Sir John Edge, C.J:— Before considering the questions referred to this Full Bench for an expression of our opinion, I shall state as briefly as I can what I now understand to be some of the material facts and dates in this case. It is contended on behalf of some of the persons who were defendants in a suit which was decided by the Subordinate Judge of Gorakhpur adversely to the defendants, that this is a legally admitted appeal from the original decree in that suit, presented according to law and within time by them. On the other hand, it is contended by the plaintiffs in the suit, in whose favour the decree was, that no appeal from the original decree in the suit was legally presented within time or at all, and that what the defendants in the suit say is an appeal, is not in law an appeal which can be heard. For the sake of brevity only I shall call the document which was tendered to this Court as the memorandum of appeal a memorandum of appeal, and I shall refer to the defendants as the appellants and to the plaintiffs as the respondents.
The decree below was made on the 14th September 1887. The document which it is contended on behalf of the appellants is in law a memorandum of appeal from that decree, was tendered to my brother Brodhurst for admission on the 9th November 1887. It then bore a stamp of the value of Rs. 10 only. When it was tendered to my brother Brodhurst it bore upon it a report by Dip Chand, who was then the officer whose duty it was, within the meaning of s. 5 of the Court-fees Act, 1870, to see that a fee was paid under chapter II of that Act. That report had been made on the 7th November 1887, and was, so far as is material, as follows:— “Report will be made on the receipt of record.”
On the 9th November 1837, my brother Brodhurst endorsed on the document an order in the following words:— “Admit, subject to stamp report.”
[134] That is a form of order which in such cases I have been in the habit of making, and which I have always understood to be a conditional order of admission, conditional in the sense that if the stamp report when made showed that the stamp on the memorandum of appeal was sufficient, the appeal was thereupon admitted; but that if it showed that the stamp was insufficient, my order did not operate as an order of admission.
After my brother Brodhurst had made his order and on the same day, that is, on the 9th November 1887, the memorandum of appeal was received by the office and the appeal was entered in the register of first appeals. On the 27th September 1888, Dip Chand made his stamp report. That report was to the effect that Rs. 625 was the proper amount of court fee payable upon the memorandum of appeal; and that, as only Rs. 10 had been paid upon it, there was a deficiency of Rs. 615.
As Dip Chand is absent on sick leave, and as the then taxing officer is no longer an officer of the Court, having been promoted, it is impossible to ascertain when first that report of Dip Chand of the 27th September 1888 came to the notice of the appellants or of their vakil.
On or prior to the 2nd November 1888, the question of the correctness of the report of Dip Chand came before the then taxing officer, as I find that on the 9th November 1888 he made in the matter an order in writing in the following terms:— “See order in connected case. Deficiency must be made good.”
The order in the connected case was as follows:— “The decree gives consequential relief, and deficiency must be made good.”
Immediately below that order of the then taxing officer, Munshi Kashi Prasad, the vakil who was acting for the appellants, wrote on the 19th November 1888, “Seen,” showing that on that day he had seen the decision of the then taxing officer. That decision of the taxing officer of the 9th November 1888 was accepted on behalf of the appellants as final and conclusive, for on the 8th December 1888 the appellants delivered to the officer of this Court stamps equivalent to the amount of the deficiency which [135] Dip Chand had reported to exist. With the exception of the order of my brother Brodhurst of the 9th November 1887, no order relating to the admission of the appeal was ever made by any Judge of the Court or indeed by any one, nor was the memorandum of appeal ever tendered to any Judge or indeed to any one for admission, except on the occasion when it was tendered to my brother Brodhurst on the 9th November 1887. Memoranda of appeal are not, nor were they, admissible in the Court, except under an order of a Judge.
It has been the practice of this Court to allow time, irrespective of any question of limitation and of the circumstances under which a memorandum of appeal is tendered when insufficiently stamped, to an appellant to make good any deficiency which may be reported to exist in the stamp of a memorandum of appeal, in cases in which the stamp report is accepted as correct by the appellant, and also in cases in which the taxing officer or the Judge appointed for that purpose under s. 5 of the Court-fees Act has decided that the stamp is insufficient. One of the questions involved in this case is whether that practice is in compliance with or in contravention of the law. If it is in contravention of law, the practice was unlawful.
A practice which is in contravention of the law, even if such practice be the practice of a High Court, cannot make lawful that which is unlawful; nor can a practice of a Court justify a Court, in putting upon an Act of the Legislature a construction which is contrary to the plain wording of the Act. If it were otherwise, cases might occur in which an absolutely different construction, based upon practice only, might be placed by this Court, the High Court at Calcutta, the High Court at Madras, the High Court at Bombay and the Chief Court of the Punjab upon a general Act, applicable to the whole of British India, which was susceptible of one construction only. Such a principle of construction in such a case would lead, not to making the law certain, but to confusion and uncertainty.
In order to clear the ground and to keep my mind in the consideration of the important legal questions which arise in this [136] case free from extraneous influences, I shall first refer to the argamentum ad misericordiam, the plea of hardship, which Mr. Kashi Prasad pressed upon us, and which at one time very nearly induced me to overlook what I conceive to the true principles of law which can alone guide us to a safe and legal conclusion. I shall then consider how an appeal can be presented to this Court; what the law requires for the valid presentation of an appeal; whether these requirements have been complied with in this case; and various other points which arose during the arguments, although many of the latter appear to my mind to be irrelevant.
In the course of the argument Mr. Kashi Prasad, pressed upon us the hardship which would result to his clients, the defendants in the suit, if we were to hold that this appeal had not been presented within time. He also contended that in that event that hardship would be the direct result of the omission of the officer of this Court, Dip Chand, whose duty it was to see that fees are paid under chapter II of the Court-fees Act to inform him, Mr. Kashi Prasad, or his clients, before the ninety days allowed by article 156 of the second schedule of the Indian Limitation Act, 1877, had expired, that the stamp upon the memorandum of appeal was insufficient.
In my opinion it was no part of the duty of Dip Chand to advise parties as to the stamp required under the Court-fees Act or to give them notice that they had not sufficiently stamped documents which that Act requires to be sufficiently stamped before they are presented to the Court.
If it were the duty of the officer who has to see that the proper fees are paid, to inform parties or their vakils that the stamps upon which their memoranda of appeal or other papers were tendered to the Court were insufficient, he would require a staff of assistants, which he has not got, and questions of limitation would depend, not upon the law as applied to the acts of the parties or their vakils, but upon our officer doing such duty and his being able to prove that his notice of a deficiency in the stamp had reached either the parties themselves or, if they had vakils, their vakils, within time to allow of the deficiency in the stamp being made good within the period [137] of limitation allowed by law. This in many cases it would be practically impossible for our officer to do, on account of the number of parties, the distance of their homes in most cases from Allahabad, or, where a vakil was engaged in the case, his absence from Allahabad, and the practical impossibility of getting from native litigants acknowledgments that they had received such notices.
Further, a very large percentage of memoranda of appeal is tendered so late that even if our officer was able to ascertain on the day or the day following that, on which a memorandum of appeal was tendered, that the stamp was insufficient, the notice could not reach the parties, or their vakil if they had one, in time to allow of the deficiency in the stamp being made good if such deficiency had to be made good within the period of limitation. It is, in my opinion, the duty of those who tender documents to this Court to see that such documents bear at the time when they are tendered the proper stamps required by the Court-fees Act, and if they neglect that duty either intentionally, as I fear too frequently happens, or through carelessness or ignorance,’ they or their advisers, and not the officers of this Court, are the parties upon whom the blame for the results of such neglect must fall.
We cannot allow any question of hardship to influence us in applying, the principles of construction to Acts of the Legislature where the wording of those Acts is plain and unambiguous. We are not responsible for those Acts, and to put upon those Acts a construction different from that which according to the principles of construction, upon which a Court of justice must act, they bear, would be to depart from our duty as Judges and to arrogate to ourselves the powers and functions of the Legislature. We have to construe the Acts of the Legislature as we find them, whether we approve of them or not,—not to alter or amend them. We have no power to read into the second schedule of the Indian Limitation Act an article which is not there, any more than we have power to read into the Indian Limitation Act or the Court-fees Act or any other Act or Code, a section or words which it does not contain. So far as am I aware, even their Lordships of the Privy Council [138] have no such powers. We have to justify our decisions when they are based on or governed by the Indian Codes, not by extraneous considerations, such as that of hardship, but by distinct reference to the section or article of the Code upon the proper construction of which our decision depends. This is a duty which it is most necessary for us carefully to attend to if we are to avoid causing doubt, perplexity and uncertainty, as to the law in the Courts which are bound to accept our decisions as their guide.
The question as to whether this appeal was presented within time depends, in my opinion, upon the construction of s. 541 of the Code of Civil Procedure, of ss. 4, 5, 25, 28 and 30 of the Court-fees Act (VII of 1870), of s. 4 of the Indian Limitation Act, 1877, and of art. 156 of the second schedule of the last mentioned Act. It will be necessary to refer to some other sections in order to see how far, if at all, many arguments which were addressed to us by way of analogy were well founded.
Under s. 541 of the Code of Civil Procedure, an appeal from an original decree must be made in the form of a memorandum in writing presented by the appellant, and must be accompanied by a copy of the decree appealed against, and (unless the appellate Court dispenses therewith) of the judgment or which it is founded. Such memorandum must set forth concisely and under distinct heads the grounds of objection to the decree appealed against.
S. 548 of the Code of Civil Procedure enacts that “when a memorandum of appeal is admitted, the appellate Court or the proper officer of that Court shall endorse thereon the date of presentation, and shall register the appeal in a book to be kept for that purpose. Such book shall be called the Register of Appeals,” and shows that the memorandum of appeal must be in fact first admitted as a condition precedent to its being endorsed with the date of presentation and to the appeal being entered in the register.
It has been held by the Chief Court of the Punjab, and I think rightly, that an appeal under the Code of Civil Procedure is not presented within the meaning of s. 4 of the Indian Limitation Act, [139] 1877, unless it be accompanied by the copies prescribed by the Code of Civil Procedure: Bhag Singh v. Chandu Singh and Nihal Singh v. Johar Singh(2).
The Court-fees Act, 1870, was, as even its name imports, an Act primarily passed for the purpose of prescribing the fees which are to be paid in respect of documents to be used in Courts. It also provides in the schedules for the stamps to be used in certain offices other than offices of Courts of justice.
That Act not only prescribes the fees, but provides how those fees are to be ascertained, how questions as to the sufficiency of fees on documents, so far as Courts are concerned, are to be determined, and the conditions under which only the documents included in the first and second schedules to the Act may be received, filed, registered or used, as the case may be, in Courts in India. The Court-fees Act also specifies the documents which need not be stamped under that Act for the purpose of being used in Courts. A memorandum of appeal is a document specified in the first and also in the second schedule to the Court-fess Act, 1870, within the meaning of s. 4 of that Act, and is a document which, under s. 25 of that Act, must be stamped with a stamp at least equivalent to the fee chargeable in respect of it under the Act. A memorandum of appeal is consequently a document which ought to bear a stamp under the Court-fess Act, 1870, within the meaning of s. 28 of that Act. It is also a document requiring a stamp within the meaning of s. 30 of the Court-fees Act, 1870.
It follows that in construing ss. 4, 28 and 30 of the Court-fees Act, when the question arises as to a memorandum of appeal, we must read into those sections the words “Memorandum of appeal.”
Thus read for the purposes of construction, s. 4 so far as memoranda of appeals are concerned reads as follows:— “No memorandum of appeal of the kind specified in the first or second schedule to this Act annexed as chargeable with a fee shall be filed, exhibited or recorded in, or shall be received or furnished by, any of the said High Courts in any case coming before such Court in the exercise [140] of its jurisdiction as regards appeals from the Courts subject to its superintendence, unless in respect of such memorandum of appeal there be paid a fee of an amount not less than that indicated by either of the said schedules as the proper fee for such memorandum of appeal.”
Similarly, s. 28 reads thus:—” No memorandum of appeal which ought to bear a stamp under the Act shall be of any validity unless and until it is properly stamped. But if any such memorandum of appeal is through mistake or inadvertence received, filed or used in Court or office without being properly stamped, the presiding Judge or the head of the office, as the case may be, or, in the case of a High Court, any Judge of such Court, may, if he thinks fit, order that such memorandum of appeal being stamped accordingly, the same or any proceeding relative thereto, shall be as valid as if it had been properly stamped in the first instance.”
Similarly, the first paragraph of S. 30 reads thus:— “No memorandum of appeal requiring a stamp under the Act shall be filed or acted upon in any proceeding in any Court or office until the stamp, has been cancelled.” The stamp referred to in s. 30 must mean a sufficient; stamp according to the Act.
We have then s. 4 enacting that no memorandum of appeal, such as that in the present case, shall be filed or recorded in, or received by, any High Court, such as this High Court, unless at least the proper fee in respect of it be paid. We have also s. 28 enacting that no such memorandum of appeal as this shall be of any validity unless and until it is properly stamped.
The second paragraph of s. 28 is of importance in more ways than one, as it emphasizes the provision contained in the first paragraph of that section by providing that in the events therein specified a memorandum of appeal and all the proceedings relative thereto “shall be as valid as if it had been properly stamped in the first instance,” and making it obvious that the intention of the Legislature was that an improperly stamped memorandum of appeal chargeable with a fee under the Act should be treated as an absolutely invalid memorandum of appeal which could not, until it was [141] properly stamped in the events specified in the second paragraph of that section, be the foundation of any valid legal proceeding in any Court. The second paragraph of s. 28 prevents us applying the principle of nunc pro tunc except when an order under that paragraph has been made and complied with.
It has been contended that, although this Court could not legally file, record, receive or act upon the document in question, assuming that it was not properly stamped when tendered, and is bound to treat it as of no validity, yet that this Court must treat it as a document which was on the day on which it was tendered to this Court a memorandum of appeal within the meaning of s. 541 of the Code of Civil Procedure, and regard the appeal as having been presented within the meaning of s. 4 of the Indian Limitation Act to this Court on that day. To do so would, it appears to me, be to treat the document in question as a valid memorandum of appeal for the most important purpose for which a valid memorandum of appeal is required, namely, as the inception or foundation of a valid appeal.
When the Legislature has enacted, that a memorandum of appeal which is not properly stamped shall not be treated as of any validity and shall not be filed or recorded in or received by this Court and shall not be acted upon in any proceeding in this Court, I as a Judge of this Court, who have to obey the mandates of the Legislature and have not power to legislate, can only regard and deal with an improperly stamped memorandum of appeal as the Legislature has said that it must be regarded and dealt with.
Further, as a Judge who is bound by the statute law as I find it, I cannot hold that any practice of this Court which not only is not known to, but has not been sanctioned by, the Legislature, entitles me to treat for any purpose as valid a document which the Legislature has enacted shall not be “of any validity.” To do so in this case would be to treat a memorandum of appeal as a document which was not specified in either of the schedules to the Court-fees Act.
I fail to understand how an invalid memorandum of appeal, which in law must be regarded as no memorandum of appeal at all, [142] can, except in the events specified in the second paragraph of s. 28 of the Court-fees Act, be treated as a valid memorandum of appeal, or how the tendering to this Court of a memorandum of appeal which was of no validity, can be regarded as the presentation of an appeal for the purposes of the Indian Limitation Act, 1877, or for any other purpose.
In my opinion an appeal cannot be said to be presented within the: meaning of s. 4 of the Indian Limitation Act, 1877, when the only presentation of the appeal is the tendering to the Court of a document which the Legislature has specifically enacted shall not be regarded by a Court as of any validity, and that the tendering to my brother Brodhurst on the 9th November 1887 of a document which the law says shall be regarded as of no validity was no more a presentation of an appeal than would the tendering to him of a blank piece of paper have been a presentation of an appeal. In one case he could see nothing on the paper; in the other case the law had forbidden him to see anything on it.
It has been contended that, inasmuch as this document is now sufficiently stamped, we may apply the principle of nunc pro tunc and treat it as if it had been properly stamped in the first instance, that is, at the time when it was tendered to this Court, and my brother Brodhurst made his order of the 9th November 1887, and give effect to it as if it was when tendered on the 9th November 1887, a valid memorandum of appeal. That I cannot do without doing violence to the plain wording of s. 28 of the Court-fees Act. Although the proper stamps have since been put upon the memorandum of appeal, that was not done under any order of any Judge of this Court. Indeed, no application was ever made to any Judge of this Court or to any one else to make any such order. So far as this Court is concerned, no one but a Judge of this Court could make such an order under s. 28 of the Court-fees Act, nor could any Judge of this Court make any such order unless the memorandum of appeal had through mistake or inadvertence been received, filed or used in this Court or its office without being properly stamped. The words “mistake or inadvertence “limit the cases in which a [143] Judge of this Court can make an order under s. 28 of the Court fees Act, 1870.
The “mistake or inadvertence” in s. 28 must mean mistake or inadvertence on the part of the Court or its officers, and not mistake or inadvertence on the part of an appellant or his advisers, who do not act for the Court in the receiving or filing or using of a memorandum of appeal in the Court. If the “mistake or inadvertence” is to be read as the mistake or inadvertence of the party, it would in the great majority of cases be impossible for a Judge to ascertain whether the receiving, filing or using of an improperly stamped document was owing to the mistake or inadvertence of the party or to his intentional act in an attempt to escape having to pay the proper fee at the proper time or at all.
For the contention that as sufficient stamps in value have since the document was tendered been affixed to it, although not under an order under s. 28 of the Court-fees Act, it is to be treated as if it was when tendered on the 9th November 1887 a valid memorandum of appeal for the purpose of limitation, and that we are to hold that the appeal was on that day presented within the meaning of s. 4 of the Indian Limitation Act, 1877, Mr. Kashi Prasad, for the appellants, relied upon the following cases:—Ram Lal v. Harrison; Sheo Partab Narain Singh v. Shed Gholum Singh; Syed Ambur Ali v. Kali Chund Dass; Musammat Begee Begum v. Syed Yusuf Ali(3) and Musammat Chouwara v. Wasil Khan(4), but mainly upon Skinner v. Orde(5) in the Privy Council. As the case of Skinner v. Orde was a case decided by their Lordships of the Privy Council arid, as we were mainly pressed with it by Mr. Kashi Prasad, I shall consider it first to see how far, if at all, it bears upon the present contention. It is to be observed that the petition to sue as a pauper in that case was when presented properly stamped, in accordance with law, with an eight anna stamp, and was consequently a document which the Court, was not prohibited from receiving by the Court-fees Act, 1870. In Skinner v. [144] Orde their Lordships of the Privy Council held that on the full stamp for a plaint having been paid, that document, which had been, properly received as a petition to sue as a pauper, might be treated as the, plaint in a suit by a person no longer a pauper. In that case their. Lordships said:— “To be logical, the Court should have rejected it altogether. The petition of plaint was placed upon the file and numbered on the 19th July 1873, and this is the plaint that is allowed to go on. Although the analogy is not perfect, what has happened is not at all unlike that which so commonly happens in practice in the Indian Courts, that a, wrong stamp is put upon the plaint originally and the proper stamp is afterwards affixed. The plaint is not converted into a plnint from that time only, but remains with its original date on the file of the Court, and becomes free from the objection of an improper stamp when the correct stamp has been placed upon it.
“The case, which is not provided for by the Act, approaches more nearly to the state of things contemplated by s. 308 than that contemn plated by s. 310. There are no negative words in the Act (the then Code of Civil Procedure) requiring the rejection of the plaint under circumstances like the present, nor anything in it's enactments, which would oblige their Lordships to say that this petition, which contains all the requisites which the statute requires for aplaint, should not, when the money has been paid for the fees, be considered as a plaint from the date that it was filed.”
I infer from the passage which I have just quoted that if there had been any negative words in the Act requiring the rejection of the plaint or anything in its enactments requiring their Lordships, to say that the petition should not, when the money had been paid for the fees, be considered as a plaint, from the are when it was filed, their Lordships would have given effect to them, and not, as it is contended here that we should treat such words or provisions as a nullity. In this case we have not only the specifically negative words of s. 4 of the Court-fees Act and the specifically, negative words of S. 28 of that Act, but the specific enactment in [145] the second paragraph, of s. 28 under which alone a memorandum of appeal which was not properly stamped in the first instance can retrospectively be given effect to as valid as if it had been properly stamped in the first instance.
When in the passage which J have quoted their Lordships alluded to the practice in the Indian Courts, I must, assume that their Lordships were alluding; to a lawful practice, of the Indian; Courts., such as was authorized, for example, by the second paragraph of s. 28 of the Court-fees Act or by s. 6 of the, repealed Act, XV of 1868, and not to a practice if such existed, which, was contrary to; the express enactment of the Legislature, a practice which unquestionably-their Lordships, if their attention had been drawn to it, would not have endorsed, as appears from what their Lordships said in the subsequent portion of the passage which I have quoted. So far as the case of Skinner v. Orde is applicable, it is, in may opinion, an authority against Mr. Kashi Prasad's contention, as it indicates that effect must be given to negative words and words of prohibition when they occur in Acts of the Legislature.
As to the case of Ram Lal v. Harrison, I should have considered that the amendment there was such as not to affect the date of the original institution of the suit. That case throws no light upon this case.
In the case of Sheo Partab Narain Singh v. Sheo Gholam Singh it does not appear whether or not the attention of the learned Judges was called to s. 28 of the Court-fees Act, nor does it appear under what circumstances the insufficiently stamped memorandum of appeal had been filed. It appears, however, that; the Judge who returned the memorandum of appeal, it is said under s. 54(b) of Act X of 1877, omitted to comply with that section and to fix a time. Possibly the Judge may not have considered that he was returning the memorandum of appeal under s. 54(b) of that Code.
In the case of Syed Ambur Ali v. Kali Chand Dass the learned Judges do not refer to s. 4 or to s. 28 of the Court-fees Act, [146] 1870, nor does it appear whether or not their attention had been called to those sections. They based their judgment mainly on s. 31 of Act VIII of 1859.
In the case of Musammat Begee Begam v. Syed Yusuf Ali the learned Judges did not consider what effect, if any, the Court fees Act, 1870, had upon their construction of the Limitation Act, IX of 1871. In that case no time had been fixed by the Court within which the plaintiff should make good the deficiency.
The case of Musammal Chowara v. Wasil Khan(6) was decided long before the Court-fees Act, 1870, was passed.
I cannot treat cases in which the Court-fees Act of 1870 was not relevant, or where relevant it was not even referred to, as authorities which it is safe to follow in this case, on the question which I am now considering.
Notwithstanding the cases to which I have just referred, I am, as I have already said, of opinion that the law prohibited the Court from receiving, filing or using the memorandum of appeal in this case, in the condition in which it was when it was tendered on the 9th November, 1887, and that as no order has been made by a Judge under s. 28 of the Court-fees Act, the affixing of the full stamps cannot have a retrospective effect so as to validate the original presentation. If we are to regard the time when the document was fully stamped as the time when it was presented, the presentation was beyond the limit of ninety days allowed by article 156 of the second schedule of the Indian Limitation Act.
It has also been contended that Ss. 9, 10 and 11 of the Court-fees Act are in conflict with s. 28 of that Act, and that ss. 9, 10, 11 and 28 of the Court-fees Act are in conflict with s. 54 of the Code of Civil Procedure, and further, that so far as the High Court is concerned, s. 28 of that Act is in conflict with s. 54 of the Code of Civil Procedure, and on that assumption it has been argued that we should not in this case construe s. 28 of the Court-fees Act according to its plain wording.
[147] First, as to the contention that Ss. 9, 10 and 11 of the Court-fees Act are in conflict with s. 28 of that Act. On a careful consideration of those sections I fail to see any conflict between them.
Chapter III of the Court-fees Act, in which are ss. 9, 10 and 11, relates to public offices and to Courts other than High Courts or Courts of Small Causes in the Presidency Towns. In the Courts to which Chapter III relates it is the Court, that is, the Judge of the Court, whose duty it is under s. 12 to decide questions as to valuation for the purposes of determining the amount of court-fees chargeable. In such Courts the question as to the sufficiency of the stamp on a plaint, when raised, is, as a rule, dealt with as one of the issues in the suit. I assume that the reason for such questions not being sooner disposed of in such Courts is that in those Courts a plaint is presented in nearly all cases to the officer appointed in that behalf by the Court, under s. 48 of the Code of Civil Procedure, and not to the Judge or Munsif. Ss. 9, 10 and 11 of the Court-fees Act relate to suits, and do not relate to appeals. That appears on an examination of those sections, and also from the fact that s. 12 enacts that every question relating to valuation for the purposes of determining the amount of any fee chargeable under Chapter III on a plaint shall be decided by the Court in which such plaint is filed, and further enacts that every question relating to valuation for the purposes of determining the amount of any fee; chargeable under Chapter III on a memorandum of appeal, shall be decided by the Court in which the memorandum of appeal is filed, and in each case such decision shall be final as between the parties to the suit. When such a decision with regard to the memorandum of appeal shows that an additional fee is required, s. 28 of the Court-fees Act would at once apply.
The application of s. 28 would not be inconsistent with the provisions of s. 10 or s. 11. Cases coming within s. 10 or ss. 11 of the Court-fees Act would arise only where through mistake or inadvertence of the Court a plaint which subsequently was discovered to be insufficiently stamped, had been received, filed or used in the Court. No such Court would knowingly receive, file or use [148] a plaint which was insufficiently stamped, in contravention of the express prohibition of s. 6 of the Court-fees Act.
S. 9 merely empowers the Court to issue a commission for the purposes therein mentioned.
There is consequently, in my opinion, no conflict between ss. 9, 10 or 11 and s. 28 of the Court-fees Act. Now, as to the contention that there is a conflict between ss. 9, 10, 11 and 28 of the Court-fees Act and s. 54 of the Code of Civil Procedure. The latter portion only of clause I and clause II of s. 10 and possibly s. 11 of the Court-fees Act deal with the same subject as s. 54 of the Code of Civil Procedure, and then only with the subject dealt with in clause (a) of s. 54.
The only apparent conflict—the conflict is apparent and not real—between ss. 10 and 11 of the Court-fees Act and s. 54 of the Code of Civil Procedure consists in this, that whereas ss. 10 and 11 of the Court-fees Act enact that in the event of the additional fee not being paid within such time as the Court shall fix, the suit shall be “dismissed,” s. 54 of the Code of Civil Procedure enacts [clause (a)] that if the relief sought is undervalued, and the plaintiff on being required by the Court to correct the valuation within a time to be fixed by the Court fails to do so, the plaint shall be rejected. The dismissal of a suit under s. 10 or s. 11 of the Court-fees Act would not be a dismissal on the merits, and consequently would not preclude a plaintiff from presenting a fresh plaint in respect of the same cause of action, and such fresh plaint could be presented accordingly, assuming that it could be presented within the time within which under the Indian Limitation Act it could be presented, and that is all that is provided by s. 56 of the Code of Civil Procedure in the case of the rejection of the plaint. There is consequently, in my opinion, no conflict between Ss. 9, 10 and 11 of the Court-fees Act, taken by themselves, and s. 54 of the Code of Civil Procedure.
If Ss. 9, 10 and 11 of the Court-fees Act are read, as I think they must be, in conjunction with s. 28 of that Act, is there a con-[149] flict between them, so read, and s. 54 of the Code of Civil Procedure; or between s. 28 of the Court-fees Act and s. 54 of the Code of Civil Procedure? I have already pointed out how far, in my opinion, s. 54 of the Code of Civil Procedure applies to the matters which are dealt with by Ss. 9, 10 and 11 of the Court-fees Act. However, s. 28 of the Court-fees Act is one of wider application than are ss. 10 and 11 of that Act, and would in Courts other than the High Court apply to cases coming within clauses (a) and (b) of s. 54 of the Code of Civil Procedure. Later on I propose to show that, at least in my opinion, clauses (a) and (b) of s. 54 do not apply to the High Courts in the exercise of their ordinary original civil, extraordinary original civil, or appellate jurisdiction; and if I am right in that view, the question now under consideration is only interesting from the point of view of analogy.
In enacting in ss. 10 and 11 of the Court-fees Act that “if the additional fee is not paid within such time as the Court shall, fix the suit shall be dismissed,” the Legislature could not have intended to cut down or limit the specific provisions of s. 28 of the same Act.
The wording of s. 54, clauses (a) and (b) of the Code of Civil Procedure, is in this respect almost precisely similar to that in the sentence which I have above quoted from ss. 10 and 11 of the Court-fees Act. It is the plaint shall be rejected in the following cases:—
“(a) If the relief sought is undervalued, and the plaintiff on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so:
“(b) If the relief sought is properly valued, but the plaint is written on paper insufficiently stamped, and the plaintiff on being required by the. Court to supply the requisite stamp within a time to be fixed by the Court fails to do so: —”
If the Legislature did not intend by the use of the words which I have quoted from ss. 10 and 11 of the Court-fees Act to cut down or limit the specific provisions of s. 28 of that Act, I see no reason why we should infer from the use by the Legislature of [150] almost precisely similar words in s. 54 of the Code of Civil Procedure that the Legislature intended by s. 54 to cut down or limit the specific provisions of s. 28 of the Court-fees Act or its application. If there was any such intention I should expect to find it clearly expressed.
Further, I fail to see any case in which there could be a conflict between the provisions of s. 28 of the Court fees Act and s. 54 of the Code of Civil Procedure; unless a Court wilfully acted in contravention of s. 4 or s. 6 of the Court-fees Act, and this it is not to be presumed that a Court would do.
As I have already indicated, the effect of ss. 4, 6 and 28 of the Court-fees Act is, in my opinion, to prohibit a Court from knowingly filing, recording or receiving an improperly stamped document of the classes specified in the first or second schedule to the Court-fees Act and the object of the second paragraph of s. 28 is to enable the Court or the Judge when such an improperly stamped document has through mistake or inadvertence been received, filed or used in the Court, to make an order under which such document may be properly stamped, and on being so stamped to give effect to it as a document as valid as if it had been properly stamped in the first instance.
For the reasons which I have above stated I see no conflict between ss. 9, 10, 11 and 28 of the Court-fees Act or any of them and s. 54 of the Code of Civil Procedure, and for these reasons and a further reason, to which I shall presently refer, I am satisfied that no conflict exists or can arise, so far as the High Court is concerned, between s. 28 of the Court-fees Act and s. 54 of the Code of Civil Procedure. Even if there was a conflict between Ss. 9, 10 and 11 of the Court-fees Act and s. 54 of the Code of Civil Procedure it would, it appears to me, be immaterial so far as the question before us in the case is concerned. Ss. 9, 10 and 11 of the Court-fees Act do not relate to appeals, and s. 638 of the Code of Civil Procedure enacts that clauses (a) and (b) of s. 54 shall not apply to the High Court in the exercise of its ordinary or extraordinary original civil jurisdiction. Most probably the reason why s. 638 enacts that [151] clauses (a) and (b) of s. 54 shall not apply to the High Court in the exercise of its ordinary or extraordinary original civil jurisdiction is, that in a High Court questions in difference as to whether a fee is payable under Chapter II of the Court-fees Act and the amount of the fee, if any, in cases within its extraordinary original civil jurisdiction and in such cases within its ordinary original civil jurisdiction as s. 3 of that Act provides for, are by s. 5 for the taxing officer, the Chief Justice, or the Judge appointed for that purpose by the Chief Justice, and not for the Court. As to other cases within the ordinary original civil jurisdiction of a High Court, the procedure is, so far as I can see, left to be settled by rules to be made by the High Court.
The further reason for my opinion that no conflict between s. 28 of the Court-fees Act and s. 54 of the Code of Civil Procedure, so far as the High Court is concerned, exists or can arise, is this. Such a conflict could not in any case arise, so far as the High Court is concerned, unless clauses (a) and (b), or one of them, of s. 54 of the Code Civil Procedure apply to the High Court in the exercise of its ordinary original civil, extraordinary original civil or appellate jurisdiction.
As I have pointed out, it is by s. 638 of the Code of Civil Procedure enacted that clauses (a) and (b) of s. 54 shall not apply to the High Court in the exercise of its ordinary or extraordinary original civil jurisdiction. It has, however, been contended that s. 582 of the Code of Civil Procedure makes clauses (a) and (b) of s. 54 applicable to the High Court in the exercise of its appellate jurisdiction.
I cannot so read the first part of s. 582 and apply to the High Court in its appellate jurisdiction clauses (a) and (b) of s. 54, which s. 638 enacts shall not apply to it in the exercise of its ordinary or extraordinary original civil jurisdiction. If I am correct in my surmise as to the reason why by s. 638 it was enacted that clauses (a) and (b) of s. 54 should not apply to the High Court in the exercise of its extraordinary original civil jurisdiction, the same reason would apply to the exclusion of the application of those clauses to the High [152] Court in the exercise of its appellate jurisdiction, as questions in difference as to whether a fee is payable under Chapter IT of the Court-fees Act, and the amount of the fee, if any, in cases within its appellate jurisdiction, are, under s. 5 of that Act, for the taxing officer, the Chief Justice or the Judge appointed for that purpose and not for the Court. The latter portion of s. 582 of the Code of Civil Procedure strengthens this view. If the earlier portion of s. 582 was intended to have the wide application which it is contended that it has, I do not understand why it was considered necessary in the latter portion of that section to enact that “and in Chapter XVI, so far as may be, the word ‘plaintiff’ shall be held to include a plaintiff-appellant or defendant-appellant, the word ‘defendant’ a plaintiff-respondent or defendant-respondent, and the word ‘suit’ an appeal in proceedings arising out of the death, marriage or insolvency of parties to an appeal.” In my opinion clauses (a) and (b) of s. 54 of the Code of Civil Procedure do not apply to the High Court in the exercise of its appellate jurisdiction.
Another contention was that the term “final” in s. 5 of the Court-fees Act does not mean final as that term is understood in law, and that the decision of the taxing officer, the Chief Justice or the Judge appointed under s. 5 is open to appeal or revision. The arguments were that “final” in s. 5 has the same meaning as “final” in s. 12, and that decisions of the Court under s. 12 had been held to be appealable, and therefore not final as that term is generally understood. Further, that a decision under s. 12 of the Court-fees Act was in the same position as an order under s. 54 of the Code of Civil Procedure, that an order under s. 54 was appealable, and that consequently decisions under s. 5 or s. 12 of the Court-fees Act are appealable.
I have no doubt that the term “final” in s. 5 of the Court-fees Act has precisely the same meaning as the term “final” in s. 12 of that Act. But the subject to which that term is applied in s. 5 is different from that to which it is applied in s. 12. In s. 5 it is applied to a decision as “to the necessity of paying a fee or the amount thereof,” whereas in s. 12 it is applied to a decision as “to [153] every question relating to valuation for the purpose of determining the amount of any fee chargeable under the chapter (chapter iii) on a plaint or memorandum of appeal.” When we come to look into the authorities it will be necessary to keep this distinction in mind.
For the proposition that a decision under s. 12 of the Court-fees Act is appealable, the following authorities were relied upon, that is to say Chunia v. Ram Dial, Guizari Mal v. Jadaun Bai, Ghedi Lal v. Kirath Chand, and Muhammad Sadik v. Muhammad Jan.
The contention that these authorities, with the exception of that in the I.L.R, 11 All., 91 show that decisions within the meaning of s. 12 of the Court fees Act, 1870, are appealable, arose from confusing the decisions to which the term “final” in that section applies with decisions as to subject-matter to which, according to those authorities, the term “final” does not in s. 12 apply.
What those authorities, rightly or wrongly, it is immaterial to consider which, decided was that a question as to the category of the relief sought in a plaint or by a memorandum of appeal is not “a question relating to a valuation for the purpose of determining the amount of any fee chargeable” under Chapter iii of the Court-fees Act on a plaint or memorandum of appeal, and consequently that an appeal lay from a decision as to the fundamental question of category.
It could not, in my opinion, be contended that category is not under s. 5 of the Court-fees Act for the taxing officer; otherwise he could not decide whether any fee was payable or the amount thereof.
To explain what I mean by the term “category” I give an example. If a Court under s. 12 applied to a case in which the only relief asked was a declaration that the plaintiff was the adopted son of A.B, the scale of fees applicable to a case in which the relief asked was a decree for possession of immoveable property, that would be an error as to the category of the relief asked for, and [154] that question might, according to those authorities, be the subject of an appeal. No Court, so far as I am aware, except this Court in the case reported at I.L.R, 11 All., 91, has held that the term “final “in s. 12 of the Court-fees Act is not to have applied to it the ordinary legal meaning of “final.” What they have held is that the question of category is not a question relating to valuation for the purpose of determining the amount of a fee under s. 12, and consequently that s. 12 does not enact that a decision as to category shall be final.
I confess that when I joined in the judgment in Muhammad Sadik v. Muliammad Jan, I did not quite understand, as I do now, the distinction which the Courts had drawn between a question of category and a question relating to valuation for the purpose of determining the amount of a fee chargeable within the meaning of s. 12 of the Court-fees Act. That decision went beyond what had been decided by all the previous authorities, and so far as it decided that an appeal lay from a decision which was a decision within the meaning of s. 12 of the Court-fees Act, it was not only not supported by authority, but was against the authorities and I am now satisfied that to that extent it was an erroneous decision in law.
Whether the distinction which has been drawn is a sound one or not, it is obvious that the Courts in their efforts to differentiate the two-questions, considered that unless they could be differentiated, a decision of a Court under s. 12 on a question of category would be final and could not be questioned as between the parties.
Another argument in support of the contention that “final” does not mean final was that, inasmuch as an order of rejection under s. 54 of the Code of Civil Procedure rejecting an appeal is a “decree,” every such order in virtue of s. 540 or s. 584, as the case may be, appealable is a decree, and that similarly a decision under s. 12 or s. 5 of the Court-Pees Act is appealable. It appears to me that argument is based upon a confusion of reasoning. I would not have thought it necessary to observe, if it had not been contended to the contrary, that s. 2 of the Code of Civil Procedure, [155] which merely defines what is a decree, does not confer any right of appeal.
S. 540 relates to appeals from original decrees and s. 584 to appeals from appellate decrees, but, so far as this question is concerned, the wording of the two sections is the same. I shall take s. 540 to test the accuracy of the contention. That section is as follows:—
Unless when otherwise expressly provided by this Code or by any other law for the time being in force, an appeal shall lie from the decrees, or from any part of the decrees, of the Courts exercising original jurisdiction to the Courts authorized to hear appeals from the decisions of those Courts. An appeal may lie under this section from an original decree passed ex parte.
That section does not confer a right of appeal from all adjudications or orders which are decrees as defined in s. 2 of the Code of Civil Procedure. It only confers the right of appeal in cases in which the right of appeal is not expressly taken away by the Code of Civil Procedure “or by any other law for the time being in force.”
It cannot be doubted that ss. 5 and 12 of the Court-fees Act are in force, nor can it be doubted that by those sections it is respectively expressly enacted that the decisions in those sections respectively referred to shall be and are “final.” A decision, decree or order could not be described as “final” if it was appealable or so long as it was appealable, and I must assume that the Legislature in using the term “final “in ss. 5 and 12 used it in the legal sense in which that term is always used in Acts and Codes.
So far therefore, if at all, as s. 54 of the Code of Civil Procedure applies to decisions under s. 5 or s. 12 of the Court-fees Act, the orders under it come within the exceptions contained in ss. 540 and 584 of the Code of Civil Procedure.
To take an example of what the Legislature means when it uses the term “final” I refer to s. 588 of the Code of Civil Procedure, which enacts that the “orders passed in appeal under this [156] section shall be final.” It has never been contended that “final” did not mean in that section what is understood by the term final, and that such orders were appealable.
Where the Legislature has used the term “final” for other purposes and without intending that the decision, decree or order to which it is applied shall not be appealable, it has been careful to express its intention, of which explanation IV in s. 13 of the Code of Civil Procedure is an example.
Further, it is clear to my mind that a decision under s. 5 of the Court-fees Act “as to the necessity of paying a fee or the amount thereof” is not a decree as “decree” is defined in s. 2 of the Code of Civil Procedure. It is not a “formal expression of an adjudication upon any right claimed, or defence set up, in a Civil Court when such adjudication so far as regards the Court expressing it, decides the suit or appeal.” The “right claimed or defence set up” referred to in the definition of “decree” must be a right claimed or a defence set up in the suit or appeal, and not a right to have the suit or appeal heard on a particular stamp or the plaint or the memorandum of appeal rejected on account of the stamp. An adjudication under s. 5 of the Court-fees Act as to the stamp by the taxing officer the Chief Justice or the Judge appointed for that purpose is not an adjudication, which, to use the words of s. 2 of the Code of Civil Procedure “so far as regards the Court expressing it, decides the suit or appeal.”
In my opinion ss. 540 and 584 do not apply to decisions under s. 5 of the Court-fees Act, and an order under clause (a) or (b) of s. 54 of the Code of Civil Procedure, so far as it is a decision on a “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 “within the meaning of s. 12 of the Court-fees Act, is final and within the exception contained in ss. 540 and 584 of the Code of Civil Procedure.
As to s. 5 of the Court-fees Act, there is no provision so far as I can ascertain under which the Court or any Bench of the Court has power to consider the propriety of a decision under that section [157] by appeal, in an appeal, or in revision. S. 622 of the Code of Civil Procedure would not apply, the reason being that the decision under s. 5 of the Court-fees Act is not the decision of a Court within the meaning of s. 622, nor is it a decision in a case within the meaning of that section, nor could it be said that the taxing officer, even if he took an incorrect view of the case as to the necessity for a fee or as to the amount of a fee, exercised a jurisdiction not vested in him by law, or failed to exercise a jurisdiction vested in him by law, or acted in the exercise of his jurisdiction illegally, or with material irregularity.
S. 15 of the 24 and 25 Vic., c. 104, is not applicable to decisions by our taxing officer under s. 5 of the Court-fees Act.
A decision under s. 5 of the Court-fees Act by our taxing officer, or by the Chief Justice, or the Judge appointed under that section, is not, as I have pointed out, a decree within the meaning of s. 2 of the Code of Civil Procedure.
The decision of our taxing officer is not an “order” as defined in s. 2 of the Code of Civil Procedure; his decision is not the decision of a Civil Court. It would be anomalous to hold that, although the decision of our taxing officer was not an order as defined in s. 2, the decision of the Chief Justice, or of the Judge appointed under s. 5 of the Court-fees Act on a reference under that section by the taxing officer, is an “order” as defined by s. 2 of the Code of Civil Procedure. I am consequently of opinion that a decision under s. 5 of the Court-fees Act is not a decree or order within the meaning of s. 623 of the Code of Civil Procedure. A further reason for that opinion is that the taxing officer is not a Court within the meaning of that section.
S. 647 of the Code of Civil Procedure obviously does not apply.
Even if a decision under s. 5 of the Court-fees Act could be held to be an order within the meaning of s. 2 of the Code of Civil Procedure, it is not an order within any of the clauses of s. 588 of that Code, and an appeal from it under the Code of Civil Procedure is consequently prohibited by that section.
[158] A decision under s. 5 of the Court-fees Act of our taxing officer, or of the Chief Justice, or of the Judge appointed under that section, cannot be an order within the meaning of s. 591, as, amongst other reasons, it arises on the memorandum of appeal, and consequently could not be set forth as a ground of objection in the memorandum of appeal.
I have consequently come to the conclusion that not only did the Legislature intend that the decision under s. 5 of the Court-fees Act of the taxing officer of the High Court, or of the Chief Justice, or the Judge appointed under s. 5, should for all purposes be final, but that the Legislature has been careful to avoid providing or suggesting any means by which such a decision might be questioned. Whether or not such decisions ought to be open to appeal, review or revision is another question as to which I do not feel bound to express an opinion.
At one period of the argument the vaikil for the appellant contended that no difference had arisen within the meaning of s. 5 of the Court-fees Act between the officer whose duty it was to see that a fee was paid under chapter II of that Act and the appellants or their vakil. I am strongly inclined to think that a difference arose as soon as that officer reported that the stamp was insufficient. In any case we must assume, until the contrary is shown, that our late taxing officer did not act under s. 5 until the difference had arisen and the question had been referred to him, particularly when we find that his decision was accepted without demur by the appellants and acted upon by them.
To take the view that no difference had arisen, and that the taxing officer had made no decision on the question, would be equally fatal to the appellants' case. In that event the report of the officer Dip Chand must, under the circumstances, be deemed to be correct, and it must follow that the memorandum of appeal when tendered to this Court was insufficiently stamped. If the question as to the sufficiency of the stamp, which was on the memorandum of appeal when it was tendered, is still open, then that is a question not for us or for the Bench which has referred to us for our opinion the [159] question as to limitation, but for the taxing officer, and the appeal under the conditional order of my brother Brodhurst is not, even apart from any question of limitation, yet admitted. The appellants, by supplying through their vakil the deficiency in the stamp, adopted and acted upon the decision of the taxing officer, which their vakil would not have allowed them to do if the question had not been referred to and decided by the taxing officer.
Another contention of the vakil for the appellants was that the order of the taxing officer was an order by the head of an office within the meaning of the second paragraph of s. 28 of the Court-fees Act, and that the order having been complied with, the memorandum of appeal must under that paragraph be treated “as valid as if it had been properly stamped in the first instance.” That contention is not, in my opinion, a sound one. “The head of the office” in that section does not refer to the head of the office of a Court, at any rate to the head of the office of the High Court, but to the head of one of the public offices, as, for instance, the Board of Revenue. In one sense no doubt the late taxing officer, as our Registrar, was the head of the office of this Court. He was not, however, in deciding the question before him acting as the head of the office but as the taxing officer of this Court. As head of the office of this Court he had no power to make an order under s. 28 of the Court-fees Act. Such an order could only be made by a Judge of the Court.
No memorandum of appeal can be lawfully filed, registered or used in this Court until it has been admitted by a Judge of the Court. There was in this I read my brother Brodhurst's order of the 9th November 1887, and in view of the stamp report and the decision of the taxing officer, no admission of the memorandun of appeal.
Prior to 1886, no appeal was entered in the register until it was finally admitted. I have now for the first time become aware of the fact that in 1886 an unauthorized practice was introduced of entering in the register appeals which had been only conditionally[160] admitted and before it had been ascertained that the stamps on the memoranda of appeal were sufficient.
Owing to our not having been unanimous as to the meaning of the term “final” in s. 5 of the Court-fees Act, the vakil for the appellant was permitted to argue that the memorandum of appeal was properly stamped in the first instance, that is, when it was tendered to my brother Brodhurst on the 9th November 1887. On this question Mr. Kashi Prasad cited the following cases: Chunia v. Ram Dial, Gulzari Mal v. Jadaun Rai, Dildar Falima v. Narain Das, Narayan Rav Damodar Dabholkar v. Balkrishna Mahadev Gadre, Shama Soondary v. Hurro Soondary, Mahadei v. Ram Kishen Das, Chedi Lal v. Kirath Chand and two unreported cases of this Court, namely, Second Appeal No. 1342 of 1879, decided by Pearson and Oldfield, JJ., on the 3rd of May 1880, and First Appeal No. 119 of 1879, decided by the same learned Judges on the 23rd of December 1880.
Holding the view which I did and still do as to the finality of the decision of the taxing officer, I considered, and still consider, that the question was not open to the appellants. As, however, there was and may be doubt in the minds of some on that question, I shall express my view on it.
In order to do so and before commenting on the cases cited by Mr. Kashi Prasad for the appellants, or referring to the cases relied upon by Mr. Hill and Mr. Spankie for the respondents, it is necessary to see what was the relief sought by the plaintiffs in the plaint, what reliefs were decreed and what were the reliefs sought in the memorandum of appeal.
The respondents, who were plaintiffs below, asked in their plaint that it might be declared that the property mentioned at the foot of the plaint is the joint property of the plaintiffs, and that it is not liable to attachment and sale in execution of the decree, dated the 6th June 1883, held by the defendant No. 4 against the defendant[161] No. 1. In order to found a case for the latter relief asked for, the plaint alleged collusion, fictitious transactions and want of title.
It has been contended that if the plaintiffs obtained the relief asked for as to the non-liability of the property to attachment and sale, that would have afforded them all the protection which they could require. I propose to show presently, why in my judgment that is not the question for the taxing officer to consider. Be that as it may, the plaintiffs were also claiming, as against all the defendants including the decree-holder and Musammat Gijraj Mani Tawarain, a declaration that the property was the joint family property of the plaintiffs. That declaration would not be covered by a declaration that the property was not liable to attachment and sale, nor would a declaration that the property was the joint family property of the plaintiff show without something further that it was not liable to attachment and sale under the decree of the 6th June, 1883. In my opinion, however, it is no part of the duty of a taxing officer or of a Judge or Court on a question as to the sufficiency of a stamp or a fee to consider whether a plaintiff or an appellant is asking for more declarations or reliefs than are required for his protection. A plaintiff or an appellant may have reasons, which, whether they are good or bad, may not be apparent to a taxing officer or taxing Judge for asking for several declarations or reliefs. It is not the province of the taxing officer or the taxing Judge to decide what are the declarations or reliefs which a plaintiff or an appellant may require for his protection. To impose upon a taxing officer or the taxing Judge such a duty would be to impose upon him a duty hardly, if at all, less onerous or difficult than the duty of deciding the case itself.
The contention that because those two reliefs are included in one paragraph of the plaint, they must be regarded as one relief only, does not require an answer.
The decree in the suit gave the plaintiffs the declarations which they in their plaint had asked for. By the memorandum of appeal the defendants seek to get that decree, not in part but in whole, set aside.
[162] The memorandum of appeal was tendered on a stamp of the value of Rs. 10 only.
Now as to the cases cited by Mr. Kashi Prasad on this point, the case of Dildar Fatima v. Narain Das is directly against Mr. Kashi Prasad's contention, and the Full Bench case of Chedi Lal v. Kirath Chand, so far as it bears on this contention, is against it and supports my view as to the effect of s. 28 of the Court-fees Act. The case of Shama Soondary v. Hurro Soondary appears to have little bearing on this contention of Mr. Kashi Prasad, but it is a direct authority that no plaint can be accepted or registered until the preliminary questions of valuation and sufficiency of stamp have been determined. The case of Chunia v. Ram Dial does not support Mr. Kashi Prasad's contention as in that case only one relief was asked for, but it is an example of a case in which this Court held that a question of category was not a question of valuation for determining the amount of a fee within the meaning of s. 12 of the Court-fees Act. The case of Gulzari Mal v. Jadaun Rai is against Mr. Kashi Prasad's contention, as there two reliefs were sought, namely, a declaration of the plaintiff's proprietary right to certain grain and the cancelment of an order made by a Munsif disallowing his claim to the grain, and a fee of Rs. 20, that is, Rs. 10 as the fee in respect of each relief, was paid. In Narayan Rav Damodar Dabholkar v. Balkrishna Mahadev Gadre the question was whether a declaratory suit could be maintained in that case without a claim for consequential relief. In the case of Malmdei v. Ram Kishen Das(7) the question was whether the powers conferred by ss. 54(a) and (c) and 55 of the Code of Civil Procedure read with s. 582 of that Code and those conferred by ss. 12 or 28 of the Court-fees Act could be exercised after decree made by the Court which made the decree. In the unreported case, Second Appeal No. 1342 of 1879, Pearson and Oldfieid, JJ., overruled the decision of the then taxing officer of this Court on the question of the amount of the fee payable on the memorandum of appeal in that case. In [163] the other unreported case, First appeal No. 119 of 1879, the same learned Judges considered the decisions of the then taxing officer of the Court on the question of the amount of the fee payable on the memorandum of appeal in that case. In each of those unreported cases there was also a question as to an alleged deficiency of fee in the Court below, and in neither of them did those learned Judges refer to the provision in s. 5 of the Court-fees Act, that the decision of the taxing officer should be final. In the latter of those two cases I find in the papers on the record the following memorandum signed by Pearson and Oldfieid, JJ.:— “The Registrar's attention is drawn to the circumstance that costs in this case have been incurred because the opposite party was summoned before the question of court-fees had been settled. It would be desirable that such questions should be settled before the admission of appeals.” I would have said that it was required by law. On this contention now under consideration, Mr. Spankie relied upon the two Full Bench cases of Ram Prasad v. Sukh Dai(8) and Lachmi Narain v. Gowri Shankur(9), each of which cases was directly in point and against Mr. Kashi Prasad's contention, and showed that the stamp of Rs. 10 in these cases was not sufficient. Mr. Spankie also relied on some of the cases cited by Mr. Kashi Prasad.
If is sufficient for me to say that if I was not hound by the Full Bench rulings of this Court on which Mr. Spankie relied, I should still be of opinion that the stamp of Rs. 10 on which this memorandum of appeal was tendered to my brother Brodhurst on the 9th November, 1887, was an insufficient stamp, inasmuch as two distinct declarations were asked for and obtained and were by the appeal sought to be set aside. What my brother Straight said in delivering his judgment in the case of Lachmi Narain v. Oouri Shankar at page 55 would apply to the present case, and in that judgment the then Chief Justice and the other three Judges of the Court concurred. That was probably the case which the taxing officer followed here.
[164] The result is that I am of opinion that there is now before this Court no valid appeal as to the merits of which this Court can give a decision.
Tyrrell, J.:— I concur in everything that has been said by the learned Chief Justice.
Straight, J.:— I have had the great advantage of perusing the long and learned judgment of the learned Chief Justice, and I think it right to say, in expressing my entire concurrence therein, that I was at one time disposed to arrive at a contrary conclusion to that at which he has arrived, but that his convincing and exhaustive judgment has satisfied me that the question referred to this Foil Bench is open to no other answer than that proposed by him.
Brodhurst, J.:— I entirely concur with the learned Chief Justice.
Mahmood, J.:— I confess that when the case was argued before the Full Bench, I entertained serious doubts as to whether or not the answer given to the reference by the learned Chief Justice in this case should be the answer given. I entertained these doubts principally because I had difficulty in considering the statute, Act VII of 1870, known as the Court-fees Act of that year, which begins without a preamble, and leaves it to the Judges to decide what its objects were, and to gather those objects from the enacting clauses. The difficulty about the absence of preamble was further enhanced in my mind at the hearing by the circumstance that many of the provisions contained in that Act might possibly give rise to difficulty as to whether they are or are not inconsistent with the provision of the Code of Civil Procedure. Also the difficulty arose in my mind that inasmuch as this Court-fees Act (VII of 1870) is an enactment anterior to the Code of Civil Procedure, whether Act X of 1877 or Act XIV of 1882, the provisions in these later statutes might not by implication abrogate any of the provisions contained in the earlier Act. My difficulty further arose from the circumstance that I felt, in the absence of a preamble in this Court-fees Act, whether it was intended to regulate [165] questions of procedure or to regulate the method of the collection of revenue, that is to say, fiscal questions for the purposes of the obtainment of money from the tax-paper in order to achieve such results as the State had in view to carry on the administration of the country.
These were the reasons why in the course of the hearing of the case I entertained serious doubts upon what should be the answer to the question put to the Full Bench. But those doubts have now been removed in common with the view taken by my brother Straight, by the learned judgment delivered by the learned Chief Justice, and in which I entirely concur, especially with reference to the interpretation of the specific requirements of this legislation, Act VII of 1870.
But whilst giving my full concurrence to the views therein expressed, I think it is within my province to point out clearly as a Judge of this Court that I do not understand that the provisions of this Court-fees Act, as they now have been interpreted, can operate otherwise than to retard and in many cases obviate the possibility of justice being done to the parties who did not happen to have sufficient pecuniary means to abide by the stringent requirements of the letter of the statute itself. The enactment, as the learned Chief Justice has explained, is most anxious to collect money from those who seek to obtain justice, but there is not one word in that statute to enable the litigant who is to be subject to these stringent rules to re-obtain the sum of money which he, by dint of a wrongful user of the powers given to the taxing officer, does pay as court-fee, say, for example, Rs. 3,000 instead of Rs. 10, as may be the case where difficulty may arise as to whether a suit or an appeal deals with a declaratory claim or a claim including reliefs of a consequential character. I mention this on purpose, as I hope that this enactment will soon be considered fit to be amended, and that a difficulty such as has arisen in this case may not arise in future, and that no pleas ad misericordiam such as were addressed in this very case might be made the subject of consideration by the Judges of a whole High Court established by Her Majesty's Charter. [166] The stringency of the Act as it has been now interpreted is probably a good thing for the litigant, because it indicates the necessity of amendment in his behalf. I hold, following the views of Jeremy Bentham, that law taxes, the more stringent they are, the less do they achieve their aim, for they are stringent not in the interests of justice, but make the administration of justice difficult and in many cases impossible.
With these remarks, I concur in the judgment delivered by the learned Chief Justice.
Court-fees Act, 1870.