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1966 Supreme(Goa) 8
Goa High Court
V.S.JETLEY,ALVARO DIAS,R. S. BINDHA
Ramanata Camotim Bamboloar - Appellant
Versus
learned Judge of Comarca Court of Ilhas, Panjim - Respondent
Decided On : 04/12/1966
S. Tamba, for Petitioner; Fernando Jorge Colaco Acting Govt. Pleader, for Respondent.
Headnote:
The petitioner filed a suit for partition by partition in the Court of Comarca of Ilhas at Panjim for possession by partition of his own share in certain properties which his wife had left on her death on 17th April 1954. The defendants in the suit were none other than the sons and daughters, all major, of Bambolcar and his deceased wife. Bambolcar had stamped the Plaint with ten rupee Court Fee on the contention that the suit falls within Article 17(vi) of Schedule II of the Act. The trial court did not accept that contention and held by its order dated 25th of February 1965 that the court fee must be paid ad valorem on the market price of the properties in dispute. It appears that the properties involved are of a value exceeding Rs. 25 lakhs. Bambolcar did not accept the verdict of the trial court but in order to proceed with the suit he put in the balance of court fee amounting to Rs. 2990. In this petition he challenges the correctness of the order dated 25th of February 1965. The court held that the order of the learned trial Court dated 25th of February 1965 amounts to the decision of a case and as such the first of the three conditions, on fulfilment of which a revision can be lodged in this Court, is also satisfied. Hence the present revision petition is maintainable under Section 8(2)(b) of the Regulation. The court further held that the suit falls under Article 17(vi) of Schedule II or under Section 7(iv)(b) of the Act. The court held that the suit of Bambolcar neither falls under Clause (iv)(b) nor under Clause (v) of Section 7 of the Act, and as such the trial court gave its verdict not on the authority of any judicial pronouncement, or on the basis of any statutory provision, but probably on the footing that it had been previously acting in that manner. Hence the order of the trial court cannot be sustained either on principle or on authority. The court also held that the proper venue for Bambolcar to apply for refund of the excess court fee paid by him is the trial court and not this Court. The court also held that the petitioner would be at sea so far as this provision is concerned. The court would rather rely on Section 8(2)(b)(ii). The court further held that the additional court-fee not being legally due had not the authority of law and, therefore, it has to be refunded. The court also held that the exercise of the jurisdiction under Section 8(2)(b) is discretinary. The court is not bound to interfere merely because the requirements of this section are satisfied. The court held that the case with which we are dealing is indeed a good case for exercising discretionary power in favour of the petitioner as the general equities are in his favour. It was because of the mistaken demand on the part of the Court that the petitioner deposited the additional court-fee. He was in a difficult situation. The court accepted the petition for revision and directed that the additional amount deposited be refunded.
Fact of the Case:
The petitioner filed a suit for partition by partition in the Court of Comarca of Ilhas at Panjim for possession by partition of his own share in certain properties which his wife had left on her death on 17th April 1954. The defendants in the suit were none other than the sons and daughters, all major, of Bambolcar and his deceased wife. Bambolcar had stamped the Plaint with ten rupee Court Fee on the contention that the suit falls within Article 17(vi) of Schedule II of the Act. The trial court did not accept that contention and held by its order dated 25th of February 1965 that the court fee must be paid ad valorem on the market price of the properties in dispute. It appears that the properties involved are of a value exceeding Rs. 25 lakhs. Bambolcar did not accept the verdict of the trial court but in order to proceed with the suit he put in the balance of court fee amounting to Rs. 2990. In this petition he challenges the correctness of the order dated 25th of February 1965.
Finding of the Court:
The court held that the order of the learned trial Court dated 25th of February 1965 amounts to the decision of a case and as such the first of the three conditions, on fulfilment of which a revision can be lodged in this Court, is also satisfied. Hence the present revision petition is maintainable under Section 8(2)(b) of the Regulation. The court further held that the suit falls under Article 17(vi) of Schedule II or under Section 7(iv)(b) of the Act. The court held that the suit of Bambolcar neither falls under Clause (iv)(b) nor under Clause (v) of Section 7 of the Act, and as such the trial court gave its verdict not on the authority of any judicial pronouncement, or on the basis of any statutory provision, but probably on the footing that it had been previously acting in that manner. Hence the order of the trial court cannot be sustained either on principle or on authority. The court also held that the proper venue for Bambolcar to apply for refund of the excess court fee paid by him is the trial court and not this Court. The court also held that the petitioner would be at sea so far as this provision is concerned. The court would rather rely on Section 8(2)(b)(ii). The court further held that the additional court-fee not being legally due had not the authority of law and, therefore, it has to be refunded. The court also held that the exercise of the jurisdiction under Section 8(2)(b) is discretinary. The court is not bound to interfere merely because the requirements of this section are satisfied. The court held that the case with which we are dealing is indeed a good case for exercising discretionary power in favour of the petitioner as the general equities are in his favour. It was because of the mistaken demand on the part of the Court that the petitioner deposited the additional court-fee. He was in a difficult situation. The court accepted the petition for revision and directed that the additional amount deposited be refunded.
Issues: 1. Whether the suit falls under Article 17(vi) of Schedule II or under Section 7(iv)(b) of the Act? 2. Whether the petitioner is entitled to refund of the excess court fee paid by him?
Ratio Decidendi: 1. The court held that the suit falls under Article 17(vi) of Schedule II of the Act. The court held that the suit of Bambolcar neither falls under Clause (iv)(b) nor under Clause (v) of Section 7 of the Act, and as such the trial court gave its verdict not on the authority of any judicial pronouncement, or on the basis of any statutory provision, but probably on the footing that it had been previously acting in that manner. Hence the order of the trial court cannot be sustained either on principle or on authority. 2. The court held that the additional court-fee not being legally due had not the authority of law and, therefore, it has to be refunded.
Final Decision: The court accepted the petition for revision and directed that the additional amount deposited be refunded.
R.S. BINDRA, A.J.C. : This Revision Petition raises divers points, which are at once interesting and vexing, in regard to the interpretation of certain provisions of the Court Fees Act 1870 (hereinafter referred to as the Act) and Section 8 of the Goa, Daman and Diu (Judicial Commissioner's Court) Regulation of 1963, hereinafter mentioned as the Regulation. The points debated before us during arguments, save one, are clearly not res Integra but the difficulty arises because of some divergence of judicial opinion in regard thereto.
2. The facts relevant to this petition are few and not in dispute. The petitioner Ramanata Camotim Bambolcar filed a suit in the Court of Comarca of Ilhas at Panjim for possession by partition of his own share in certain properties which his wife had left on her death on 17th April 1954, The defendants in the suit were none other than the sons and daughters, all major, of Bambolcar and his deceased wife. Bambolcar had stamped the Plaint with ten rupee Court Fee on the contention that the suit falls within Article 17(vi), Schedule II, of the Act. The trial court did not accept that contention and held by its order dated 25th of February 1965 that the court fee must be paid ad valorem 011 the market price of the properties in dispute. It appears that the properties involved are of a value exceeding Rs. 25 lakhs. Bambolcar did not accept the verdict of the trial court but in order to proceed with the suit he put in the balance of court fee amounting to Rs. 2990. In this petition he challenges the correctness of the order dated 25th of February 1965.
3. The first point that cropped up before this Court relates to the exact implication of the provisions of Section 12(i) of the Act. That Sub-Section of the Act is in the following terms :
"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." A plain reading of the Section would of course indicate that the decision of the Court in regard to the valuation of the suit for purpose of finding out the court fee payable is final. An examination of the judicial pronouncements of the different High Courts of India, however, reveals that there has been marked divergence of opinion as to the exact implications of this legal provision. Of late, it looks, the High Courts have been veering around the opinion that the finality mentioned in Section 12(i) relates only to the question of valuation, pure and simple, and it does not relate to the category or class under which a given suit falls. The conflict was set at rest with the authoritative pronouncements by the Supreme Court in the case Nemi Chand v. Edward Mills Co., Ltd., AIR 1953 SC 28. In this authority almost all the important judgments of the various Indian High Courts were examined and it was finally laid down that Section 12(i) comes into play only when an order is passed on a question of valuation pure and simple and not when it involves a decision of the category or class under which the suit falls. In face of this Supreme Court authority I see no utility in examining those authorities of the High Courts in which a contrary view was taken.
4. A perusal of the judgment of the trial court shows that the point raised by Bambolcar related to the category or class under which the suit fell for purposes of finding out the requisite court fee payable and that there was no contest on the point as to what is the value of the properties in dispute. This expression Valuation' used in Section 12(i) of the Act has to be understood in the sense in which it has been interpreted by the Supreme Court in the authority mentioned above.
Tersely put, the finality referred to in Section 12(i) is only in regard to arithmetical calculations of the court-fee payable
