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Andhra Pradesh High Court
Damisetri Satyanarayana Murthi - Appellant
Versus
Damisetti Bhavanna - Respondent
Decided On : 04-18-56
COURT FEES ACT - SECTION 5 - REFERENCE TO TAXING JUDGE - JURISDICTION - TAXING JUDGE CANNOT REFER THE MATTER TO A BENCH OR A FULL BENCH - COURT FEES ACT, SCHEDULE II, ARTICLE 17-B - PARTITION SUIT - COURT-FEE PAYABLE ON APPEAL AGAINST FINAL DECREE.
Fact of the Case:
The Taxing Officer referred the question of whether, in respect of an appeal filed against a final decree in a partition suit, Court-fee is payable under Schedule II, Article 17-B of the Court-Fees Act, or ad valorem Court-fee should be paid on the amount decreed against him under Article 1, Schedule 1, to the Taxing Judge.
Finding of the Court:
The Taxing Judge held that it is not open to him to refer the matter to a Bench or a Full Bench and that he himself should hear and dispose of the reference even if there is conflict of authority.
Issues: 1. Whether the Taxing Judge has the jurisdiction to refer the matter to a Bench or a Full Bench? 2. Whether in respect of an appeal filed against a final decree in a partition suit, Court-fee is payable under Schedule II, Article 17-B of the Court-Fees Act, or ad valorem Court-fee should be paid on the amount decreed against him under Article 1, Schedule 1?
Ratio Decidendi: 1. The Taxing Judge does not have the jurisdiction to refer the matter to a Bench or a Full Bench. The jurisdiction to hear the reference arises immediately when the taxing officer makes the reference; where the reference is so made by the taxing officer to a Taxing Judge nominated by the Chief Justice, there is no further power in the Chief Justice to withdraw the reference and place it before Taxing Judges to be specially nominated by him or for the Taxing Judge to return the reference to the Chief Justice with a request that it might be placed before Taxing Judges to be nominated by him as held by the Lahore High Court. 2. In respect of an appeal filed against a final decree in a partition suit, Court-fee is payable under Schedule II, Article 17-B of the Court-Fees Act, and not ad valorem Court-fee as under Article 1 of Schedule 1.
Final Decision: The Court held that the Court-fee payable is the fixed Court-fee of Rs. 100 under Article 17-B of Schedule II of the Court-fees Act and not ad valorem Court-fee as under Article 1 of Schedule 1.
( 2 ) IN exercise of the powers conferred by section 5, the Chief Justice of the Andhra high Court has appointed the Deputy Registrar, Sri V. Krishnaswamy, as the taxing officer. As, in his opinion, the question arising for decision in the case was one of general importance, there being conflict of authority, he referred the matter to me as the Taxing Judge as the Chief Justice has by a general order directed that all references under section 5 of the Court-Fees Act should be placed before me for final decision.
( 3 ) ONE of the questions that was debated before me was, whether, in exercise of my powers as the Taxing Judge under section 5, it is open to me to refer the matter to a Division Bench or a Full Bench of this Court in order to solve the conflict of authority. The contention that was put forward by Sri K. Ramachandra Rao, the learned advocate for the petitioner, was that, under the terms of section 5, the taxing Judge acts as a persona designata and not as a Judge of the High Court and that he is not entitled to refer the matter to a Bench under rule 1 of the Appellate side Rules. There is considerable force in this argument. Rule 1 sets out the several matteis which a single Judge might hear and dispose of and the reference under section 5 of the Court-Fees Act is not mentioned as one of such matters in that rule. The power of a Judge of the High Court to decide the reference is derived specially, i. e. , by the appointment or nomination by the Chief Justice, under the terms of section 5. Under section 5 it is no doubt open to the Chief Justice to appoint a judge of the High Court either generally or specially as the Taxing Judge. The right to hear the reference springs into existence only when the taxing officer makes the reference on the ground that the question involved is in his opinion, one of general importance. He might refer the question to the final decision of the Chief Justice or of such Judge of the High Court as the Chief Justice might appoint, either generally or specially. On the plain language of the section, once the question is referred to the Taxing Judge, he is bound to decide it and he is not entitled to say that the question is one of great difficulty and that the matter should be settled by a Division Bench or a Full Bench of the High Court.
( 4 ) THE earliest case referred to on this point is the
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