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Charusila Dassi v. Abhilas Bauri
Factual and Procedural Background
The appellant filed three applications under Section 105, Bengal Tenancy Act, before the Revenue Officer, Rampurhat, Birbhum, seeking settlement of fair and equitable rent for specified holdings. In those proceedings she raised issues under Section 105-A: (1) whether holdings recorded as Mokrari are in fact occupancy holdings; (2) whether the rents recorded in the Record of Rights are the existing rents; and (3) whether she was entitled to additional rent for excess area. She paid a stamp of 12 annas for each holding and Rs. 20 for each of the three applications.
The Revenue Officer decided against the appellant. She appealed to the Special Judge, Birbhum, paying the same court-fees as on the applications. The Special Judge treated the appeals as appeals arising out of suits under Section 106 of the Bengal Tenancy Act, consequentially demanding additional court-fees. The appellant failed to supply the additional stamps as ordered and, as a result, the Special Judge's order dismissed (in form) or rejected (in substance) her memoranda of appeal. The appellant then appealed to the High Court; she paid the same court-fees as had been paid before the Special Judge.
While the High Court appeal was pending, several respondents in the appeals died and their heirs were not substituted in time; accordingly, the appellant's claims for fair rent in respect of certain khatians were dismissed as abated. The High Court considered a preliminary objection on whether an appeal lies against an order rejecting a memorandum of appeal and then addressed the proper court-fee payable where issues under Section 105-A had been determined.
Legal Issues Presented
- Whether an order of the Special Judge that, in substance, rejects a memorandum of appeal (for failure to supply requisite stamps) is an appealable order to this Court.
- If a second appeal or other appellate remedy is available, what court-fee is payable on a memorandum of appeal before the Special Judge where questions under Section 105-A of the Bengal Tenancy Act have been investigated and determined (i.e., whether the notification under Section 105(3) governs or the Court-fees Act applies)?
- How the value of the subject-matter of the appeals before the Special Judge should be determined for the purpose of computing ad valorem court-fee (including the appropriate multiplier or valuation principle to be applied).
Arguments of the Parties
Respondents' (preliminary) argument
- The order of the Special Judge, though in form expressed as a dismissal, is in substance an order of rejection of the memorandum of appeal because the memoranda were not properly stamped; an order rejecting a memorandum is not appealable to this Court.
Appellant's arguments
- The appellant contended that an appeal lies against an order rejecting a memorandum of appeal.
- On the question of court-fees, the appellant's counsel argued that the notification under Section 105(3) does not apply to appeals and that the Court-fees Act should determine the fee payable; specifically, the memoranda of appeal before the Special Judge should not fall under Article 1, Schedule 1 of the Court-fees Act but under Article 1, Clause (b), Schedule 2.
- The appellant relied on the Full Bench decision Upadhya Thakur v. Persidh Singh (1896) 23 Cal 723 to support the contention that memoranda of appeal were not treated as suits for court-fees purposes in the older law.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Jnanada Sundari Shah v. Madhab Chandra (1932 Cal 482) | The proposition that Section 107(2) (investing appellate courts with the powers of original courts) does not have the effect of making an order passed by an appellate court the same as an order passed by an original court of like nature; i.e., the legislature would have expressly included rejection of a memorandum of appeal as a 'decree' if that had been intended. | The Court respectfully agreed with the observation and used it in analysing whether an order rejecting a memorandum of appeal is appealable; the Court concluded that Section 107(2) does not by itself make an appellate order equivalent to an original-court decree for the purpose of treating a rejection of memorandum as a decree appealable to this Court. |
| Upadhya Thakur v. Persidh Singh (1896) 23 Cal 723 (Full Bench) | Historically held that no memorandum of appeal was required before the Special Judge in appeals arising from rent-settlement proceedings as the proceeding was not a suit; enumerated reasons why such proceedings were distinguishable for court-fees purposes under the law then in force. | The Court analysed the Full Bench reasoning and concluded that subsequent legislative changes (including introduction of Section 105-A and power to fix court-fees by notification) have altered the character of proceedings; therefore, Upadhya Thakur cannot be applied to appeals where Section 105-A questions are determined and does not defeat the application of ad valorem fees under the Court-fees Act for such appeals. |
| Jnanda Sundari v. Abdul Rahman (1916 Cal 413) (Full Bench) | Explained historical development: introduction of Section 105-A regularised the practice of revenue officers determining questions which previously would have been the subject-matter of a Section 106 suit; decisions under Section 105-A embody decisions within scope of Section 106. | The Court relied on this history to support the proposition that where questions under Section 105-A are investigated and determined, the order of the Settlement Officer has, in substance, the character of a decision under Section 106, and thus procedural and fee consequences appropriate to suits should follow. |
| Charusila Dasi v. Mazaffar Shaikh (1932 Cal 674) | Provided guidance as to the principle for determining the value of a memorandum of appeal under Section 7(ii) of the Court-fees Act. | The Court adopted the principle laid down in Charusila Dasi for valuing the appeals before the Special Judge: specifically, the ad valorem fee should be computed on ten times the difference between the fair rent claimed before the Revenue Officer and the rent recorded in the Record of Rights, subject to the statutory maximum. |
Court's Reasoning and Analysis
The Court proceeded in stages, addressing first the preliminary objection on appealability and then the proper court-fee and valuation question where Section 105-A issues had been determined.
1. Substance over Form — appealability of rejection of memorandum:
- The Court emphasised that to determine whether an order dismisses an appeal or rejects a memorandum, substance must be looked at rather than form. Although the Special Judge's order was worded as a dismissal, the Judge's intention was to reject the memoranda because they were not properly stamped.
- Statutory framework considered: appeals to this Court lie under Section 109-A (now 115-C) of the Bengal Tenancy Act and are made subject to the provisions of Order 42 of the Civil Procedure Code; Order 42 imports the rules of Order 41 "so far as may be" to appeals from appellate decrees. Rule 3 of Order 41 (which provides for rejection of memorandum of appeal) does not directly apply to the order appealed against.
- By contrast, Section 107, Clause (2) of the Code gives appellate courts the same powers as original courts in respect of suits; Rule 11, Order 7 empowers a trial court to reject a plaint that is not properly stamped if the plaintiff fails to supply the requisite stamps when required. By parity, the Special Judge had power to reject memoranda of appeal for failure to supply requisite stamps.
- The Court cited Jnanada Sundari Shah v. Madhab Chandra for the proposition that conferring original-court powers on an appellate court does not make the appellate court's orders automatically equivalent to original-court decrees; the Court agreed with that observation and concluded that an order rejecting a memorandum of appeal is not appealable to this Court.
2. Treatment of memoranda as petitions for revision:
- Although the Court found that, as a general proposition, no appeal lies to this Court against the Special Judge's order rejecting a memorandum, in the particular facts and circumstances of these cases the Court treated the memoranda of appeal relating to tenancies that had not abated as petitions for revision under Section 115 of the Civil Procedure Code.
3. Court-fee question where Section 105-A issues are determined:
- The Court noted it was not disputed that court-fees for petitions before the Revenue Officer are governed by the notification under Section 105(3) of the Bengal Tenancy Act. The central question was whether that notification applies to memoranda of appeal before the Special Judge or whether the Court-fees Act prescribes the fee.
- The appellant relied on the old Full Bench decision (Upadhya Thakur) to argue memoranda of appeal should not attract ad valorem fees under Schedule 1 of the Court-fees Act. The Court analysed the historical development: introduction of Section 105-A (amending Act of 1907), subsequent notifications under Section 105(3) (1918 and 1922), introduction of Section 105-B, and rules (Rule 60 (9) and (10)) treating decisions under Section 105 and 105-A as having force of a decree and as part of the same proceedings.
- Because the character of proceedings under Section 105 in which Section 105-A issues are determined has changed by legislation and notification, the Court held that Upadhya Thakur (1896) cannot be applied to appeals to the Special Judge where questions specified in Section 105-A have been investigated and determined.
- Consequently, for memoranda of appeal before the Special Judge that relate to decisions where Section 105-A questions were decided, those memoranda fall within Article 1, Schedule 1 of the Court-fees Act and require ad valorem court-fees (subject to the maximum of Rs. 20), in addition to the 12-anna stamp provided by notification under Section 105(3).
4. Valuation principle for ad valorem fee:
- The Court adopted the valuation principle from Charusila Dasi v. Mazaffar Shaikh and directed that the ad valorem court-fee be computed on ten times the difference between the fair rent claimed before the Revenue Officer and the rent recorded in the Record of Rights, subject to the statutory maximum of Rs. 20; the appellant is therefore liable to pay 12 annas plus this ad valorem fee for each khatian in respect of which Section 105-A issues were determined and the appeal has not abated.
5. Administrative directions:
- The Court directed the stamp reporter to report the additional court-fee payable in the Revenue Officer's Court and before the Special Judge in accordance with the decision, and also to report the additional court-fee payable on the memoranda of appeals treated as petitions for revision under Section 115, Civil P. C. Further orders were to be made after the reporter's report.
Holding and Implications
Core Holding: The Court held that no appeal lies to this Court against an order of the Special Judge that, in substance, rejects a memorandum of appeal for failure to supply requisite stamps.
Implications and direct consequences:
- Despite the non-appealability ruling, in the particular cases before it the Court treated the memoranda of appeal (insofar as they related to tenancies that had not abated) as petitions for revision under Section 115, Civil Procedure Code, and proceeded to determine the court-fee question and to give directions accordingly.
- For memoranda of appeal before the Special Judge that involve determination of issues under Section 105-A, the Court held that the stamp requirement is: (a) a stamp of 12 annas per tenancy (as per notification under Section 105(3)) plus (b) an ad valorem fee under Article 1, Schedule 1 of the Court-fees Act, computed on ten times the difference between the fair rent claimed and the rent recorded, subject to a maximum of Rs. 20 for each khatian.
- The Court directed the stamp reporter to calculate the additional fees payable and to report; further orders would follow on that report.
Specific directions and disposition in the individual appeals (as recorded by the Court):
- S.A. 1069 of 1932: The appellant was directed to deposit Rs. 3 (the deficit court-fee) within one week. On such deposit the judgment and decree of the Special Judge would be set aside and the case remitted to the Special Judge for hearing on merits according to law; costs in this Court to abide the result. Hearing fee: one gold mohur. If the deficit fee were not paid, the Special Judge's order would be affirmed without costs. A petition of compromise filed in this Court would be sent to the Special Judge to be disposed of according to law if the deficit fee were paid.
- S.A. 1070 of 1932: The appellant's counsel stated the client did not wish to proceed with applications for certain khatians (other than Khatians Nos. 10, 19, 150, 171, 203, 206). Consequently, the judgment and decree of the Special Judge were affirmed without costs as to those khatians; for Khatians Nos. 10, 19, 150, 171, 203 and 206, the landlord would receive fair and equitable rent at the rates mentioned in the petitions of compromise.
- S.A. 1071 of 1932: The appellant's counsel stated the client did not wish to press applications except for Khatians Nos. 121 and 160. The applications in respect of the other khatians were dismissed. For Khatians Nos. 121 and 160 the appellant would receive fair and equitable rent at the rates mentioned in the petitions of compromise. There was no order as to costs in that case.
1. The appellant in these three appeals filed three applications under Section 105, Ben. Ten. Act, before the Revenue Officer of Rampurhat in the district of Birbhum for settlement of fair and equitable rent of certain holdings. Before the Revenue Officer she raised the following issues under section 105-a: (1) Are the holdings in dispute, though recorded as Mokrari in the record of rights, occupancy holdings? (2) Are the rents recorded in the record of rights the existing rent of the holdings? (3) Is she entitled to get additional rent for excess area? She paid Court fee of 12 annas for each of the holdings mentioned in her application and Rs. 20 for each of the three applications. The Revenue Officer decided against her. She filed three appeals before the Special Judge of Birbhum and paid the same Court-fee on the memoranda of appeals as she did on her applications before the Revenue Officer. The learned Judge treated the appeals as appeals arising out of suits under Section 106, Ben. Ten. Act, and demanded additional Court-fees. The appellant having failed to comply with the order of the Judge her appeals have been dismissed. She appeals to this Court. In her Memorandum of appeals to this Court she has paid the same Court.fees as before the Special Judge.
2. During the pendency of the appeal to this Court respondent 9 in Section A. No 1069, respondents 17, 18, 45, 48, 72 and 73 in Section A. No. 1070, respondents 10, 13, 24, 41, 44, 59, 62, 66 and 94 in Section A. No, 1071 died. Their heirs were not substituted within the time prescribed by law. The appellant's claim for fair rent in respect of the following Khatians is therefore dismissed.
Appeal No. Khatian No. S. A. No. 1069 of 1932 114 S. A. No. 1070 of 1932 15 18 66 133 S. A. No. 1071 of 1932 23 31 35 39 71 191 202
3. A preliminary objection has been taken to the hearing of these appeals on behalf of the respondents on the ground that the order of the learned Special Judge though in form an order-of dismissal, is in substance an order of rejection of memoran dum of appeals, and no appeal lies against such an order. In order to determine whether an order dismisses an appeal or simply rejects it, the substance and not the form of the order is to be considered. The order of the Special Judge is not accurately expressed because it states that the appeals are dismissed and not that the memorandum of appeals are rejected. It is however clear that the intention of the Judge was to reject the memorandum as they were not properly stamped. The learned advocate for the appellant however contends that an appeal lies against an order rejecting a memorandum. Now an appeal to this Court against the decision of the Special Judge lies under Section 109-A (now 115-C), Clause (3), Ben. Ten. Act. That clause lays down that such an appeal is subject to the provisions of Order 42, Civil P. C. Order 42 of the Code lays down that the rules of Order 41 shall apply so far as may be to appeals from appellate decrees. The order appealed against does not come under Rule 3, Order 41 which provides for rejection of memorandum of appeal. But by Section 107, Clause (2) of the Code the appellate Court has the same powers as the Court of original jurisdiction in respect of suits instituted therein. By Rule 11, Order 7 of the Code, the trial Court has been empowered to reject a plaint if the plaint is not properly stamped and the plaintiff being required to supply the requisite stamps fails to do so. The Special Judge therefore had power to reject the memorandum of appeal for failure of the appellant to supply the requisite stamps. The question then is whether the order is appealable. In Jnanada Sundari Shah v. Madhab Chandra 1932 Cal 482, Suhrawardy, J. observed:
Section 107 (2) invests an appellate Court with the same powers as are conferred on a Court of original jurisdiction. It does not purport to give the order passed by an appellate Court the same effect as an order passed by an original Court of like nature. Section 2 expressly says that "decree" shall be deemed to include the rejection of a plaint. If it was the intention of the Legislature to include within the definition of `decree' an order rejecting a memorandum of appeal it would have expressly said so.
4. With these observations I respectfully agree. Section 109 (3), Ben. Ten. Act makes the provision of Order 42 applicable to the appeals to this Court. By implication the provisions of Order 41 are attracted. Even if the provisions of order 43 also are attracted, an order rejecting a memorandum of appeal is not appealable under its provisions. As at present advised I am inclined to think that an appeal arising out of a proceeding under Section 105 against the decision of the Special Judge lies to this Court when there has been an investigation and determination by him of any of the questions under Section 105-A.
5. I am therefore of opinion that no appeal lies to this Court against the order of the special Judge. But in view of the facts and circumstances of these cases we treat the memorandum of appeals to this Court so far as they relate to the tenancies in respect of which the appeals have not abated as petitions for revision under Section 115, Civil P. C. The point for determination in these cases is what was the court-fee payable on memorandum of appeals before the Special Judge in respect of the Khatians other than those in respect of which the claim for additional rent has been dismissed by us. It was not disputed at the bar that the amount of court-fee payable for the petitions before the revenue officer is governed by the notification under Section 105 (3), Ben. Ten. Act. It is however argued by the learned advocate for the appellant that the notification does not apply to appeals and that for determining the court-fee payable we must look to the Court-fees Act. It is also argued that the memorandum of appeal before the Special Judge do not come under Article 1, Schedule 1, Court-fees Act and that they came under Article 1, Clause (b), Schedule 2 of the same Act. In support of this contention the learned Advocate relied upon a Full Bench decision of this Court: Upadhya Thakur v. Persidh Singh (1896) 23 Cal 723 (F B). This ruling is of the year 1896. In that case it was held that no memorandum of appeal was required before the Special Judge in an appeal arising out of a proceeding for settlement of rent under Section 104 (2), Ch. 10, Ben. Ten. Act of 1885 as it stood then inasmuch as the prooeeding under that section was not a suit. The reasons given for this decision are these:
6. (1) The proceeding was instituted by an application and not by a plaint. (2) The application was not subject to an ad valorem court-fee. (3) The provisions of section 107, (old act) did not prescribe that the decision of the revenue officer in such proceeding would be a decree. It has the force of a decree which it might have without the proceeding necessarily becoming suit. (4) None of the rules framed by the Local Government under Section 189 (1) of the Act laid down that such a proceeding would be a suit. (5) The rule framed by the Government to the effect that such a proceeding should be dealt with as a suit in respect of its procedure did not make them suits for purposes of court-fees as Section 189 of the Act did not authorize the Government to make rules about court-fees. Ch. 10, Ben. Ten. Act of 1885 has been greatly modified from time to time after the Full Bench decision by amending Acts. Government have now obtained power from the legislature to fix court-fees for proceedings for settlement to fair and equitable rent: see section 105 (3). section 105-a has been introduced. Mukherjee, J., while stating the history of the introduction of this section in Jnanda Sundari v. Abdul Rahman 1916 Cal 413 decided by a Full Bench of this Court, observed as follows in the year 1916:
Section 105 did not by itself in its original form contemplate an investigation into the question of the correctness of entries in the Record of Rights; yet a practice had grown up in proceedings under that section to decide questions which the legislature contemplated should be determined by a suit under Section 106. To put up the matter in another way the parties were placed in the same position as if a suit under Section 106 and a proceeding under Section 105 has been simultaneously instituted and consolidated and an amalgamated trial held for the investigation of the question of fair and equitable rent. This led to the introduction of Section 105-A which regularises the practice that gradually developed; and the revenue officers while seized of proceedings under Section 105 were expressly authorized to determine questions mentioned in Section 105-A which in ordinary course would form the subject of an enquiry under Section 106 * * * * It follows accordingly that if in any proceeding under Section105 questions under Section 105-A have been investigated and determined, the order of the Settlement Officer, though in form an order which settles a fair and equitable rent does in substance embody a decision ofquestion within the scope of Section 105-A and consequently of Section 106. .... We cannot be invited to sacrifice substance to form, to look merely at the label and not the contents of the adjudication.
7. Before the introduction of Section 105-A by the amending Act of 1907, by a notification of the year 1899 a court-fee stamp of 8 annas was payable on application under Section 105 which replaced Section 104 (2) of the old Act in the year 1898. By the notification of the year 1918 and 1922 under Section 105 (3), Ben. Ten. Act, court-fees payable were fixed thus: (a) A stamp of 12 annas for each tenancy which is the subject-matter of an application under Section 105. (b) An ad valorem fee chargeable under Article 1, Schedule 1, Court Fees Act subject to a maximum of Rs. 20 in addition to the stamp of 12 annas for adjudication of issues mentioned in Section 105-A. By the notification under Section 35, Court Fees Act the court fee payable for a suit under Section 106 is exactly the same as for trial of issues specified in Section 105-A in a proceeding under Section 105. This has been made clear by the introduction of Section 105-B in Ch. 10, Ben. Ten. Act. Section 107 of the Act as it stood before its amendment in 1898 laid down that the decision in a proceeding for settlement of rent should have the force of a decree. The decision under Sub-section 105 and 105-A have now the force and effect of a decree of a civil Court in a suit between the parties. By Rule 60 (9) and (10) of Government rules framed under the Act the entry made in the decision of the Revenue Officer and schedule attached thereto with regard to the fair rent settled shall be held to be a decree and a proceeding under Section 105-A shall be considered as a part of the proceedings under Section 105.
8. Before 1898 there was no provision in Ch. 10 corresponding to Section 109 which was introduced by the Amending Act of 1898. After the introduction of Section 105-A proceedings under Sub-section 105 and 105-A are now under the operation of Section 109. Under Section 108 (3) of the Act as it stood before 1898 though there was a second appeal to this Court from the decision of a special Judge in a suit under Section 106, there was no second appeal to this Court from the decision of the special Judge in a proceeding under Section 104 (2). Section 109-A (now Section 115-C after amendment in 1928) which has replaced the old Section 108 gives a right of second appeal if the decision of the special Judge is not a decision simply settling rent but a decision determining questions within the scope of Section 105-A and consequently of Section 106. By successive legislation and notification after the Full Bench decision in Upadhaya Thakur's case (2) the character of a proceeding under Section 105 in which questions mentioned in Section 105-A are investigated and determined has now been changed, The decision on questions specified in Section 105-A is for all practical purposes a decision under Section 106. The ruling in Upadhaya's case (2) therefore cannot in my opinion apply to appeals before the special Judge against the decision of the Revenue Officer determining questions specified in Section 105-A. For such appeals memorandum of appeals within the meaning of Article 1, Schedule 1, Court-fees Act, are required and the Court-fees payable on such memorandums are ad valorem on the value of the subject matter of dispute in appeal subject to a maximum of Rs. 20.
9. The next question is what is the value of the subject matter of dispute in the appeals before the special Judge. In determining the value under Article 1, Schedule 1 we have got to look to the principles laid down in the sections of the Act. in view of the decision of the Court to which the appellant was a party i.e. Charusila Dasi v. Mazaffar Shaikh 1932 Cal 674 the principle laid down for determining the value of memorandum of appeals in suits under Section 7 (ii), Court-fees Act should be adopted in valuing the appeals before the special judge in these cases. The appellant is therefore liable to pay a court-fee of 12 annas plus ad valorem fee on ten times the difference between fair rent claimed before the revenue officer and the rent recorded in the record of rights subject to a maximum of Rs. 20 for each of the khatiana.
10. We therefore direct the stamp reporter to report what would be the additional court-fee, which was payable in the Court of the revenue officer and the Special Judge in accordance with our decision in the cases for the khatians other than those in respect of which the claim has been dismissed by us. The stamp reporter is also directed to report what amount of additional court-fee would be payable on the memorandums of appeals treated as petitions for revisions under Section 115, Civil P. C. Further orders in these cases will be made as soon as the report of the stamp reporter is submitted.
Henderson, J.
11. I agree.
12. S. A. 1069 of 1932: The appellant is directed to deposit Rs. 3 that is, the deficit court-fee, within a week from this date. On such deposit being made, the judgment and decree of the Special Judge will be set aside and the case will be sent back to him for hearing on the merits according to law. Costs in this Court will abide the result. Hearing fee one gold mohur. If however the deficit court-fee be not paid as directed above, the order of the Special Judge will be affirmed without costs. The petition of compromise filed in this Court will also be sent to the Special Judge for being disposed of according to law, if the deficit court-fee be paid as directed above.
13. S. A. 1070 of 1932: The learned advocate for the appellant states that his client does not want to proceed with this application for settlement of fair and equitable rent in respect of the Khatians other than Khatian Nos. 10, 19, 150, 171, 203, 206. The judgment and decree of the Special Judge in respect of those Khatians are therefore affirmed without costs. As regards the other Khatians, that is, Khatians Nos. 10, 19, 150, 171, 203 and 206, the landlord will get fair and equitable rent at the rate mentioned in the petitions of compromise.
14. S. A. 1071 of 1932: The learned advocate for the appellant states that his client does not want to press his application for settlement of fair and equitable rent so far as the Khatians other than Khatians Nos. 121 and 160 are concerned. The application for settlement of fair and equitable rent in respect of those Khatians is therefore dismissed. As regards the remaining Khatians that is, Khatians Nos. 121 and 160, the appellant will get fair and equitable rent at the rate mentioned in the petitions of compromise. There will be no order for costs in this case.
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