Madana Mohana Naiko v. Krupasindhu Naiko (Dead) And Others S

The Bench consisting of Cornish and Varadachariar, JJ. made the following

ORDER OF REFERENCE TO THE FULL BENCH

(Delivered by Varadachariar, J.)

In this case, a question as to the scope of Cl. (2) of S. 12 of the Court-fees Act has been raised, under the following circumstances. The plaintiff who sued for partition valued the suit for purposes of jurisdiction at Rs. 6000 but he paid a Court-fee of Rs. 100 only under Art. 17-B of the Court-fees Act. An issue (No. 10) was raised as to whether the Court-fee paid was correct; the lower Court, without any discussion, held it was correct.

As the suit was decided against the plaintiff, he filed an appeal here, valuing the appeal at Rs. 6,000 but again paid a Court-fee of Rs. 100 only. When the matter came before us, we held that Court-fee should be paid on an ad valorem basis, under S. 7(iv)(b) of the Court-fees Act and the appellant has accordingly paid in the amount required to make up the fee payable on the valuation of Rs. 6,000. With reference to the additional fee payable on the same basis in the lower Court Mr. Jagannadha Doss has contended that the case does not fall under Cl. (2) of S. 12 of the Court-fees Act and the plaintiff cannot now be called upon to pay the additional fee.

The argument was based on certain decisions of this Court and of the other High Courts relating to the provision as to finality in the concluding part of the first clause of S. 12. As the question raised is one of some general importance we gave notice to the Government Pleader and have had the benefit of an argument on behalf of the Government. Though we do not feel much doubt as to the true construction of Cl. (2), we have preferred to refer the matter to a Full Bench, because our view may seem to restrict or qualify the language employed in the judgment of the Full Bench in Lakshmi Amma v. Janamajayan Nambiar(1).

Beginning with Annamalai Chetti v. Lieut Col. J.G Cloete(2) this Court has consistently held that the concluding words of Cl. (1) of S. 12 do not preclude an appeal by a party when the question raised relates not to ‘valuation’ in the narrow sense of amount but to the ‘category’ in which a suit is to be placed for the purpose of determining the Court-fee. The view taken in Annamalai Chetti v. Lieut Col. J.G Cloete was affirmed by a Full Bench in Lakshmi Amma v. Janamajayan Nambiar. Mr. Jagannadha Doss argues that the expression “that said question” in Cl. (2) of S. 12 must be interpreted in the light of these decisions, that an appellate Court can act under this clause only when there has been an error in the lower Court's determination of the amount at which the subject-matter of the suit should be valued and that where, as in the present case, the lower Court has erred in determining the ‘category’ in which a suit is to be placed, the appellate Court cannot invoke this clause and require the party to pay the additional fee required to make up the proper fee payable on the plaint in the lower Court. We are not prepared to accept this contention.

The decisions above referred to do not proceed on the footing that the word ‘valuation’ will not comprise the question of category as well as the question of amount. Indeed, under the opening words of Cl, (1), it is the duty of the Court to decide both classes of questions; the question of category will fall to be decided on the construction of the plaint and the question of amount may have to be determined after an investigation under Ss. 9 and 10 of the Act. But in pursuance of the principle that Court-fee is primarily a question of revenue and not a matter in dispute between the parties, the legislature thought it right to exclude a right of appeal in such matters and hence provided that the decision of a Court under Cl. (1) of S. 12 “shall be final as between the parties.” Difficulties arose in reconciling this provision with the provision in the Civil Procedure Code giving a right of appeal against an order rejecting a plaint for non-payment of the proper Court-fee. The High Courts have sought to reconcile the two provisions by holding that the finality enacted by S. 12 Cl. (1) of the Court-fees Act must, in view of the right of appeal given in the Code, be restricted to cases where the decision of the lower Court relates to the question of amount and not to the question of category. It is unnecessary for us to say anything as to the correctness or otherwise of this line or reasoning. But we think that the language employed in the decisions dealing with this question must be understood with reference to the question then under consideration and not extended to cover the interpretation of Cl. (2) of S. 12 which has been enacted with a wholly different purpose in view, namely, the protection of the interests of the revenue.

Even as a matter of construction, it seems to us that the expression ‘said question’ in Cl. (2) refers back to the expression ‘every question’ in the opening part of the first clause and if the opening words of Cl. (1) will compromise both sets of questions, namely, amount as well as category, we see no reason why the same scope should not be given to Cl. (2) as well. The last few words of Cl. (1) are really parenthetical and there is no reason why Cl. (2), should be read as a proviso to the main provision in Cl. (1). It is true that a fiscal enactment should be interpreted according to the natural meaning of the words employed but there is no more justification for restricting their natural meaning than for widening it. If by reason of the collocation of the provisions there is any room for ambiguity, it seems to us legitimate to have due regard to the fact that the purpose of Cl. (2) is to protect the interests of the revenue.

In Shama Soondary v. Burro Soondary and in Lakshmi Ammal, In re the power of the appellate Court to take action under S. 12 Cl. (2) in circumstances like those of the present case was recognised, but the question was not raised or considered in its present form. The observations of the Privy Council in Rachapp Subba Rao v. Shidappa Venkat Rao(3) and the decision of this Court in Tekana Kavandan v. Alagiri Kavandan(4) no doubt affirm the differentiation between the interests of the revenue and the rights of the parties, but they do not throw much light on the present aspect of the question, nor are the decisions in Raj Rajeswari Jin v. Gati Krishna(5) and Baijnath v. Dhani Ram(6) of much help in this connection.

We may add that it has been contended on behalf of the Government that even if Cl. (2) of S. 12 should be construed in the manner suggested on behalf of the appellant, the appellate Court may insist on the payment of the deficient fee even in respect of the lower Court, either under S. 28 of the Court-fees Act or in the exercise of inherent power. We are not much impressed with this argument but as we are referring the question to a Full Bench, we have thought it right to refer to the argument. We refer the following question for the opinion of a Full Bench.

“Has an appellate Court power to require a party to make good the deficiency in the Court-fee payable by him in the lower Court in cases in which the lower Court has expressly or impliedly decided the question of the category in which the suit ought to be placed for purposes of Court-fee but such decision is in the opinion of the appellate Court erroneous.”

This appeal coming on for hearing in pursuance of the aforesaid order of reference to a Full Bench, and upon hearing the arguments of Mr. S.A Seshadri Ayyangar for Mr. B. Jagannadha Das, Advocate for the Appellant and of Mr. K.S Champakesa Ayyangar for the Government Pleader on behalf of the Government, the Court expressed the following:

OPINION

(Delivered by the Officiating Chief Justice).

The question of law referred to the Full Bench for determination is interesting and not covered by authority. When the appeal came to be heard by the referring Judges, it was found that the Court-fee paid on the memorandum of appeal was deficient and an order was thereupon made directing that the proper amount should be paid. So far the case presented no difficulty, but the question arose whether the learned Judges could require the appellant to pay the proper Court-fee in the Court of first instance. The doubt that has arisen, which has lead to this reference may be expressed as follows. S. 12 of the Court-fees Act runs thus:

“(i). Every question relating to valuation for the purpose of determining the amount of any fee chargeable under this chapter on a plaint or memorandum of appeal shall be decided by the Court in which such plaint or memorandum, as the case may be, is filed, and such decision shall be final as between the parties to the suit.

(ii) But whenever any such suit comes before a Court of appeal, reference or revision, if such Court considers that the said question has been wrongly decided to the detriment of the revenue, it shall require the party by whom such fee has been paid to pay so much additional fee as would have been payable had the question been rightly decided, and the provisions of S. 10, paragraph 11, shall apply.

It seems to have been argued, that in what is termed ‘valuation’ two different things are involved, first, the fundamental question of category and secondly, the question of appraisement, and, that it has been held in numerous decisions that the finality contemplated in the first sub-section, attaches to a decision relating to appraisement as distinguished from category. The next step in the argument seems to be, that the words “the said question” in the second part must receive the same interpretation as the expression “every question relating to valuation” in the first part and if that be so, when the decision relates to category, it does not attract the operation of the second part and the appellate Court cannot therefore make an order directing the deficiency to be made good. This contention appears to us to involve a fallacy. The words “every question” are of a comprehensive nature and there seems to be no reason why they should be construed in the restrictive sense suggested; indeed, some at any rate of the decided cases show that the view that a decision relating to category is not final, is not based upon any such limited construction. True, that in Annamalai Chetti v. Lieut-Col. J.G Cloete the learned Judges place upon the words the narrow meaning. They observe,

“In our judgment the terms of the 12th section ought not to receive a larger interpretation than they fairly admit of. They do not declare the decision of the Court in which the plaint or appeal is filed final on all questions which may arise respecting the Court-fee but on every question relating to valuation for the purpose of determining the amount of the Court-fee,”

It is difficult to see, as observed in Muhammad Sadik v. Muhammad Jan, how a Court could determine the amount without deciding the question as to the relief sought (i.e, the category to which a particular suit belongs) and how yet the relief sought is to be deemed as not comprised in the question relating to the valuation (at page 93). On the other hand, in a later case on the point, namely, Lakshmi Amma v. Janamajayan Nambiar, the learned Judges proceeded upon the footing that the word ‘valuation’ comprises both the factors, i.e, the category as well as the computation of value. Having said so, they felt constrained to hold, in view of certain provisions of the Civil Procedure Code, that the question of valuation should be viewed in two aspects for the purpose of deciding when a decision as to valuation is final and when appealable. They ultimately decided that when the mistake made by the Judge relates to the category, an appeal lies and not when it relates to the computation. Whether the 1877 Code, which was then under consideration, warrants this conclusion, is a matter open to doubt, but it is not at present within our province to express any final opinion on that point. The difficulty felt seems to have been, as to how to reconcile the provisions of the Code relating to appealability with S. 12 of the Court-fees Act. Now let us examine the provisions of the present Civil Procedure Code. O. 7, R. 11 shows that the question of deficient Court-fee can be viewed not only in two, as assumed in Lakshmi Amma v. Janamajayan Nambiar, but in three aspects. Cl. (b) refers to the case where the relief claimed is under-valued; this comprises both the category and the computation. Under Cl. (c) the mistake relates neither to category nor to appraisement; the valuation in both these aspects having been properly made, the plaint is nevertheless written upon an insufficiently stamped paper. R. 11 provides that the plaint shall be rejected when the plaintiff being required to make good the deficiency fails to do so. The rejection of a plaint under S. 2 amounts to a decree and is appealable under S. 96. Were the matter res integra, it does not seem to us impossible to reconcile these provisions with S. 12 of the Court-fees Act, giving full effect to both the statutes. The present trend of decisions seems to be that where a plaint is rejected under Cl. (b) of O. 7, R. 11, the order rejecting the plaint is not appealable when the order is based on a question of valuation pure and simple; but if the order involves a decision of the category to which a suit belongs, the order is appealable. As we have said, this view is the result of the endeavour to reconcile the Code with the Court-fees Act, but is it really necessary to take such a view? One might suggest that if the decision under S. 12 of the Court-fees Act leads to a rejection of the plaint under the Code, then such a rejection, amount as it does to a decree, ought in all cases to be appealable; but where the decision does not lead to a rejection of the plaint, there is no reason why finality should not in every case attach to that decision. In this way, as we have observed, both the statutes can be reconciled. To explain what we mean, let us take this example. Supposing the Court decides that the proper Court-fee has been paid, that decision should be final as between the parties and it should not be open to the defendant to question it. Again, let us suppose that the Court decides that the Court-fee paid is deficient and requires the plaintiff to make good the deficiency and he complies with that order; here no question of the rejection of the plaint can arise and the decision as between the parties ought to be final. As we have said, however, this is not a matter which directly arises under the present reference, but the discussion is relevant in this way. It shows that the view taken in the numerous cases as to appealability does not necessarily rest upon the restrictive construction suggested of the opening words of S. 12. We have already referred in this connection to Lakshmi Amma v. Janamajayan Nambiar. The only ground urged therefore disappearing, we can see no ground which would justify us in giving to the words “the said question” in the second part the limited meaning contended for. Though the question has been pointedly raised here for the first time, we may observe that our attention has been drawn to numerous cases where it was assumed, without discussion, that the High Court acting under S. 12(ii) has power to require the plaintiff to bring the additional fee payable in the lower Court even where its decision was as to category as distinguished from computation.

Our answer to the question is therefore in the affirmative.

N.R.RQuestion answered in the affirmative.