorandum as sufficiently stamped, the law was technically the same as now, and correcting a former mistaken report is not retrospective correction of a decision.
  • On that technical basis the Stamp Reporter can correct his report and require additional stamp if the prior acceptance was mistaken.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Sheodhin Singh v. Norangi Lal Ram Marwari Taxing Judge's decision (14 July 1926) that ad valorem court-fee should not be levied on appeals to this Court from decisions determining mesne profits, following the Full Bench (22 Dec 1925). Placed in the chronology of differing views; used to show prior practice under which some memoranda were accepted as sufficiently stamped.
Kedar Nath Goenka v. Maharaja Chandra Maudeshwar Singh (Division Bench, 10 March 1932) Division Bench decision that ad valorem court-fee was payable on memoranda of appeal in such cases. Represents the later authoritative view of the Court; formed the basis for the Stamp Reporter reopening previously accepted memoranda and for the Taxing Judge's later decision.
Dhanukdhari Prosad Pande Held that ad valorem court-fee was payable on the amount for which the appellant sought to avoid liability or the amount by which he sought to enhance the value of his decree; governed by first article of Schedule I of the Court-Fees Act (fee calculated on subject-matter value). Adopted as the rule to be applied to memoranda of appeal pending in the High Court determining mesne profits; the Court directs compliance with this rule for pending appeals.
Krishna Mohan Singh v. Raghunandan Pande (remarks of Sir Dawson Miller) Expression that the power of the High Court to decide the amount of the fee payable on a memorandum of appeal presented to the High Court has been delegated to the Taxing Officer and the Taxing Judge. Used to show doubt whether the Bench hearing the appeal can itself reject a memorandum as insufficiently stamped; informs the analysis about the allocation of function between Bench and Taxing Officer.

Court's Reasoning and Analysis

The Court's analysis proceeds by examining statutory provisions, court rules, prior decisions and the practical effect of those authorities on the Stamp Reporter's functions.

  1. The Court notes section 12 (first part) of the Court-Fees Act, which directs that questions relating to valuation for fee purposes shall be decided by the Court in which the memorandum is filed; the Government Pleader relied on this to suggest that sufficiency of stamp remains open until final hearing. The Court observes that this position applies clearly in subordinate courts and under the second part of section 12 but that there is doubt whether the Bench hearing the appeal can itself reject an insufficiently stamped memorandum in view of delegation to Taxing Officer/Taxing Judge (as per Sir Dawson Miller's remarks in Krishna Mohan Singh).
  2. The Patna High Court Rules (rule 19, Chapter VII) require the Stamp Reporter to report if a document accepted by mistake/inadvertence lacked proper stamping and to afford the presenting pleader an opportunity to accept or dispute the report within three weeks. The Court finds this rule contemplates that the Stamp Reporter is not completely functus officio after admission and registration: the Stamp Reporter may reopen the question where an insufficient stamp was accepted by mistake or inadvertence and where the matter has not been decided by the Taxing Officer.
  3. The Court considers the Taxing Officer's technical view that judicial decisions interpret rather than change the law; therefore the law was the same when the memorandum was accepted and when the later decision issued. On that technical basis, correcting a prior mistaken report is not giving retrospective effect to a later decision.
  4. The appellant's equitable argument that it would be unfair to require additional fee because there is no refund provision and because the Stamp Reporter followed the then-prevailing practice is noted. The Court records the appellant's contention that treating the Stamp Reporter's earlier action as a "mistake" would be a strained reading when the Stamp Reporter acted in accordance with then-prevailing rule; the Court nevertheless rejects the position that the Stamp Reporter is completely functus officio.
  5. Balancing the rules and authorities, the Court concludes that the Stamp Reporter retains power to reopen the question of sufficiency of the stamp while the appeal remains pending (so long as the matter has not already been decided by the Taxing Officer). The Court therefore holds that in appeals from orders determining the value of mesne profits which are still pending, the Stamp Reporter should require memoranda to be stamped in accordance with the rule in Dhanukdhari Prosad Pande's case.

Holding and Implications

Core Ruling:

The Stamp Reporter may require memoranda of appeal pending before this Court that arise from orders determining mesne profits to be stamped with ad valorem court-fee in accordance with the rule laid down in Dhanukdhari Prosad Pande's case.

Direct consequences and implications (as stated in the opinion):

  • Appellants whose memoranda of appeal are still pending before the Court in appeals from orders determining mesne profits must have their memoranda stamped in accordance with Dhanukdhari Prosad Pande.
  • The Stamp Reporter is not to be regarded as completely functus officio upon admission and registration of an appeal; he has the power to reopen the question of sufficiency of stamp while the appeal remains pending (subject to whether the Taxing Officer has already decided the matter).
  • The opinion does not state any broader rule purporting to create or reverse law beyond application of existing authorities; it applies the existing authorities and court rules to the specific procedural situation described. The Court concludes with the administrative direction: "Order accordingly."
Order accordingly.

This summary is strictly confined to the matters expressly set out in the provided opinion. No facts, arguments or holdings beyond those in the opinion have been added.

Show full summary ...

    Sideshwari Prasad v. Ram Kumar Rai

    James, J.:— On December the 22nd, 1925, a Full Bench of this Court decided that where the amount of mesne profits accruing pendente lite was left to be ascertained in the course of execution of the decree, no court-fee was payable on the claim until the amount actually due had been ascertained. Following this decision, the Taxing Judge decided on the 14th July, 1926, that ad valorem court-fee should not be levied on appeals to this Court from decisions, determining the amount of mesne profits—Sheodhin Singh v. Norangi Lal Ram Marwari. On the 10th of March, 1932, the question of whether aid valorem court-fee was payable on such appeals came before a Division Bench of this Court in Kedar Nath Goenka v. Maharaja Chandra Maudeshwar Singh(2), when it was decided that ad valorem court-fee was payable on such a memorandum of appeal. On a question arising between the Stamp Reporter and an appellant after this decision, as to whether ad valorem court-fee was payable or not, the matter was referred to me as Taxing Judge, whose decision of the 18th of November, 1932, was that ad valorem court-fee was payable on the memorandum of appeal. In the present case, the Stamp Reporter had accepted the appeal as sufficiently stamped, before the decision of the Division Bench in Kedar Nath Goenka's case, but after the decision of that case he reopened the question and called upon the appellant to pay ad valorem court-fee on the value of his appeal. The case has been referred to me by the Taxing Officer under section 5 of the Court-Fees Act for determination of the question of whether ad valorem court-fee shall be required in such cases, where appeals are still pending before this Court, though at the time of their presentation they were accepted by the Stamp Reporter as sufficiently stamped with a court-fee of Rs. 4, and duly admitted and registered.

    Mr. B.P Sinha on behalf of the appellant agrues that a distinction should be drawn between this case and that of Dhanukdhari Prosad Pande(3) wherein the Taxing Judge, accepting the view expressed by the Division Bench, decided that ad valorem court-fee was payable on appeals from decisions determining the amount of mesne profits. In that case the appeal arose out of a suit for recovery of mesne profits, whereas in the present case the suit was for recovery of possession of land, with no claim for antecedent mesne profits, but with a claim for mesne profits pendente lite. In Dhanukdhari Prosad Pande's case it was held that ad valorem court-fee was payable on the amount for which the appellant sought to avoid liability, or on the amount by which he sought to enhance the value of his decree, on the principle that the case was governed by the first article of Schedule I of the Court-Fees Act which prescribes that a memorandum of appeal must bear a court-fee stamp calculated on the value of the subject-matter in dispute in the appeal. The rule applies to all appeals from decisions determining the amount of mesne profits, whether the profits may have accrued before suit, or after the date of the institution of the suit; and no distinction can properly be drawn between this case and that of Dhanukdhari Prosad Pande on any such ground.

    On the question of whether the rule that ad valorem court-fee is to be regarded as payable in the High Court on a memorandum of appeal of this nature is to be treated as affecting appeals admitted before the decision of the Division Bench of the 10th March, 1932, or the decision of the Taxing Judge of the following 18th of November, Mr. B.P Sinha argues 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 reopen the question of the sufficiency of the court-fee. He also argues that since there is no provision in the Court-Fees Act for refund of court-fee which might have been paid in the opposite circumstances, it would not be fair to exact additional court-fee because during the pendency of the appeal, the practice has been changed by a decision of this Court.

    It is suggested by the learned Government Pleader that the question of the sufficiency of the stamp on the memorandum of appeal must always be regarded as open until the appeal is finally heard and disposed of, in view of the provisions of the first part of section 12 of the Court-Fees Act, which directs that every question relating to valuation for the purpose of determining the amount of, any fee chargeable on a memorandum of appeal shall be decided by the Court in which such memorandum is filed; and it is suggested that at the final hearing of the appeal it is open to the respondent to object that the memorandum of appeal has not been properly stamped. This view is certainly correct as applying to courts subordinate to the High Court and as applying to the High Court when considering the question of the sufficiency of the stamp in the court below under the second part of the section; but it must at least be regarded as doubtful whether the first part of section 12 of the Court-Fees Act can be held to empower the Bench hearing the appeal to reject a memorandum as insufficiently stamped, in view of the remarks of Sir Dawson Miller in Krishna Mohan Singh v. Raghunandan Pande, when he expressed the opinion that the power of the High Court to decide the amount of the fee payable on a memorandum of appeal presented to the High Court has been delegated to the Taixng Officer and the Taxing Judge.

    However that may be, under rule 19 of Chapter VII of the Rules of the Patna High Court, the Stamp Reporter, when he finds that a document which ought to bear a stamp under the Court-Fees Act has been through mistake or inadvertence received in the Court without being properly stamped, is required to report the fact to the pleader who presented the document, who is obliged to note within three weeks whether he accepts or disputes the accuracy of the report. There is no doubt that under this rule the Stamp Reporter would be required to take action if he found that a memorandum of appeal which was insufficiently stamped had been accepted by mistake or inadvertence as sufficiently stamped; and that it cannot be said that when the appeal is once admited and registered, the functions of the Stamp Reporter are necessarily at an end. Mr. B.P Sinha points out that this rule applies only where an insufficiently stamped document has been accepted by mistake or inadvertence; and he contends that it cannot be applied to like that now before me, in which the Stamp Reporter acting correctly in accordance with the rule then prevailing accepted the memorandum of appeal as sufficiently stamped. But the rule does imply that the Stamp Reporter is not completely functus officio when an appeal has once been registered; and although it may be said that it is only where the document was received by mistake or inadvertence that the rule can be applied whereby the party's pleader is not permitted to question the amended report unless he does so within three weeks, it must be held that the Stamp Reporter has power to reopen the question of whether a document is sufficiently stamped, where the matter has not already been decided by the Taxing Officer, so long as the appeal may remain pending. The question remains of whether it is proper to treat appellants, whose memoranda of appeal may have been duly admitted and registered, where the matter of what may be the court-fee payable has not been left open, but has been decided in a manner which appears to be final, as liable to be called upon to pay additional court-fee during the pendency, of the appeal; owing to a change, in the view of the law taken in this Court after the appeal has been admitted.

    The learned Government Pleader, adopting the grounds set out by the Taxing Officer of this Court, argues that the appeal should be treated as having been admitted by mistake, and that rule 19 of Chapter VII of the High Court Rules should be held to apply.

    As the Taxing Officer has pointed out, decisions of the Courts do not make the law or reverse it; they merely interpret it; and the law, when the Stamp Reporter accepted this memorandum of appeal as sufficiently stamped, was the same as is now, so that if he now corrects his former mistaken report he is not really giving retrospective effect to a decision of the Taxing Judge. The learned Advocate for the appellant accepting this view as technically correct, argues at the same time that whatever may be the formal or technical view of the matter, the view that the law has always been in accordance with the latest decision on any particular point is essentially mere convention or legal fiction, since any matter which has already been finally determined so as to be res judicata is not reopened merely because a different view of the law may be taken in some subsequent case. He argues that it would be straining the language of the rule to suggest that the Stamp Reporter acted by mistake or inadvertence when he admitted the plaint in accordance with the rule then prevailing, since if he had acted otherwise at that time, he would have been acting without authority and would have done wrong.

    Whatever may be the incidental consequences of holding that the Stamp Reporter is not completely functus officio in the matter of these reports until the case is finally decided, I consider that this is the view which should be adopted. Mr. Sinha suggests that if the circumstances were the opposite of what they are he would have no remedy; but that question may be considered when it arises. In appeals from orders determining the value of mesne profits which are still pending for decision in this Court, the Stamp Reporter should require the memoranda to be stamped in accordance with the rule laid down in Dhanukdhari Prosad Pande's case.

    Order accordingly.

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    Comments

    Sideshwari Prasad v. Ram Kumar Rai
    (Feb 7, 1933)