1- suits in respect of Article-1 of the first schedule – court fee ad-valorem according to mentioned in the first schedule of court fee act .
2- suit mentioned in article - 11 of the first schedule in respect of probate and letter of administration – fees shall be paid ad-valorem accordingly.
3- suit mentioned in article - 12 of the first schedule in respect of succession certificate – fees shall be paid ad-valorem accordingly.
4- suits under article- 17 clause (iii) suit for declaratory decree without consequential relief (vi) suit u/s 14 of religious Endowment Act,1863 and u/s 91 or 92 CPC (vii) every other suit not otherwise provided for by this act.
Section 17 of the Court-fees Act, 1870
17. Multifarious suits.—
(1) Where any in which two or more separate and distinct cause of action are joined , the plaint or memorandum of appeal shall be chargeable with the aggregate amount of the fees with which the plaints or memorandum of appeal would be chargeable under this act if separate suit were instituted in respect of each such cause of action.
Provided that nothing in this sub-section shall be deemed to affect any power conferred by or under the CPC to order separate trials.
(2) - Alternative relief- when more reliefs than based on the same cause of action are sought in alternative the fee shall be paid according to the value of the relief in-respect of which the largest fee is payable.
अपील, रेफ़्रेन्स व निगरानी से सम्बंधित उपबंध -
अब अगला विचारणीय प्रश्न यह है कि वाद मूल्यांकन तथा न्यायशुल्क के सम्बन्ध अपील व निगरानी से सम्बंधित क्या प्रावधान हैं तथा हमें वाद मूल्याङ्कन तथा न्यायशुल्क के सम्बंधित वाद बिंदुओं की विरचना के समय व उनके निस्तारण के समय क्या-क्या सावधानियां बरतनी चाहिए। अपील व निगरानी के बावत विवेचना से पहले इस तथ्य पर प्रकाश डालना आवश्यक है कि वाद बिंदुओं की विरचना करते समय न्यायालय को क्या सावधानी बरतनी चाहिए ? इस सम्बन्ध में न्यायालय को यह ध्यान रखना होगा कि न्यायशुल्क व मूल्यांकन से सम्बंधित वाद बिंदुओं की विरचना पृथक-पृथक करनी होगी तथा उनका निस्तारण भी अलग-अलग करना चहिये। इसका अभिप्राय यह है कि वाद के मूल्यांकन तथा न्यायशुल्क के बावत वाद बिंदुओं की विरचना व निस्तारण साथ-साथ नहीं करनी चाहिए क्योंकि दोनो वाद बिंदुओं से सम्बंधित अधिनियम अलग-अलग हैं और दोनों के परिणाम भी अलग-अलग है। । ये वाद बिंदु इस प्रकार विरचित किये जाये यथा- क्या वादी का वाद अल्पमूल्यांकित है ? क्या प्रदत्त न्यायशुल्क अपर्याप्त है ?
अपील, रेफरेन्स व निगरानी के प्रश्न का विश्लेषण तीन आधारों पर किया जा सकता है। जो इस प्रकार हैं -
1- न्यायशुल्क की अदायगी के आलोक में।
2- न्यायालय के आर्थिक क्षेत्राधिकार के आलोक में वाद के मूल्यांकन के बावत।
3- न्यायशुल्क की गणना के प्रकाश में वाद का मूल्यांकन के बावत।
1- न्यायशुल्क की अदायगी के आलोक में-
न्यायशुल्क अधिनियम की धारा-5, 6, 6A, 6B और 6C में प्रावधान किये गए हैं। इन धाराओं के अवलोकन से यह परिलक्षित होता है कि इन उपबंधों की परिधि में तीन प्रकार के न्यायालय आते है। प्रथम- माननीय उच्च न्यायालय , द्वितीय- लघुवाद न्यायालय तथा तृतीय-अन्य न्यायलय जो उच्च न्यायालय से इत्तर हैं।
न्यायशुल्क अधिनियम की धारा-5 में माननीय उच्च न्यायालय के आलोक में न्यायशुल्क के बावत स्टाम्प रिपोटर की रिपोर्ट के विरूद्व आपत्ति का प्रावधान किया गया है। इस धारा के अनुसार यदि न्यायशुल्क पर आपत्ति की जाती है तो उक्त प्रकरण माननीय मुख्य न्यायाधीश द्वारा नामित टैक्सिंग ऑफिसर के समक्ष प्रस्तुत किया जाये और उक्त टैक्सिंग ऑफिसर का अभिनिश्चय अंतिम होगा शिवाय जब तक टैक्सिंग अधिकारी की राय में उक्त प्रश्न सामान्य महत्त्व का न हो। इसका अभिप्राय यह है कि टैक्सिंग अधिकारी के मत से न्यायशुल्क की अदायगी से सम्बंधित प्रश्न सामान्य महत्व का है तो उक्त प्रकरण अंतिम विनिश्चय के लिए माननीय मुख्य न्यायधीश को संदर्भित कर दिया जायेगा , जिसे या तो माननीय मुख्य न्यायाधीश के द्वारा अथवा उनके द्वारा इस हेतु नियुक्त किसी अन्य न्यायाधीश द्वारा निर्णीत किया जायेगा। इस धारा के अवलोकन से स्पष्ट हो जाता है कि यहाँ पर किसी अपील,निगरानी के प्रावधान आकर्षित नहीं होते है। इस धारा में referred शब्दावली का प्रयोग किया गया है। इसका अभिप्राय यह है की माननीय उच्च न्यायालय में संस्थित किये जाने वाले प्रकरणों के आलोक में न्यायशुल्क की अदायगी के सम्बन्ध में टैक्सिंग ऑफिसर का निर्णय अंतिम होता है जिसके विरुद कोई अपील व निगरानी पोषणीय नहीं होती है।
जहाँ तक लघुवाद न्यायालय का प्रश्न है तो इसके बावत भी न्यायशुल्क अधिनियम की धारा-5 में ही प्रावधान किया गया है। यह धारा प्रावधानित करती है न्याशुल्क के बावत यदि कोई आक्षेप उठाया जाता है तो वह लघुवाद न्यायालय के लिपिक को संदर्भित किया जायेगा और उक्त लिपिक का विनिश्चय अंतिम होगा। लेकिन उक्त लिपिक के मत से यदि न्यायशुल्क की अदायगी के सम्बन्ध में प्रश्न सामान्य महत्व का है तो ऐसे प्रश्न का अवधारण न्यायालय लघुवाद न्यायालय के प्रथम जज के द्वारा किया जायेगा। इस धारा के अवलोकन से स्पष्ट हो जाता है कि यहाँ पर किसी अपील,निगरानी के प्रावधान आकर्षित नहीं होते है। इस धारा में referred शब्दावली का प्रयोग किया गया है। इसका अभिप्राय यह है की लघुवाद में संस्थित किये जाने वाले प्रकरणों के आलोक में न्यायशुल्क की अदायगी के सम्बन्ध में लिपिक का निर्णय अंतिम होता है जिसके विरुद कोई अपील व निगरानी पोषणीय नहीं होती है। लेखक के विचार से धारा-न्यायशुल्क अधिनियम का यहाँ पर उल्लेख किया जाना उचित प्रतीत होता है -
5. Procedure in case of difference as to necessity or amount of fee.—When any difference arises between the officer whose duty it is to see that any fee is paid under this Chapter and any suitor or attorney, as to the necessity of paying a fee or the amount thereof, the question shall, when the difference arises in any of said High Courts, be referred to the taxing-officer, whose decision thereon shall be final, except when the question is, in his opinion, one of general importance, in which case he shall refer it to the final decision of the Chief Justice of such High Court, or of such Judge of the High Court as the Chief Justice shall appoint either generally or specially in this behalf.
When any such difference arises in any of the said Courts of Small Causes, the question shall be referred to the Clerk of the Court, whose decision thereon shall be final, except when the question is, in his opinion, one of general importance, in which case he shall refer it to the final decision of the first Judge of such Court.
The Chief Justice shall declare who shall be taxing-officer within the meaning of the first paragraph of this section.
अन्य न्यायालयों के परिपेक्ष्य में न्यायशुल्क अधिनियम के धारा-6A में उपबंध किये गए हैं। आइये सबसे पहले यह देखते है की धारा-6A में क्या प्रावधान किये गए हैं -
6-A Appeal against order to pay court fee- (1) Any person called upon to make good deficiency in court fee may appeal against such order as if it were an order appealable under section-104 CPC.
The party appealing shall file with the memorandum of appeal, a certified copy of the plaint together with that of the order appealed against.
(2) In case an appeal is filed under sub section (1) and the plaintiff does not make good the deficiency, all proceedings in suit shall be stayed and all interim orders made, including an order granting an injunction or appointing a receiver, shall be discharged.
(3) A copy of memorandum of appeal together with a copy of plaint and the order appealed against shall be sent forthwith by the appellate court to the commissioner of stamps.
(4) If such order is varied or reversed in appeal, the appellate court shall if deficiency has been made good before the appeal is decided, grant to the appellant a certificate authorizing him to receive back from the collector such amount as is determined by the appellate court to have been paid in excess of the proper court fee.
(5) The court may make such order for the payment of the costs of such appeal as it deems fit and such costs are payable to the government they shall be recoverable as arrears of land revenue.
इस धारा के अनुसार कोई भी पक्षकार सिविल प्रक्रिया संहिता की धारा-104 में वर्णित आदेशों के विरुद अपील की भांति न्यायशुल्क की कमी के बावत अपील कर सकेगा। अपील के लिए यह आवश्यक है कि अपील के मेमोरेंडम के साथ-साथ आक्षेपित आदेश व वादपत्र की प्रमाणित प्रतियां भी अपीलकर्ता को दाखिल करनी पड़ेगी। यहाँ यह भी ध्यान रखना होगा कि जिस प्रकरण में न्यायशुल्क की कमी के बावत अपील योजित की गयी और वादी न्यायालय द्वारा निर्धारित न्यायशुल्क की कमी को पूरा नहीं करता है तो उसके वाद की कार्यवाही स्थगित हो जाएगी और सभी अंतरिम आदेश उन्मोचित हो जायेंगे यहाँ तक कि अस्थायी निषेधाज्ञा का आदेश स्वतः उन्मोचित हो जायेगा। न्यायशुल्क अधिनियम की धारा-6 (5 ) के अनुसार यदि न्यायशुल्क की कमी को न्यायालय द्वारा दिए गए समय के अंतर्गत पूर्ति कर दी जाती है तो वाद या अपील की तिथि वह मानी जाएगी जिस तिथि को ऐसा वाद या अपील प्रतुत किये गए थे।
जैसा कि विदित है कि धारा-6 (2 ) न्यायशुल्क अधिनियम के प्रावधान माननीय उच्च न्यायालय के आलोक में लागू नहीं होते है। माननीय इलाहाबाद उच्च न्यायालय ने एस वाजिद अली इसार बानो -AIR 1938 All. 64 में उक्त तथ्य की पुष्टि की है।
न्यायशुल्क अधिनियम की धारा- 6B में निगरानी का प्रावधान किया गया है। लेकिन धयान रहे निगरानी का यह प्रावधान सामान्य सिद्धांत नहीं है। इसका अभिप्राय यह है की इस धारा के अधीन निगरानी केवल चीफ इंस्पेक्टर स्टाम्प के द्वारा न्यायशुल्क अधिनियम की धारा-6 (3 ) के अधीन पारित आदेश के विरुद की जा सकती है।
इसी प्रकार न्यायशुल्क अधिनियम की धारा- 6C चीफ कंट्रोलिंग रेवेन्यू अथॉरिटी को यह अधिकारिता प्रदान की गयी है यदि न्यायशुल्क अधिनियम की धारा-6B के अधीन निगरानी नहीं की गयी है और न्यायशुल्क का प्रकरण सामान्य महत्व का है तो उसके विरुद उक्त प्राधिकारी माननीय उच्च न्यायालय में Reference योजित कर सकेगा।
2- न्यायालय के आर्थिक क्षेत्राधिकार के आलोक में वाद के मूल्यांकन के बावत -
वादों के मूल्यांकन अधिनियम की धारा-11 में इस बावत प्रावधान किये गए हैं कि कब अपीलीय व निगरानी न्यायालय क्षेत्राधिकार के परिपेक्ष्य में वादों के अल्पमूल्यांकन व अधिमूल्यांकन पर आपत्ति को विचार में ले सकेगा। इस हेतु सर्वप्रथम धारा-११ का उल्लेख आवश्यक आवश्यक हो जाता है -
11. Procedure where objection is taken on appeal on revision that a suit or appeal was not properly valued for jurisdictional purposes.—(1) Notwithstanding anything in section 99 of the Code of Civil Procedure (14 of 1882), an objection that by reason of the over-valuation or under-valuation of a suit or appeal a Court of first instance or lower Appellate Court which had no jurisdiction with respect to the suit or appeal exercise jurisdiction with respect thereto shall not be entertained by an Appellate Court unless— (a) the objection was taken in the Court of first instance at or before the hearing at which issues were first framed and recorded, or in the lower Appellate Court in the memorandum of appeal to that Court, or (b) the Appellate Court is satisfied, for reasons to be recorded by it in writing, that the suit or appeal was over-valued or under-valued, and that the over-valuation or under-valuation thereof has prejudicially affected the disposal of the suit or appeal on its merits. (2) If the objection was taken in the manner mentioned in clause (a) of sub-section (1), but the Appellate Court is not satisfied as to both the matters mentioned in clause (b) of that sub-section and has before it the materials necessary for the determination of the other grounds of appeal to itself, it shall dispose of the appeals as if there had been no defect of jurisdiction in the Court of first instance or lower Appellate Court. (3) If the objection was taken in that manner and the Appellate Court is satisfied as to both those matters and has not those materials before it, it shall proceed to deal with the appeal under the rules applicable to the Court with respect to the hearing of appeals; but if it remands the suit or appeal, or frames and refers issues for trial, or requires additional evidence to be taken, it shall direct its order to a Court competent to entertain the suit or appeal. (4) The provisions of the section with respect to an Appellate Court shall, so far as they can be made applicable, apply to a Court exercising revisional jurisdiction under section 115 of the Code of Civil Procedure (14 of 1882) or other enactment for the time being in force. (5) This section shall come into force on the first day of July, 1887. वादों के मूल्यांकन अधिनियम की धारा-11 के अधीन यह सामान्य सिद्धांत प्रतिपादित किया गया है कि न्यायालय के क्षेत्राधिकार के परिपेक्ष्य में अपीलीय अथवा निगरानी न्यायालय के द्वारा वाद के अल्पमूल्यांकन व अधिमूल्यांकन पर की गयी आपत्ति पर सामान्यतः विचार नहीं किया जायेगा जब तक कि -
(1 ) ऐसी आपत्ति प्रथम स्तर के न्यायालय के समक्ष वाद बिन्दुओं की प्रथम बार विरचना या अंकन के समय न उठाया गया हो अथवा प्रथम अपीलीय न्यायालय के मेमोरेंडम में न उठाया गया हो।
(2 ) यदि अपीलीय अथवा निगरानी न्यायालय लिखित कारणों के आधार पर संतुष्ट है कि ऐसे वाद या अपील का अल्पमूल्यांकन व अधिमूल्यांकन ऐसे वाद या अपील के गुण-दोष पर प्रभाव डालने वाला है।
यहाँ यह ध्यान रखना होगा कि यदि अपीलीय न्यायालय अथवा निगरानी न्यायालय को विश्वास है कि की गयी आपत्ति निराधार है तो वह अपील का निष्तारण इस प्रकार से करेगा जैसा प्रथम स्तर के न्यायालय अथवा प्रथम अपीलीय न्यायालय के क्षेत्राधिका में कोई दोष अथवा अनियमितता न हो।
दूसरी तरफ यह भी ध्यान रखना होगा कि यदि अपीलीय न्यायालय को ऐसा लगता है कि वाद के अल्पमूल्यांकन अथवा अधिमूल्यांकन के सम्बन्ध में की गयी आपत्ति उचित है तो वह अधीनस्थ न्यायालय को उस बिंदु के निस्तारण के लिए पत्रावली को रिमांड कर देगा। यहाँ यह भी धयान रखना होगा कि इस स्तर पर विचारण न्यायालय अथवा प्रथम अपीलीय न्यायालय पक्षकारों के साक्ष्य भी ले सकता है।
3- न्यायशुल्क की गणना के प्रकाश में वाद का मूल्यांकन के बावत -
न्यायशुल्क अधिनियम की धारा-12 यह प्रावधानित करती है कि न्ययायशुल्क की अदायगी के बावत किये गए वाद तथा अपील के मूल्यांकन के सम्बन्ध में न्यायालय का विनिश्चय अंतिम होगा। इसका अभिप्राय यह है कि न्यायशुल्क की अदायगी के बावत किये गए किसी वाद अथवा अपील के मेमोरेंडम के मूल्यांकन के विरुद कोई अपील, निगरानी तथा रेफरेन्स पोषणीय नहीं होता है।
लेकिन यहाँ यह विचारणीय प्रश्न है कि ऐसा वाद किसी अपीलीय, रेफरेन्स अथवा निगरानी न्यायालय के समक्ष आता है तो वहां पर ऐसा न्यायालय इस तथ्य पर विचार कर सकेगा कि कथित प्रश्न गलत तरीके से निर्णीत किया गया है। इसका अभिप्राय यह कि न्यायशुल्क की अदायगी के सम्बन्ध में किये गए वाद के मूल्यांकन के विरुद कोई अपील रेफरेन्स अथवा निगरानी योजित नहीं की जा सकती है। इसका अभिप्राय यह है कि विधि का यह सामान्य सिद्धांत है कि न्यायशुल्क की गणना के बावत किये गए वाद के मूल्याङ्कन के सम्बन्ध में सिपलसिटर यदि कोई आदेश पारित किया गया है तो ऐसे आदेश के विरुद कोई अपील, निगरानी या रेफरेन्स पोषणीय नहीं होता है। लेकिन यदि किसी डिक्री के विरुद कोई अपील योजित की गयी है तो न्यायशुल्क अधिनियम की धारा-12 के अधीन रहते हुए न्यायशुल्क की गणना के बावत किये गए वाद के मूल्यांकन के विरुद की गयी आपत्ति पर ऐसा अपीलीय न्यायालय विचार कर सकता है। इसी प्रकार के प्रावधान निगरानी या रेफरेन्स के सम्बन्ध में भी लागू होते हैं। लेखक के विचार से यहाँ पर न्यायशुल्क अधिनियम की धारा-12 का उल्लेख आवश्यक हो जाता है। जो इस प्रकार है-
12- Decision of questions as to valuation.—(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 within such time as may be fixed by it, so much additional fee as would have been payable had the question been rightly decided. If such additional fee is not paid within the time fixed and the defaulter is the appellant, the appeal shall be dismissed, but if the defaulter is the respondent the court shall inform the collector who shall recover the deficiency as if it were an arrear of land revenue.
उपर्युक्त धारा के अवलोकन से यह स्पष्ट है कि साधारणतया न्यायशुल्क की गणना के बावत किये गए वाद के मूल्यांकन के सम्बन्ध में पारित आदेश के विरुद्ध कोई भी अपील, निगरानी तथा रिफरेन्स पोषणीय नहीं होता है, लेकिन यदि कथित आदेश साधारणतया से अधिक है अर्थात न्यायशुल्क अधिनियम के अन्य प्रावधनों को भी स्पर्श करता है तो ऐसा आदेश निगरानी योग्य हो जाता है। जैसा कि यह स्थापित सिद्धांत है कि अपील का अधिकार किसी संविधि द्वारा प्रदत्त होता है। इसका अभिप्राय यह है कि न्यायिक निर्वचन के आधार पर अपील का अधिकार प्रदान नहीं किया जा सकता है। यहाँ पर एक भ्रम पाठकों के समक्ष यह उत्पन हो जाता है कि जब वाद के अल्पमूल्यांकन के आधार पर कोई वादपत्र ख़ारिज कर दिया जाता है तो ऐसा आदेश अपीलीय होता है क्योंकि सिविल प्रक्रिया संहिता की धारा - २(२) के तहत ऐसा आदेश डीम्ड डिक्री की कोटि में आता है। इससे यह भ्रान्ति उत्पन्न हो जाती है कि न्यायशुल्क अधिनियम की धारा-१२ तथा सिविल प्रक्रिया संहिता के आदेश-७ नियम-११ में अंतर्विरोध है।इस अंतर्विरोध को माननीय उच्चतम न्यायालय ने अधोलिखित नज़ीर में दूर कर दिया है और यह भी स्पस्ट कर दिया है कि न्यायशुल्क अधिनियम की धारा-१२ के अधीन पारित आदेश कब अंतिम माना जायेगा और कब रिवीजन व अपील योजित की जा सकेगी।
Nemi chand and another vs The Edward Mills company Limited and another AIR 1953 SC 28 -
1. That it be declared that the appointment of defendant No. 2 is illegal, invalid and ultra vires and that he has no right to act as chairman, managing director etc. of defendant No. 1;
2. That a receiver be appointed to take charge of the management of the company, until a properly qualified chairman managing director etc. are duly appointed as required by the memorandum and articles of the company. The plaint bore a court-fee stamp of Rs. 10 only, but the objection of the respondents that court-fee was payable relief No. 2 the appellants paid ad valorem fee Rs. 51,000 which was the valuation of the suit for purposes of jurisdiction.
The Additional District Judge dismissed the suit the preliminary ground that it was not maintainable as it related to the internal management of the company and that the, appellants had no right to bring it without impleading the directors who were necessary parties to it.
Aggrieved by this decision of the trials Judge, the appellants preferred an appeal to the Court of the Judicial Commissioner, Ajmer-Merwara, at Ajmer. The memorandum of appeal was Stamped with a court fee stamp of Rs. 10 and it was expressly stated therein that relief No. 2 of the plaint was given up. An objection was raised regarding the amount of court fee paid the memorandum of appeal. The Judicial Commissioner ordered that proper court-fees be paid thereon in a month. In this order no reasons were given for this decision. The additional fee demanded was not paid, and the Judicial Commissioner dismissed the appeal with costs 22nd March, 1945. An application was made for leave to appeal to the Privy Council against this order but, it was refused. In the order refusing leave it was said as follows:- " appeal to this court, the memorandum was again stamped with a ten rupee stamp only and the respondents therefore objected. It having been conceded by plaintiffs earlier that the relief for the receivership was consequential to the relief for the declaration, the appellants were directed to pay the same stamp as had been -paid in the trial Court. They objected stating that they had expunged from their memorandum of appeal the request that the court should appoint a receiver and that they were not, therefore, liable to pay the same amount this a notice was issued and counsel were beard.
It being clearly set out in section 42 of the Specific Relief Act that no court shall grant a declaration only where the plaintiff being able to seek further relief than a mere declaration of title omits to do so, the appellants were directed to pay as earlier ordered the same amount as bad ultimately been paid the plaint. They had earlier sought a consequential relief and the court 'was, therefore, entirely unable to hold that the plaintiffs were unable to seek a further relief, they having sought the relief in the lower court and it having been refused to them. The amount of-the stamp was not paid and the appeal was therefore dis- missed with costs."
The reasons for demanding additional court-fee, though not mentioned in the original order, are stated in this order. The question for determination in this appeal is whether the order of the Judicial Commissioner demanding additional court-fee can be sustained in law. A memorandum of appeal, as provided in article 1 of Schedule I of the Court-Fees Act, has to be stamped according to the value of the subject-matter in dispute in appeal; in other words, the relief claimed in the memorandum of appeal determines the value of the appeal for purposes of court-fee. The only relief claimed in the memorandum of appeal was the first one mentioned in the plaint. This relief being purely of a declaratory character, the memorandum of appeal was properly stamped under article 17 of Schedule II It is always open to the appellant in appeal to give up a portion of his claim and to restrict it. It is further open to him; unless the relief is of such a nature that it cannot be split up, to relinquish a part of the claim and to bring it within the amount of court-fee already paid: Brahnmnandam v. Secretary of State for India(1); Ram Prasad v. Bhiman(2); Karam Chand v. Jullundur Bank Ltd(1); Neelachalam v. Nara- singha Das(4); Sah Bamehand v. Pannalal(5); Chuni Lal v. Sheo Charanlat Lalman(1). The plaintiffs in express terms relinquished the second relief,they had claimed in the plaint, in their memorandum of appeal. For the purpose of deciding whether the memorandum of appeal was properly stamped according to the subject matter of the appeal, it was not open to the Judicial Commissioner to canvass the question whether the suit with the second prayer eliminated from it fell within the mischief of the proviso to section 42 of the Specific Relief Act. That was a question which related to the merits of the appeal and did not concern its proper institution this ground, therefore, the Judicial Commissioner had no jurisdiction to demand (I) (1930) I.L.R. 53 Mad. 48 (2) (1905) I.L.R. 27 All. 151.
(3) A.I.R. 1927 Leh. 543.
(4) A.R. 1931 Mad 716.
(5) A.I.R. 1929 All. 308.
(6) (1925) I.L.R. 47 All. 756.
additional fee from the plaintiffs and the appeal could not be dismissed for failure to meet it. We are thus of the opinion that the order demanding additional court-fee the memorandum of appeal as it stood,' that is, minus the second prayer, was erroneous and we hold that the memorandum of appeal was properly stamped, as the subject-matter of the appeal was purely of a declaratory character. Mr. Setalvad for the respondents contended that the first relief claimed in the plaint, and which was the subject- matter of the appeal included within it consequential relief and was not purely declaratory in nature and therefore the Judicial Commissioner was right in demanding additional court-fee the value of the consequential relief. It was said that the words that respondent No. 2 "had no right to act as chairman and managing director" amounted to a claim for consequential relief. We are unable to agree. The claim contained in the first relief of the plaint is to the effect that it be declared that defendant No. 2 has no right to act as chairman an managing director because of his appointment being illegal, invalid, and ultra virus. The declaration claimed is in negative form that defendant No. 2 has no right to act as chairman and managing director. No claim for a consequential relief can be read within this prayer. The words "that defendant 2 has no right to act as chairman.......'' are mere repetition and reiteration of what is contained in the opening sentence of the paragraph. This contention of Mr. Setalvad, therefore, cannot be sustained.
It was next contended that in view of the provisions of section 12 of the Court-Fees Act it should be held that the decision of the Judicial Commissioner' was final, and could not be challenged in appeal. Section 12 of the Court-Fees Act enacts as follows:
"Every question relating to Situation for the purpose of determining the amount of any fee chargeable under this chapter 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."
The provisions of this section have to be read and construed keeping in view the provisions of the Code of Civil Procedure. Order VII, Rule 11, Civil Procedure Code, provides as follows:-
"The plaint shall be rejected-
(b) where the relief claimed is undervalued and the plaintiff, being required by the court to correct the valuation within a time- to be fixed by the court, fails to do so;......
(d) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, being required by the court to supply the requisite stamp paper within a time to be fixed by the court, fails to do so."
An order rejecting a plaint is a decree as defined in section 2; sub-section (ii), and is appealable as such. There is an apparent conflict between the provisions of the Code of Civil Procedure and the provisions of section 12 which make the order relating to valuation final and efforts to reconcile the provisions of the Court-Fees Act and the Code have resulted in some divergence of judicial opinion the construction of the section. In a number of decisions the Calcutta High Court took the view that the finality declared by section 12 of the Court-Fees Act had been taken away by the relevant provisions of the Code, as the order rejecting a plaint was appealable as a decree, no matter whether the dispute related to the category under which the same falls for purposes of court-fee or only to valuation pure and simple under a particular category: Vide In re Omrao Mirza v. Mary Jones(,) and Tara Prasanna Chongdar v. Nrisingha Moorari Pal(1). This extreme view has not been maintained in later decisions and it has been held that the finality declared by section 12 is limited only to the question (1883) 12 C.L.R. 148.
(2) (1924) I.L..R. 51 Cal. 216.
of valuation pure and simple and does not relate to the category under which a certain suit falls: Tariman Khatun v. Secretary o State for India in Council(1). The Allahabad High Court in its earlier decisions took the extreme view: Vide Muhammad Sadik v. Muhammad Jan(2). Later that -court veered round to the view that the finality declared by section 12 only related to matters of, appraisement. The High Court of Lahore has placed a similar construction the meaning of the expression "valuation" in section 12 and has held that the finality attaches only to a decision which concerns valuation simpliciter and no finality attaches when a court decides a question whether a case falls within one or other category of the cases mentioned in the different sections and schedule of the Court Fees Act: Vide Mahna Singh v. Bahadur Singh(1); Mst. Parmeshri v. PannaLal(1). Thisviewhasconsistentlybeenheldin thatcourt. The Madras High Court took the same view in Lakshmi Amma v. Janamajayam Nambiar(5); Annamalai Chetty V. Cloete(6); and Narasimhalu Chetty v. Bamayya Naidu(7). Mr. Setalvad drew our attention to the recent Full Bench decision of that court in Madana Mohana Naiko v. Krupasindhu Naiko(1). That case, however, concerned the second part of section 12 and was not concerned directly with the construction to be placed the first part of the section. It, however, contains certain observations indicating that in the opinion of the judges there was no ground for this restricted construction of the word " valuation " in section 12 and that the finality declared by section 12 attached not only to valuation pure and simple but also attached to decisions relating to category under which a suit or appeal falls for purposes of court-fee. These obiter observations, however, cannot be said to ,,overrule the earlier Full Beach decision of that court in Lakshmi Amma v. Janamajayam Nambiar(5). In a
(1) I.I.R.(1940) 2 Cal. 166.
(2) (1889) I.L.R. II All. 91, F.B.
(3) 1919 Punjab Record 16.
(4) A I.R. 1931 Lah. 378.
(5) (1894) 4 M.L.J. 183, F.B.
(6) (1882) I.L.R. 4 Mad. 204.
(7) A.I.R. 1942 Mad. 502.
(8) A.I.R. 1937 Mad. 81.
later decision in Narasimhalu Chetty v. Bamayya Naidu(1), the decision of the Full Bench was explained as not in any way overruling the decision in Lakshmi Amma v. Janamajayam Nambiar(2). All recent decisions of the Bombay High Court have taken the same view: Vide Dada v. Nagesh(3); Krishnaji Bari Dhandhere v. Gopal Narain Dhandhere(4). Mr. Setalvad drew our attention to an earlier decision of the Bombay High Court in Vithal Krishna v. Balakrishna Janardan(5). In that case the court undoubtedly held that no appeal lay and the finality declared by section 12 was comprehensive enough to include all questions whether relating to category or valuation pure and simple. It was, however, held that the High Court could correct an erroneous decision in the exercise of its revisional powers. Thus the finality declared by section 12 was destroyed by the exercise of powers of appeal under the guise of exercising revisional jurisdiction. In Patna and Oudh the game view has been taken as in Lahore. Vide Chandramoni Koer v. Basdeo Narain Singh (6); Gumani v. Banwari(7). It thus appears that the consensus of judicial opinion is against the construction suggested by Mr. Setalvad. We think that the construction given to the language in section 12 in these decisions is right, and our reasons for saying so are these: The difference in the phraseology employed in sections 5 and 12 of the Court-Fees Act indicates that the scope of section 12 is narrower than that of section 5. Section 5 which declares decisions questions of court-fee whenever they arise in the chartered High Courts as final makes a decision as to the necessity of paying a fee or the amount thereof final. Whereas section 12 makes a decision every question relating to valuation for the purpose of determining the amount of any fee payable under chapter 3 a plaint or memorandum of appeal final. Had section 12 been drafted somewhat as follows
(i) A.I.R. 1942 Mad. 502.(5) (1886) I.L.R. lo Bom. 610, F.B, (2) (1894) 4 M.L.J. 183 F.B.(6) (1921) 4 P.L.J. 57. (3) (1899) I.L.R. 23 Bom. 486.(7) (1920) 54 I.C. 733. (4) A.I.R. 1936 Bom. 166.
"If any dispute arises as to the amount of any fee chargeable under this chapter a plaint or memorandum of appeal, it shall be decided by the court in which such plaint or memorandum is filed and such decision shall be final as between the parties, then the construction contended for by Mr. Setalvad might have been upheld. When the two sections in the same Act relating to the same subject matter have been drafted in different language, it is not unreasonable to infer that they were enacted with a different intention and that in one case the intention was to give finality to all decisions of the taxing officer or the taxing judge, as the case may be, while in the other case it was only intended to give finality to questions of fact that are decided by a court but not to questions of law. Whether a case falls under one particular section of the Act or another is a pure question of law and does not directly determine the valuation of the suit for 'purposes of court-fee. The question of determination of valuation or appraisement only arises after it is settled in what class or category it falls. It has been argued in some decisions that it is absolutely necessary to decide the category in which a case falls before assessing its value and therefore the determination of the question of category is necessarily involved in the determination of the valuation of the suit for purposes of court fee. This argument, though plausible, does not seem sound. The actual assessment of the value depends either arithmetical calculations or upon a valuation by an expert and the evidence led in the case, while the decision of the question of category is one of law and may well be said to be an independent question antecedent but not relating to valuation. The expression " valuation" interpreted in its ordinary meaning Of "appraisement", cannot be said to necessarily include within its ambit the question of category which is a matter of law. The construction placed this section by a long course of decisions is one which reconciles the provisions of the Court-Fees Act with that of the Code of Civil Procedure and does not make those provisions nugatory and is therefore more acceptable than the other constructions which would make the provisions of either one or the other of these statutes nugatory. Perhaps it may be possible to reconcile the provisions of the two statutes by holding that the finality declared by section 12 of the Court-Fees Act means that the parties cannot impugn such a decision by preferring an appeal but that it does not confer such decisions a complete immunity from examination in a higher court. In other words section 12 when it says that such a decision shall be final between the parties only makes the decision of the court a question of court-fee nonappealable and places it the same footing as other interlocutory non-appealable orders under the Code and it does no more than that. If a decision under section 12 is reached by assuming jurisdiction which the court does not possess or without observing the formalities which are prescribed for reaching such a) decision, the order obviously would be revisable by the High Court in the exercise of revisional powers. Similarly, when a party thinking that a decision under section 12 is palpably wrong takes the risk of his plaint being rejected or suit dismissed and then appeals from the order rejecting the plaint or from the decree dismissing the suit but not from the decision the question of court-fee, then it is open to him to challenge the interlocutory order even the question of court-fee made in the suit or apppeal. The word "finality" construed in the limited sense in which it is often used in statutes means that no appeal lies from an order of this character as such and it means no more than that.
Conceding for the sake of argument but not admitting-that Mr. Setalvad is right in his contention that section 12 is comprehensive enough to include within its ambit all questions relating to court-fee whether they involve a decision as to question of category or as to valuation simpliciter, in the present case the Judicial Commissioner decided none of these questions and: his decision cannot be said to be one falling within the ambit of section 12. All that the Judicial Commissioner decided was that as the suit could not be maintained without asking for relief No. 2, the same fee was payable the memorandum of appeal as the plaint. In substance the court decided an issue regarding the maintainability of the appeal without first deciding whether the appeal had been properly instituted in that court. No finality can attach to such a decision by the provisions of section 12, as in reality it decides no question within, the ambit of section 12 of the Court-Fees Act.
For the reasons given above the second objection raised by Mr. Setalvad that no appeal lies from the order of the Judicial Commissioner by special leave is without force and is overruled.
The result, is, that the appeal is allowed, the decision of the Judicial 'Commissioner dismissing the appeal is set aside and the case remanded to him for decision in accordance with law the basis that the memorandum of appeal presented to him was properly stamped. The appellants' costs of this appeal will be costs in the appeal in the Court of the Judicial Commissioner. Appeal allowed.
अधोलिखित नज़ीर भी उपर्युक्त मत का समर्थन करती है। इस प्रकरण में माननीय इलाहाबाद उच्च न्यायालय ने यह अभिकथित किया है कि यदि सिम्पल सिटर प्रकरण न्यायशुल्क की गणना के बावत वाद के मूल्यांकन से सम्बंधित है तो ऐसा अभिनिश्चय अंतिम होगा तथा यदि प्रकरण न्यायशुल्क अधिनियम के प्रावधानों की भिन्न-भिन्न कोटियों से सम्बंधित है तो रिवीजन पोषणीय होगा लेकिन यदि आदेश न्यायशुल्क की अदायगी के बावत है तो इस अधिनियम की धारा-6A के तहत अपीलीय होगा। उक्त नजीर व प्रतिपादित सिद्धांत इस प्रकार है -
१. Smt. Shail Agarwal vs. State of U.P., 2007(102) RD 9 ALL.-
1. The plaintiff presented a suit praying that the three sale deeds dated 1-11-2004 and 17-2-2006 be declared null and void and further prayed that the defendants be restrained from transferring the property on the basis of the sale deeds. In paragraph 12 of the plaint, the plaintiff disclosed the valuation of the sale deeds and on that basis, paid a sum of Rs. 1300.00 as Court-fee. The Munsarim submitted a report dated 19-7-2006 stating therein that as per the valuation given by the plaintiff, the total amount of Court-fee payable as per Section 7(iv-A) of the Court-fees Act is Rs. 62,792.50, whereas the plaintiff has only paid a sum of Rs. 1300.00 towards Court-fee. Consequently, the Munsarim reported that the remaining Court-fee was required to be paid by the plaintiff.
2. Pursuant to the aforesaid report, the plaintiff filed an objection dated 31-7-2006. which was registered as Misc. Case No. 136 of 2006. The plaintiff submitted that the Court-fee was not payable as per Section 7(iv-A) of the Court-fees Act and, in fact, the Court-fee was payable as per Article 17(iii) of Schedule II of the Court-fees Act, and therefore, the Court-fee paid by the plaintiff was correct and was in accordance with the provisions of Article 17(iii) of Schedule II of the Court-fees Act. The plaintiff therefore prayed that the report of the Munsarim be set aside.
3. The Civil Judge by an order dated 14-8-2006 rejected the objection raised by the plaintiff and upheld the report of the Munsarim and directed the plaintiff to clear the deficiency of the Court-fee so that the suit could be registered. Aggrieved, the plaintiff has filed the writ petition under Article 226/227 of the Constitution of India praying for the quashing of the order of the Civil Judge dated 14-8-2006.
4. Heard Sri B. B. Paul, the learned Counsel for the petitioner and Sri G.K. Khanna, the learned Standing Counsel.
5. A preliminary objection was raised by the Court with regard to the maintainability of the writ petition in view of Section 6-A of the Court-fees Act as applicable in the State of Uttar Pradesh.
6. The learned Counsel for the petitioner submitted that the impugned order was one under Section 12 of the Court-fees Act which had attained finality and that no appeal or revision lay against the said order. Consequently, the writ petition was the only forum for the redressal of the grievance of the petitioner. In support of his submission, the learned Counsel for the petitioner has placed reliance upon a decision of Full Bench of this Court in Messrs. Gupta & Co. v. Kripa Ram Brothers AIR 1934 All 620, in which it was held that a decision given by a Court in the trial of a suit under Section 12 of the Court-fees Act does not amount to a "case decided" as contemplated under Section 115 of the Code of Civil Procedure, and therefore, no revision lies against the said order.
7. The learned Counsel for the petitioner further laid stress on a division bench decision of this Court in the case of Ram Krishana Dhandhania v. Civil Judge (Senior Division), Kanpur Nagar , wherein the Court held-
Section 12 of the Act, 1870 deals with the decision of question as to valuation and it provides that such an issue shall be decided by the Court in which the plaint is filed and such decision shall be final between the parties to the suit. Thus, it is evident from the provisions of Section 12 of the Act, 1870 that the decision taken by the Court on such an issue shall be final between the parties but in case the superior Court while exercising the appellate or revisional jurisdiction comes to the conclusion that the issue has wrongly been decided to the detriment of the revenue, it can direct the party to make the deficiency good for the reasons that the object of the Act is not to arm a litigant with a weapon of technicality but to secure the revenue.
8. The learned Counsel for the petitioner further placed various judgments to show that the report of the Munsarim was incorrect, and that the Court-fee was only payable under Article 17(iii) of Schedule II of the Court-fees Act.
9. In my opinion, the writ petition is not maintainable at this stage.
10. Paragraph No. 35 of the General Rules Civil states as under:
35. Munsarim's duty in respect of plaints.- A Munsarim of a civil Court appointed to receive plaints shall examine each plaint presented to him, and shall report thereon whether the provisions of the Code and the Court-fees Act, have been observed. Whether the claim is within the jurisdiction of the Court, constitutes a cause of action, and has been presented within the period prescribed for the institution of such a suit, and whether the plaint is otherwise in proper form including that in a suit whether a notice under Section 80, C.P.C., necessary, such a notice has been given.
The Munsarim shall see that the actual date of the presentation of the plaint is entered upon the impressed stamp and adhesive label, if any, below the date of purchase endorsed on them.
On the back of all plaints the Munsarim shall note-
(a) date of presentation of the plaint,
(b) name of presenter,
(c) classification of suit, and
(d) court-fee paid.
11. From the aforesaid, it is clear that the Munsarim was required to report as to whether the provision of the Court-fees Act had been observed or not and whether proper Court-fee had been paid or not. In the present case, I find that the Munsarim has submitted a report as per paragraph No. 35 of the General Rules Civil, stating therein, that the Court-fee as per Section 7(iv-A) of the Court-fees Act was required to be paid and that the plaintiff had only paid a certain amount and had not paid the entire amount of the Court-fee. The Civil Judge, rejected the objection of the plaintiff, holding that the Court-fee was required to be paid under Section 7(iv-A) of the Court-fees Act and that Article 17(iii) of the Schedule II of the Court-fees Act had no application.
12. The question now is, whether the order passed by the Civil Judge is an order passed under Section 12 of the Court-fees Act or not ?
13. Sections 5 and 12 of the Court-fees Act confers finality on decision of matters effecting the valuation and Court-fee payable thereon. Section 5 of the Act has no application to the decision of the Civil Judge, and therefore, the said provision is not being considered.
14. Section 12 of the Court-fees Act reads as under:
12. Decision of question as to valuation.- (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 shrill 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 within such time as may be fixed by it, so much additional fee as would have been payable had the question been rightly decided. If such additional fee is not paid within the time fixed and the defaulter is the appellant, the appeal shall be dismissed, but if the defaulter is the respondent the Court shall inform the Collector who shall recover the deficiency as if it were an arrear of land revenue.
15. From the aforesaid, it is clear that this Section is confined to such decision on a question relating to the valuation for the purpose of determining the Court-fee.
16. The Supreme Court in Nemi Chand v. The Edward Mills Co. Ltd. held that the finality under Section 12 of the Court-Fees Act attaches only to a decision which concerns valuation simpliciter and that no finality attaches when a Court decides a question whether a case falls within one or the other category of the cases mentioned in the different sections and schedule of the Court-Fees Act.
17. In Lala Ram Babu v. Lala Ramesh Chandra 1957 ALJ 53, this Court held that a decision of the trial Court relating to the valuation of the subject-matter of the suit for the purpose of determining the amount of Court-fee payable is final between the parties and cannot be challenged in an appeal under Section 6-A of the Court-fees Act.
18. In Smt. Bibbi v. Shugan Chand , a Full Bench of this Court held that Section 12 of the Court-fees Act only attaches finality to the question of valuation and not to the category under which the suit falls. The Full Bench further held that the decision of the Civil Judge on the issue relating to Court-fee had not become final.
19. From the aforesaid decisions, it is clear that Section 12 of the Court-fees Act is not applicable in the present case. In the present case, the Civil Judge held that the Court-fee is payable under Section 7(iv-A) of the Court-fees Act and that Article 17(iii) of Schedule II of the Court-fees Act has no application. A decision on the question whether the suit falls under Section 7(v-A) or Article 17(iii) of Schedule II of the Court-fees Act is not a decision on a question relating to the valuation but on a question relating to the basis or the mode of computation of the Court-fee. Keeping this in mind, the Supreme Court in Nemi Chand case (supra) held that the finality declared by Section 12 is limited only to the question of valuation pure and simple and does not relate to the category under which a certain suit falls.
20. In Ram Krishna Dhindhania's case (supra) a Division Bench of this Court also held the finality is, however, with respect to arithmetical calculation and not with respect to classification, i.e., category under which the suit falls.
21. In view of the aforesaid, the contention of the learned Counsel for the petitioner is, that the order of the Civil Judge was one under Section 12 of the Court-fees Act and had become final is patently erroneous.
22. Section 6-A of the Court-fees Act as applicable in the State of U.P. reads as under:
6-A. Appeal against order to pay Court-fee.- (1) Any person called upon to make good a deficiency in Court-fee may appeal against such order as if it were an order appealable under Section 104 of the Code of Civil Procedure.
The party appearing shall file with the memorandum of appeal, a certified copy of the plaint together with that of the order appealed against.
(2) In case an appeal is filed under subsection (1), and the plaintiff does not make good the deficiency, all proceedings in the suit shall be stayed and all interim orders made, including an order granting an injunction or appointing a receiver, shall be discharged.
(3) A copy of the memorandum of appeal together with a copy of the plaint and of the order appealed against shall be sent forthwith by the appellate Court to the (Commissioner of Stamps).
(4) If such order is varied or reversed in appeal, the appellate Court shall if the deficiency has been made good before the appeal is decided grant to the appellant a certificate, authorising him to receive back from the Collector such amount as is determined by the appellate Court to have been paid in excess of the proper Court-fee.
(5) The Court may make such order for the payment of costs of such appeal as it deems fit, and where such costs are payable to the Government, they shall be recoverable as arrears of land revenue.
23. In my view, the order of the Civil Judge is an order which is appealable under Section 6-A of the Act. The question as to whether the Court-fee payable should be under Section 7(iv-A) or under Article 17(iii) of Schedule II of the Court-fees Act can be questioned by the plaintiff by filing an appeal under Section 6-A of the Court-fees Act.
24. In view of the aforesaid, the petitioner has a statutory remedy of filing an appeal under Section 6-A of the Court-fees Act as applicable in the State of Uttar Pradesh. The writ petition is therefore dismissed on the ground of an alternative remedy.
इसप्रकार उपयुक्त विधि व्यवस्थाओं से यह स्पष्ट हो जाता है कि न्यायशुल्क की गणना के बावत किये गए वाद के मूल्यांकन के आलोक में पारित आदेश अंतिम होता लेकिन यदि न्यायशुल्क की अदायगी का आदेश भी उक्त आक्षेपित आदेश में समाहित है तो ऐसा आदेश न्यायशुल्क अधिनियम की धारा-5 से इतर अपीलीय होगा जिसकी अपील का उपबंध इसी अधिनियम की धारा-6A में किया गया है। दूसरी तरफ यदि वाद के मुल्यांकन के आलोक में किये गए न्यायालय द्वारा पारित आदेश की परिधि में अन्य प्रावधानों को विचार में लेकर आदेश पारित किया गया है तो ऐसा आदेश निगरानी योग्य हो जायेगा।
व्यावहारिक समस्याएं -
अब यहाँ पर यह विचारणीय है कि वे व्यावहारिक समस्याएं जो एक विधि व्यवसायी के समक्ष आतीं हैं उन पर पृथक-पृथक तरीके से दृष्टिपात किया जाये। ये समस्याएं इस प्रकार है -
1- न्यायशुल्क के निर्धारण के लिए क्या देखा जाना है -
अगला विचारणीय प्रश्न यह है कि न्यायशुल्क के निर्धारण के लिए क्या देखा जाना है। न्यायशुल्क के उद्देश्य से न्यायालय को वादपत्र में याचित अनुतोष को देखना होगा और दावाकृत वास्तविक अनुतोष के निर्धारण के लिए वादपत्र के सार को विचार में लेना होगा। यहाँ यह भी ध्यान में रखना होगा कि वादपत्र का सार सदैव वादपत्र के सम्पूर्ण पठन पर आधारित होना चाहिए। इसका अभिप्राय यह है कि वादपत्र को खंड-खंड में पढ़कर निष्कर्ष नहीं निकला जायेगा। इस सम्बन्ध में देखें अधोलिखित नजीरें -
1-Chief Inspector of Stamps UP, Allahabad vs Mahanth Laxmi Narain, 1970 ALJ 119 Allhabad (7 JUDGES).
2-Smt Shefali Roy vs Hero Jaswant Dass, AIR 1992 All. 154 (DB).
यहाँ पर यह भी ध्यान रखना होगा कि न्यायशुल्क के प्रश्न का निर्धारण वादपत्र के अभिकथनो के आधार पर किया जायेगा। इसका अभिप्राय यह है इस स्तर पर बयान तहरीरी को विचार में नहीं लिया जा सकता है। माननीय उच्च न्यायालय ने Suresh And Ors. vs Chand And Ors. AIR 2007 All 113, के प्रकरण में प्रस्तर - 11 में यह अभिधारित किया है -
11. It is well settled law that the payment of court fee is dependent entirely upon the averments made in the plaint and relief claimed. The averments made in the written statement is not required to be examined. In the present case, the plaintiffs have prayed for two reliefs, namely, that they should be declared to be the half owners of the property in question on the basis of a registered Will left by their mother and the second relief is for the cancellation of the sale deed executed by the defendant in respect of their alleged share of the property.
यहाँ यह भी ध्यान रखना होगा कि इस स्तर पर वादपत्र को सही माना जायेगा जबतक कि वादपत्र की विरचना चालाकी से न्यायशुल्क के बचाने के आशय से न की गयी हो। इसका अभिप्राय यह है कि यदि वादपत्र व उसके अनुतोष की ड्राफ्टिंग कोलरेबल है तो न्यायालय परदे को हटा सकता है। माननीय उच्चत्तम न्यायालय ने कमलेश्वर किशोर सिंह बनाम पारस नाथ सिंह ,AIR 2002 SC 233 में उपर्युक्त तथ्यों की पुष्टि की है।
माननीय इलहाबाद उच्च न्यायालय ने कालू राम बनाम बाबू लाल- AIR, 1932 Allhabad 485, के प्रस्तर-9 में अभिकथित किया है कि
9. The Court has to see what is the nature of the suit and of the reliefs claimed having regard to the provisions of Section 7, Court-fees Act. If a substantive relief is claimed though clothed in the garb of a declaratory decree with a consequential relief, the Court is entitled to see what is the real nature of the relief and if satisfied that it is not a mere consequential relief but a substantive relief it can demand the proper court-fee on that relief irrespective of the arbitrary valuation put by the plaintiff in the plaint on the ostensible consequential relief. Suppose a plaintiff asks for a declaration that the defendant is liable to pay him money due under a certain bond and also asks for recovery of that amount; or suppose that he asks for a declaration that he is the owner of certain property and is entitled to its possession and asks for recovery of its possession : surely the reliefs for the recovery of money or for the recovery of possession cannot be treated as a mere consequential relief which can be arbitrarily valued at any low figure and court-fees paid on that arbitrary valuation only. In our opinion where a suit is for the cancellation of an instrument under the provisions of Section 39, Specific Belief Act the relief is not a declaratory one. It falls neither under Section 7(4)(c) nor under Schedule 2, Article 17(3), but, under the residuary article, Schedule 1, Article 1, Court-fees Act. We hold therefore that the court-fee payable on the first relief is governed by Schedule 1, Article 1.
2-क्या बाजारी मूल्य का निर्धारण शर्किल रेट के आधार पर किया जा सकता है -
अगला विचारणीय प्रश्न यह है कि क्या शर्किल रेट विवादित संपत्ति के बाजारी मूल्य के निर्धारण का आधार न्यायशुल्क अदा करने के उद्देश्य से हो सकता है। इस सम्बन्ध में लेखक का मत है की शर्किल रेट बाजारी मूल्य के निर्धारण का आधार नहीं हो सकता क्योंकि शर्किल रेट का मूल उद्देश्य केवल guiding factor के रूप में काम करना होता है। दूसरा कारण यह भी है कि मार्केट वैल्यू शर्किल रेट से कम भी हो सकती है तथा ज्यादा भी हो सकती है। माननीय इलाहाबाद उच्च न्यायालय ने अमित कुमार त्यागी बनाम उत्तर प्रदेश राज्य, AIR 2014 All. 40 के प्रस्तर-6 में यह प्रतिपादित किया है -
6. It is rightly contended that under the provisions of Act, 1899 stamp duty is payable on the market value of property in transaction of sale deed. It is also true that market value does not mean circle rate itself but it is only a guiding factor. The Collector has to determine market value taking into account various factors. In the case in hand the Additional Collector has simply referred to circle rate and in a mechanical way, passed impugned order enhancing even circle rate by 25%.
जैसा कि विदित है कि विवादित संपत्ति के बाजारी मूल्य की गणना वादपत्र संस्थित होने वाली तिथि से की जाएगी। पाठकगण के समक्ष यह दुविधा होगी की हम मार्केट वैल्यू की गणना कैसे करें। इस सम्बन्ध में लेखक का मत है की जब सम्पत्ति किसी सरकारी राजस्व के अधीन है तो उसकी गणना के सम्बन्ध में कोई परेशानी नहीं है उसका विस्तार से विवरण व विश्लेषण आलेख के ऊपरी भाग में किया जा चुका है। यदि संपत्ति आबादी भूमि, भवन या बाग है तो उसकी मार्केट वैल्यू का निर्धारण आस- पास की संपत्ति के बावत निष्पादित बैनामों में आधार पर किया जा सकता है। दूसरी तरफ न्यायलाय शुल्क अधिनियम की धारा-९ सहपठित धारा-75 व आदेश-२६ नियम-9 जा० दी० के तहत विशेषज्ञ को भी न्यायालय द्वारा इस हेतु नियुक्त किया जा सकता है और ऐसे विशेषज्ञ कमिश्नर की रिपोर्ट के आधार पर सम्पत्ति के बाजारी मूल्य की गणना की जा सकती है।
वाद के मूल्यांकन के बावत न्यायालय साक्ष्य कब ले सकता है -
जैसा की विदित है की वादों के मूल्यांकन अधिनियम की धारा-11 (3 ) यह प्रावधानित करती है कि जब किसी वाद में अपीलीय न्यायालय यह पाता है कि वाद के मूल्याङ्कन के विरुद आपत्ति प्रथम स्तर पर उठायी गयी थी अथवा वाद के मूल्यांकन पर की गयी आपत्ति प्रकरण को गुण-दोष पर प्रभावित करने वाली है तो ऐसा अपीलीय या निगरानी न्यायालय वाद को रिमांड करते हुए साक्ष्य लिए जाने का आदेश दे सकता है और वाद के मूल्यांकन के बावत वाद बिंदु को विरचित कर निस्तारण का आदेश विचारण न्यायालय को देगा।
दूसरी तरफ यदि दौरान वाद विवादित संपत्ति में प्रतिवादी द्वारा निर्माण किये जाने का अभिकथन करते हुए वादपत्र में संशोधन करते हुए अनुतोष की याचना वादी द्वारा की गयी है तो न्यायालय इस बावत कि कितना निर्माण पहले का है तथा कितना दौरान वाद किया गया है इस बावत पक्षकारों से साक्ष्य की अपेक्षा कर सकता है। माननीय इलाहाबाद उच्च न्यायालय ने चंद्रपति त्रिपाठी बनाम सूर्यमणि -AIR, 1975 Allhabad 430 के प्रस्तर-7 में अधोलिखित प्रकार से इसे अवधारित किया है-
7. While disposing of the two issues the Court below had observed that the value of the building and other machinery etc. on the Land belonging to the defendants shall not be taken into consideration in determining the question of jurisdiction and court-fees. This view is erroneous and not correct. In his plaint the plaintiff was claiming permanent injunction, a prohibitory injunction, possession and demolition of the constructions already made by the defendants or which they might make during the pendency of the suit. Defendant No. 1 in his written statement disclosed certain constructions which he had already made. The Court below should have found out by taking evidence of the parties what construction had already taken place before the filing of suit and what constructions had been made by the contesting defendant after the filing of the suit and regarding which there is a prayer for demolition. After valuing these constructions etc., the Court should then proceed with the decision of the question of jurisdiction and court-fees. This has not been done. This Court in the ruling reported in Shanti Prasad v. Mahabir Singh, 1957 All LJ 431 = (AIR 1957 All 402) (FB) has laid down guidelines while disposing of the questions of the valuation and the court-fees.
माननीय उच्च न्यायालय में रिट अधिकारिता के आलोक में देय न्यायशुल्क की गणना कैसे की जाएगी -
जैसा कि विदित है न्यायशुल्क अधिनियम की अनुसूची-2 के अनुच्छेद - 1 में रिट के बावत मु०-100 रूपये न्यायशुल्क का प्रावधान किया गया है। इस सम्बन्ध में कोई मतभेद नहीं है लेकिन समस्या वहाँ उत्पन्न हो जाती है जहाँ पर एक ही याचिका में एक से अधिक याची होते है।
इस सम्बन्ध में सर्वप्रथम माननीय उच्त्तम न्यायालय ने Mota Singh And Ors. vs State Of Haryana And Ors. AIR 1981 SC 484, 1980 Supp (1) SCC 600, 1980 (12) UJ 913 SC.
1. We nave carefully gone through the office report prepared pursuant to the directions given by us. We are prima facie satisfied that the petitioners have not paid Court fees legally payable and that the petitioner have so modeled the title clause of the petitions as may indicate that the payment of the legally payable Court fee could be evaded. Having to the mature of these cases where every owner of a truck plying his truck for transport of goods has a liability to pay tax impugned in the petition, each one has his own independent cause of action. A firm as understood under the Partnership Act or company as understood under t is Indian Companies Act, if it is entitled in law to commence action either in the firm name or in the Company's name, can do so by filing a petition for the benefit of the company or the partnership and in such a case Court fee would be payable depending upon the legal status of the petitioner. But it is too much to expect that different truck owners having no relation with each other either as partners of any other legally subsisting jural relationship of association of persons would be liable to pay only one set of Court fee simply because they have joined as petitioners in one petition. Each one has his own cause of action arising out of the libility to pay tax individually and the petition of each one would be a separate and independent petition and each such person would be liable to pay legally payable Court fee on his pettion. It would be a travesty of law if one were to hold that as each one uses high way, be has common cause of action with the rest oi truck pliers.
2. We are, therefore, of the opinion that the office should scrutinizes fresh each one of the cases referred to in the office report and ascertain whether requisite Court fee has been paid in each of them. In ascertaining this fact, the office should ascertain whether there are number of petitioners who are combined in one petition the petition of each qua the co-petitioners, and the relief claimed, and determine the liability of each such petitioner to pay Court-fee for the relief sought by him. If one such ascertainment and determination Court-fee is shown to be payable by different petitioners who have joined together in one petition learned advocates appearing for them should be called upon to nuke good the deficit Court fee by or before October 31, 1980.
3. In the deficit Court-fee is not paid to any case by the learned advocate appearing for such party, in order to avoid any hardship and injustice to the innocent parties the office should bring the matter to the notice of the Court and seek a direction whether a notice be issued to each of such petitioner in respect of whom deficit Court-fee it not paid intimating to him that he should pay up the deficit Court fee within the time to be specified in the notice and giving further intimation that if the deficit Court fee is not made on or before the specified date the petition will be posted for further orders before the Court on November 4, 1980.
4. We also hereby direct that all cases shown in the office report in any event be posted before the Court on November 4, 1980, with a report whether the deficit Court fee in each case has been paid or not.
इस उपर्युक्त प्रकरण में माननीय उच्त्तम न्यायालय ने यह स्पष्ट कर दिया की यदि वाद हेतुक भिन्न-भिन्न है और व्यक्तियों के संघ में कोई विधिक सम्बन्ध नहीं है और ऐसे व्यक्तियों द्वारा एक साथ याचिका योजित की जाती है तो ऐसे प्रत्येक व्यक्ति के पृथक- पृथक न्यायशुल्क अदा करना होगा।
Umesh Chand Vinod Kumar And Ors. vs Krishi Utpadan Mandi Samiti And ... : AIR 1984 All 46
1. A Division Bench of our Court has referred five questions of law to a larger Bench. The questions are--
1. Whether an association of persons, registered or unregistered can maintain a petition under Article 226 of the Constitution for the enforcement of the rights of its members as distinguished from the enforcement of its own rights?
2. Whether a single writ petition under Article 226 of the Constitution is maintainable on behalf of more than one petitioners, not connected with each other as partners or those who have no other legally subsisting jural relationship, where the questions of law and fact, Involved in the petition, are common?
3. In case the answer to question No. 1 is in the affirmative, whether only one set of court-fees would be payable on such petition or each such individual petitioner has to pay court-fees separately?
4. In case answer to question No. 1 is in the negative, whether the defect of misjoinder of several petitioners in the writ petition can be cured by requiring each such petitioner to pay separate court-fees?
5. Whether the petition is maintainable for questioning similar actions taken by different Mandi Samitis independently of each other in cases where the aggrieved party seeks relief against each such committee on identical grounds?
2. These questions arise out of writ petitions filed by a large number of persons jointly. For instance, in Writ Petition No. 13367 of 1981 36 partnership firms have filed a single writ petition. Each such firm carries on business independently and under a licence granted to it separately by the Mandi Samiti.
3. In Writ Petition No. 6886 of 1980 there are 22 petitioners. Petitioners 1 to 21 are traders who carry on business of commission agent in finished tobacco. Petitioner No. 2 is a registered association of which petitioners Nos. 1 to 21 are members.
4. In each writ petition the petitioners claim that the Mandi Samiti is not entitled to charge market fee. They pray that the Mandi Samiti be directed not to demand payment of market fee. In some cases they have prayed for quashing of the notices issued by the Mandi Samiti for filing returns and paying the market fee.
5. In each writ petition the ground of attack is common to all various petitioners. For instance, in Writ Petition No. 6886 of 1980 all the 22 petitioners claim that tobacco is not a specified agricultural produce. The Mandi Samiti is hence not entitled to charge any market fee in respect of transactions of manufactured tobacco. In Writ Petition No. 133/67 of 1981 all the 36 petitioners state that since the Mandi Samiti does not render any service, it is not entitled to charge market fee from the traders.
6. At the hearing of the writ petitions the respondents raised a preliminary objection. It was submitted that an association of traders had no locus standi to file a writ petition on behalf of the traders when no right of the association as such was being adversely affected by the impugned action of the Mandi Samiti It was also urged that the various traders have an independent cause of action in respect of their liability to pay market fee. They cannot validly join in a single writ petition. In any event they must pay separate sets of court-fees.
7. It has also urged that in some cases several Mandi Samitis have been made defendants. They may have different defences. This will lead to confusion and multifariousness. Such a writ petition is not maintainable.
8. The Division Bench felt that the questions raised by these preliminary objections should more properly engage the attention of a larger Bench. Accordingly the Bench has referred the aforesaid questions of law for decision by a larger Bench, That is how the matter has come before this Full Bench.
9. We shall deal with the questions seriatim. Question No. 1 : "Whether an association of persons, registered or unregistered can maintain a petition under Article 226 of the Constitution for the enforcement of the rights of its members at distinguished, from the enforcement of its own rights?
10. Article 226 of the Constitution confers very wide power on the High Courts for enforcement of rights. It is implicit that the relief asked for must be one to enforce a legal right.
11. In Madan Gopal's case AIR 1952 SC 12 it was held that the existence of the right is the foundation of the exercise of jurisdiction under Article 226 of the Constitution.
12. Charanjit Lal's case AIR 1951 SC 41 decided that the legal right that can be enforced under Article 32 must ordinarily be the right of the petitioner himself who complains of infraction of puch right. Calcutta Gas Co. AIR 1962 SC 1044, holds that the same principle applies to a petition under Article 226. The Supreme Court reiterated these principles in Venkateswara's case AIR 1966 SC 828.
13. In the Bank Nationalisation case AIR 1970 SC 564 the Supreme Court held that a shareholder, a depositor or & director of a company registered under the Companies Act may not be entitled to move a petition for infringement of the right of the Company unless by the action impugned by him his rights are also infringed. In other words, the petitioner may seek relief in respect of his own rights and not of others.
14. In Indian Sugar Mills Association case AIR 1951 All 1 a Full Bench of our Court held that a registered trade union is a distinct and separate person from the various members and it may not sue cm behalf of its members if its own interests are not affected unless by the rules and regulations of an association provision has been made giving to the association the right to represent the members in any legal proceedings before the Court. The reason being that without any such express autrorisation it cannot be held that the association had a right to move the court on behalf of its members because any order passed in these proceedings will not bind the mills.
15. In Fertilizer Corporation's case AIR 1981 SC 344 Chandrachud, C.J. speaking for the majority ruled that the question whether a person has the locus to file a proceeding depends mostly and often on whether he possesses a legal right and that right is violated. But, in an appropriate case, it may become necessary in the changing awareness of legal rights and social obligations to take a broader view of the question of locus to initiate a proceeding, be it under Article 226 or under Article 32 of the Constitution. (Para 23)
16. Krishna Iyer, J. dealt with the question of access to justice elaborately. In paragraph 44, He observed :
"Public interest litigation is part of the process of participative justice and "standing" in civil litigation of that pattern must have liberal reception at the judicial door-steps."
The concept of locus standi in public interest litigation was further explained by his Lordship in paragraph 48 where he observed:
"If a citizen is no more than a wayfarer or officious intervener without any interest or concern beyond what belongs to any one of the 660 million people of this country, the door of the court will not be ajar for him. But if he belongs to an organisation which has special interest in the subject matter, if he has some concern deeper than that of a busybody, he cannot be told off at the gates, although whether the issue raised by him is justiciable may still remain to be considered. I, therefore, take the view that the present petition would clearly have been permissible under Article 226."
See judgments of Krishna Iyer J. in (1975) 2 SCC 703 : (AIR 1975 SC 2092) and (1976) 2 SCC 291: (AIR 1976 SC 242).
17. The question of "standing" was the subject of a passing observation by Krishna Iyer, J. in Akhil Bharatiya Soshit Karamchari Sangh's case AIR 1981 SC 298 (to which the other two learned Judges constituting the Bench did not advert to). His Lordship observed (para 63):--
"A technical point is taken in the counter-affidavit that the 1st petitioner is an unrecognised association and that, therefore, the petition to that extent, is not sustainable. It has to be overruled. Whether the petitioners belong to a recognised union or not, the fact remains that a large body of persons with a common grievance exists and they have approached this Court under Article 32. Our current processual jurisprudence is not of individualistic Anglo-Indian mould. It is broad-based and people-oriented and envisions access to justice through 'class actions', 'public interest litigation', and 'representative proceedings'. Indeed, little Indians in large numbers seeking remedies in courts through collective proceedings, instead of being driven to an expensive plurality of litigations, is an affirmation of participative justice in our democracy. We have no hesitation in holding that the narrow concept of 'cause of action' and 'person aggrieved' and individual litigation is becoming obsolescent in some jurisdictions. It must fairly be stated that the learned Attorney General has taken no objection to a non-recognized association maintaining the writ petitions."
According to these observations the concept of 'cause of action' and 'person aggrieved' has become obsolescent in some jurisdictions, like 'public interest litigation' by little Indians in large numbers seeking remedies in courts. In such a case alone an association of little Indians may be permitted to sue on their behalf. These observations graft an exception to the traditional rule of locus standi. They will not cover the case of an association suing on behalf of its members where its own interests are not affected and where its members do not answer the description of little Indians.
17A. Another exception to the traditional rule of locus standi was discussed in People's Union for Democratic Rights case AIR 1982 SC 1473 at p. 1483 :
"Where judicial redress is sought of a legal injury or legal wrong suffered by a person or class of persons who by reason of poverty, disability or socially or economically disadvantaged position are unable to approach the court and the court is moved for this pro-pose by a member of a public by addressing a letter drawing the attention of the Court to such legal injury or legal wrong, Court would cast aside all mechanical rules of procedure and entertain the letter as a writ petition on the judicial fide and take action upon it."
18. It appears that the little Indian mentioned by Krishna Iyer, J. is this person, that is, who by reason of poverty, disability or socially or economically disadvantaged position is un-able to approach the Court. The legal injury or wrong sufferred by such a person can be brought to the notice of the Court by any other person, be it an association of such persons or a member of the public.
19. The question of locus standi was elaborately dealt with in the Judges case AIR 1982 SC 149. The law laid down by the majority decision in that case was affirmed in Nakara's case AIR 1983 SC 130. There it was observed (at Pp. 149-50)--
"The majority decision of this Court in S.P. Gupta v. Union of India (AIR 1982 SC 149 at page 194) rules that any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provision of the Constitution or the law and seek enforcement of such public duty and the observance of such constitutional or legal provision."
Accordingly a public interest litigation can be initiated for judicial redress for public injury by a person not personally hurt. This principle will not apply where an association or organisation seeks to enforce a personal or private right of another, as distinguished from public injury.
20. To summarise, the position appears to be that an association of persons, registered or unregistered, can file a petition under Article 226 for enforcement of the rights of its members as distinguished from the enforcement at its own rights--
(1) In case members of such an association are themselves unable to approach the court by reason of poverty, disability or socially or economically disadvantaged position "little Indians").
(2) In case of a public injury leading to public interest litigation provided the association has some concern deeper than that of a way-farer or a busybody i.e. it has a special interest in the subject-matter.
(3) Where the rules or regulations of the association specifically authorise it to take legal proceedings on behalf of its members, so that any order passed by the court in such proceedings will be binding on the members.
21. In other cases an association whether registered or unregistered cannot maintain a petition under Article 226 for the enforcement or protection of the rights of its members, as distinguished from the enforcement of its own rights.
22. This is our answer to question No. 1. Question No. 2: Whether a single writ petition under Article 226 of the Constitution is maintainable on behalf of more than one petitioner not connected with each other as partners or those who have no other legal subsisting jural relationship where the questions of law and facts involved in the petitions axe common?
23. It will be seen that this question raises the issue of maintainability on ground of joinder or misjoindier of petitioners. Question No. 1, on the other hand, raised the point about locus standi or standing. The concept of locus standi is different and distinct from the question of joinder of parties. The former relates to the right of a person to approach the Court; the latter to join with others in approaching the Court. One may not be confused with the other.
24. The question of joinder came up for consideration before a Full Bench of this Court in Mall Singh's case 1968 All LJ 210. The Full Bench decided that an application under Article 226 of the Constitution is a proceeding in a court of civil jurisdiction, Section 141 of the Code of Civil Procedure was attracted. The provisions of the Code of Civil Procedure apply to proceedings under Article 226 in so far as the provisions of the Code can be made applicable. The majority view was:
"The joinder of more than one person under Article 226 can be permitted only where the right to relief arises from the same act or transaction and there is a common question of law or fact or where though the right of claim does not arise from the same act or transaction the petitioners are jointly interested in the cause or causes of action."
This view was based on a combined reading of Order 1, Rule 2, and Order 2, Rule 3 C. P. C. The Civil Procedure Code (Amendment) Act, 104 of 1976 added an Explanation to Section 141, stating that in this section the expression "proceedings" includes proceedings under Order 9, but does not include any proceeding under Article 226 of the Constitution. The result is that now the provisions of the Code of Civil Procedure are not, of their own force, applicable to writ petitions.
25. The question came up for consideration before the Supreme Court in Mota Singh's case AIR 1981 SC 484. In that case several truck operators filed a single writ petition challenging the liability of each one of them to pay tax. The Court observed (at p. 485)--
"Having regard to the nature of these cases where every owner of a truck plying his truck for transport of goods has a liability to pay tax impugned in the petition, each one has his own independent cause of action. A firm as understood under the Partnership Act or a Company as understood under the Indian Companies Act, if it is entitled in a law to commence action either in the firm name or in the Company's name can do so by filing a petition for the benefit of the Company or the partnership and in such a case court-fee would be payable depending upon the legal status of the petitioner. But it is too much to expect that different truck owners having no relation with each other either as partners or any other legally subsisting jural relationship of association of persons would be liable to pay only one set of court-fee simply because they have joined as petitioners in one petition. Each one has his own cause of action arising out of the liability to pay tax individually and the petition of each one would be a separate and independent petition and each such person would be liable to pay legally payable court-fee on his petition. It would be a travesty of law if one were to hold that as each one uses high way, he was common cause of action with the rest of truck pliers".
26. The relevant part of the observations relating to joinder of parties is--
"Having regard to the nature of these eases where every owner of a truck plying his truck for transport of goods has a liability to pay tax impugned in the petition, each one has his own independent cause of action .....
Each one has his own cause of action arising out of the liability to pay tax individually and the petition of each one would be a separate and independent petition ....."
27. It was further held:
"It would be a travesty of law if one were to hold that as each one uses highway, he has common cause of action with the rest of truck pliers''.
28. It appears to us that according to this decision a joint writ petition would be validly maintainable if there is legally subsisting jural relationship of association of persons between them or if they have the same cause of action. In substance, this decision applies the same principle of procedure as was enunciated by the Full Bench of our Court in Mall Singh's case (1968 All LJ 210), namely, generally joinder of more than one person can be permitted in a proceeding under Article 226 where the right to relief arises out of the same act or transaction or where the petitioners are jointly interested in the cause of action and a common question of law or fact arises. In other words, joinder of more than one person is permissible when the cause of action is the same. Such joinder may not be permissible if the cause of action is similar.
29. Our attention was invited, to a Division Bench decision of this Court in Manzoor Ahmad Khan v. State of U. P. (Civil Misc. Writ Petition No. 1254 of 1981). In that case it was held that the petitioners had separate causes of action and so they were liable to pay separate court-fee. To that extent the decision is correct.
30. Learned counsel for the petitioners submitted that Mota Singh's case (AIR 1981 SC 484) was not applicable because it related to petitions under Article 32 of the Constitution.
31. In Calcutta Gas Company's case (AIR 1962 SC 1044) the Supreme Court held that the same procedure applied to a petition under Article 226 as they applied, to a petition under Article 32.
32. Similarly, in Fertilizer Corporation's case (AIR 1981 SC 344) the Supreme Court reiterated that the same principle governs the question of locus standi. be it a proceeding under Article 226 or under Article 32 of the Constitution. In our opinion on the question of joinder of parties or causes of action the same principle would govern proceedings under Article 32 as well as Article 226. The decision in Mota Singh's case (AIR 1981 SC 484) will be equally applicable to a proceeding under Article 226.
33. Learned counsel for the petitioners relied upon the observations of Krishna Iyer, J. in Soshit Karamchari Sangh's case (AIR 1981 SC 298). Those observations related to locus standi. They had no bearing on the question of joinder of petitioners. The passing observation of Krishna Iyer, J. (to which the other two learned Judges constituting the Bench did not advert to) related to to technical point taken in the counter-affidavit (though not argued at the hearing) that the "first petitioner is a non-recognised association and that therefore, the petition to that extent is not sustuinable". This objection related to locus standi of the first petitioner. It had nothing to do with the question whether more than one person can validly join in a single writ petition.
34. Our answer to the second question is that a single writ petition under Article 226 of the Constitution by more than one petitioner, not connected with each other as partners or any other legally subsisting jural relationship, is maintainable where the right to relief arises from the same act or transaction; and there is a common question of law or fact or where though the right of claim does not arise from the same act or transaction, the petitioners are jointly interested in the cause or causes of action.
35. The third and the fourth questions are--
(3) In case the answer to question No. 1 is in the affirmative, whether only one set of court-fees would be payable on such petition or each such individual petitioner has to pay court-fees separately?
(4) In case answer to question No. 1 is in the negative, whether the defect of misjoinder of several petitioners in the writ petition can be cured by requiring each such petitioner to pay separate court-fees?
36. Where a single writ petition by an association or by more than one person is maintainable as mentioned above, only one set of court-fees would be payable. The levy of court-fee will not depend on the number of persons who have joined in the writ petition. But, where a single writ petition is not validly maintainable, but nontheless several persons join in it, then the principle laid down in Mota Singh's case (AIR 1981 SC 484) will apply; namely, each petitioner will have to pay court-fee separately as if he had filed a separate writ petition. In such cases the writ petition may not, in the discretion of the Court, be dismissed outright. The defect of misjoinder of petitioners can be cured by requiring each petitioner to pay separate court-fees.
37. Our answer to the third question is that where a single writ petition by an association or by more than one person is maintainable, then a single set of court-fees would be payable. Else, each petitioner is liable to pay separate court-fees.
38. Our answer to the fourth question is that the technical defect of mis-joinder of petitioners can, in the discretion of the Court, be cured, by each petitioner paying separate court-fees.
39. In the present group of writ petitions the position is that the petitioners are businessmen carrying on business in foodgrains etc. under licences granted to each one of them separately. They are, in effect, seeking enforcement of their individual rights. Their grievance is against the levy of market fee on each of them by the Mandi Samiti. The Mandi Samiti has issued notices to individual traders who are the petitioners requiring them to file returns as provided in the Rules and to pay market fee. They want the quashing of these notices issued to individual petitioners. In some of the writ petitions a direction has been sought that the Mandi Samiti is not entitled to levy market fee.
40. It is true that the principal question raised in these petitions is the same, but nonetheless each petitioner has an Independent cause of action because each petitioner has been made liable to pay market fee. The cause of action is not joint. Under these circumstances the petitioners cannot validly maintain a joint writ petition.
41. The petitioners may not, however, be dismissed on this ground, provided the petitioners pay separate court-fee for each one of them.
42. Question No. 5: "Whether one petition is maintainable for questioning similar actions taken by different Mandi Samitis independently of each other in cases whore the aggrieved party seeks relief against each such Committee on identical grounds?"
43. This question arises in writ petition No. 6886 of 1980. In that case the petitioners deal in manufactured tobacco. Their case is that tobacco is manufactured in various parts of the country outside the jurisdiction of Mandi Samiti, Kanpur, within whose jurisdiction they carry on trade. They import such tobacco in Kanpur or take it out of Kanpur, and this tobacco has to pass the territories of various other Mandi Samitis on the way. These other Samitis have fixed barriers on the road like octroi barrier of Municipal Boards, and they require the petitioners to pay market fees on the tobacco as soon as it enters within their respective jurisdictions. Such Committees have been arrayed as respondents 3 to 7 in the writ petition. The petitioners' case is that the demand of market fees by these several Mandi Samitis on the basis of entry of the tobacco within their respective territories is absolutely unauthorised. Their prayor is that these Mandi Samitis be restrained from demanding market fees from the petitioners on manufactured tobacco.
44. In view of the averments made in the writ petition there appears to be no legal obstacle to the impleadment of these various Mandi Samitis. If, of course, these Mandi Samitis raise different defences and the Court finds that it is not convenient or proper to adjudicate upon the cases of the various defendant in the same writ petition, it may order the petitioners to file separate writ petitions against each Mandi Samiti.
45. Our answer to the referred questions is as follows:--
Q. 1 Whether an association of persons, registered or unregistered, can maintain a petition under Article 226 of the Constitution for the enforcement of the rights of its members as distinguished from the enforcement of its own rights?
A. 1 The position appears to be that an association of persons, registered or unregistered, can file a petition under Article 226 for enforcement of the rights of its members as distinguished from the enforcement of its own rights (1) In case members of such an association are themselves unable to approach the court by reason of poverty, disability or socially or economically disadvantaged position (Title Indians").
(2) In case of a public injury leading to public interest litigation; provided the association has some concern deeper than that of a wayfarer or a busybody, i.e., it has a special interest in the subject-matter.
(3) Where the rules or regulations of the association specifically authorise it to take legal proceedings on behalf of its members, so that any order passed by the court in such proceedings will be binding on the members.
In other cases an association, whether registered or unregistered, cannot maintain a petition under Article 226 for the enforcement or protection of the fights of its members, as distinguished from the enforcement at its own rights.
Q. 2 Whether a single writ petition under Article 226 at the Constitution is maintainable on behalf of more than one petitioner, not connected with each other as partners of those who have no other legally subsisting jural relationship where the questions of law and fact, involved in the petition, are common?
A. 2 A single writ petition under Art 226 of the Constitution by more than one petitioner, not connected with each other as partners or any other legally subsisting jural relationship, is maintainable where the right to relief arises from the same act or transaction and there is a common question of law or fact or where though the right of claim does not arise from the same act or transaction the petitioners are jointly interested in the cause or causes of action.
Q. 3 In case the answer to question No. 1 is in the affirmative, whether only one set of court-fees would be payable on such petition or each such individual petitioner has to pay court-fees separately?
A. 3 Where a single writ petition by by an association or by more than one person is maintainable, then a single set of court-fees would be payable; Else, each petitioner is liable to pay separate court-fees.
Q. 4 In case answer to question No. 1 is in the negative, whether the defect of misjoinder of several petitioners in the writ petition can be cured by requiring each such petitioner to pay separate court-fees?
A. 4 The technical defect of misJoinder of petitioners can, in the discretion of the Court, be cured by each petitioner paying separate court-fees.
Q. 5 Whether the petition is maintainable for questioning similar actions taken by different Mandi Samitis Independently 0* each other in cases where the aggrievedi party seeks relief against each such Committee on identical grounds?
A. 5 Our answer to this question is in the affirmative.
46. Let the papers be laid before the concerned Bench with this opinion and answers
इस उपर्युक्त प्रकरण में माननीय इलहाबाद उच्च न्यायालय ने मोटा सिंह वाले प्रकरण को आधार बनाते हुए पांच प्रश्नों का उत्तर देते हुए स्थिति को और स्पष्ट किया है।
SALIK Vs. REGIONAL P F COMMISSIONER LAWS (ALL) - 2013-4-165
- (1.) Sri Salik and 137 other ex-employees of the erstwhile U.P. State Cement Corporation Ltd. Churk Sonebhadra have filed the present writ petition collectively praying for a writ of mandamus commanding the Regional Provident Commissioner-II, Varanasi and Official Liquidator to update their Provident Fund Accounts and pay the entire Provident Fund dues including pension. The facts leading to the filing of the writ petition is, that the petitioners contend that they are members of the Employees Provident Fund Trust created by the then management of the U.P. State Cement Corporation Ltd. under the Employees Provident Fund and Misc. Provisions Act, 1952, which trust was approved by the Provident Fund Department. In this trust, the provident fund contribution was regularly being deducted from the salary of the petitioners. The Churk Unit of the U.P. State Cement Corporation Ltd. was wound up by an order of the Company Judge dated 08.12.1999, and the Official Liquidator was appointed as the liquidator of the Company. From time to time, the Company Judge has been passing various orders directing the Official Liquidator to provide the correct status of the Provident Fund Trust. The accounts of this trust are also being audited through an Auditor recommended by the Regional Provident Fund Commissioner. It has been stated that accounts of this trust has now been transferred to the Regional Provident Fund Commissioner, Varanasi by the Secretary of the erstwhile Trust, and after the receipt of the audited accounts, some of the employees were paid their dues, but now the Provident Fund dues are not been released. It has been alleged that more than five years have passed and the provident fund accounts have not been updated nor the dues of the petitioners have been released. It has also been stated that the petitioners are entitled for pension under the provision of Employees Pension Scheme 1995 and, in this regard, representations have been made to the Official Liquidator, which has remained pending. It is contended that neither the representation has been decided nor the pension is being released. Consequently, the present writ petition was filed by the 137 ex employees of the erstwhile U.P. State Cement Corporation Ltd. for a writ of mandamus against the respondents.
(2.) At the time of the presentation of the writ petition, the stamp reporter made an endorsement that there is a deficiency of court fee by Rs. 14,280/-. The petitioners made an objection below the report of the stamp reporter objecting to the levy of the court fee contending that the petitioners are the members of the Employees Provident Fund Trust and have a jural relationship and that the relief claimed by them in the writ petition is one and the same for all the petitioners, and consequently, a single writ petition for their joint cause of action was maintainable and one set of Court fee was payable in view of the law laid down by the Full Bench of this Court in Umesh Chand Vinod Kumar Vs. Krishi Utpadan Mandi Samiti, 1984 AIR(All) 46 as well as the decision of the Division Bench of this Court in Saroja Nand Jha and others Vs. M/s. Hari Fertilizers, Varanasi and others,1994 2 UPLBEC 1228 as well the decision of the learned Single Judge in Track Parts of India Mazdoor Sabha Vs. State of U.P. And others, 2005 AIR(All) 77.
(3.) The objection placed by the petitioner was duly considered by the Taxing Officer who by its order dated 09th April, 2013 rejected the contention of the petitioner and upheld the deficiency of court fee as reported by the stamp reporter. The Taxing Officer held that each of the petitioner has an independent and separate cause of action and in view of the decision of the Supreme Court in Mota Singh Vs. State of Haryana, 1981 AIR(SC) 484 all the petitioners are liable to pay separate court fee, and consequently, directed the petitioners to make good the deficiency of court fee. The petitioner, being aggrieved by the order of the Taxing Officer, has preferred a separate application dated 11.04.2013 in the present writ petition objecting to the order of the Taxing Officer and praying that the order the Taxing Officer and the report of the stamp reporter be set aside and the writ petition be held to be maintainable on payment of one set of Court fee.;
इस उपर्युक्त प्रकरण में भी माननीय उच्त्तम न्यायालय द्वारा मोटा सिंह के प्रकरण में व्यक्त अभिमत का समर्थन किया गया है।
उपसंहार -
वादों के मूल्यांकन अधिनियम तथा न्यायशुल्क अधिनियम व नियमावली के सुसंगत प्रावधानों का उल्लेख व सम्यक विश्लेषण का प्रयास लेखकगण के द्वारा किया गया है। आवश्यकता पड़ने पर रेखाचित्रों का सहारा लिया गया है। इतना ही नहीं माननीय उच्त्तम व माननीय उच्च न्यायालय की सुसंगत नजीरों का उल्लेख किया गया है। सभी प्रावधानों को बहुत ही सरल भाषा में विश्लेषित करने का प्रयास किया गया है तथा समय- समय पर उक्त आलेख को अद्यतन करने का प्रयास भी किया जायेगा।
सन्दर्भ -
1- Bare act court fees act,1870.
2- Suits valuation act,1887
3- The uttar prades suits valuation rules,1942.
4- Law of court fees and suits valuation by MN Basu.
5-AIR Journal.
6- Indian kanoon.com
7- lawhelpline by SS Upadhyaya.
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