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Allahbad High Court
JAGDISHSAHAI,LAKSHMIPRASAD,GURSHARANLAL
Maharaja Dharmendra Prasad Singh - Appellant
Versus
State of U. P. - Respondent
Decided On : 10/11/1968
COURT FEES ACT - REFERENCE TO LARGER BENCH - TAXING JUDGE - POWER TO MAKE REFERENCE - COURT FEES ACT, 1870 - SECTION 5 - INTERPRETATION - TAXING JUDGE NOT PERSONA DESIGNATA - CAN MAKE REFERENCE TO LARGER BENCH - RULES OF COURT - PROVISION FOR REFERENCE TO LARGER BENCH - APPLICABLE TO REFERENCES UNDER SECTION 5 OF THE ACT.
Fact of the Case:
A dispute arose regarding the deficiency of court fee in an appeal filed in the High Court. The Taxing Officer held that there was a deficiency of Rs. 6632.50 and allowed a month's time to make good the deficiency. The appellant filed a writ petition challenging the order of the Taxing Officer, which was allowed by a Division Bench of the High Court. The Taxing Officer then made a reference to the Taxing Judge, who referred the question to a larger Bench for decision.
Finding of the Court:
The Court held that the Taxing Judge is not a persona designata and can make a reference to a larger Bench under Section 5 of the Court Fees Act, 1870. The Court also held that the rules of the Court, which provide for reference to a larger Bench, are applicable to references under Section 5 of the Act.
Issues: 1. Whether the Taxing Judge is a persona designata and cannot make a reference to a larger Bench under Section 5 of the Court Fees Act, 1870? 2. Whether the rules of the Court, which provide for reference to a larger Bench, are applicable to references under Section 5 of the Act?
Ratio Decidendi: 1. The Court held that the Taxing Judge is not a persona designata because: a) The Taxing Officer is required to make a reference to the Chief Justice or the Taxing Judge, both of whom are members of a class, that is, of judges and fill a particular character, that is, of a judge. b) A reference under Section 5 is made in respect of court fee matter, which is a judicial function of the High Court. c) The Chief Justice or the Taxing Judge, while deciding a reference under Section 5 of the Act, act as Judges of the Court and not as persona designata. 2. The Court held that the rules of the Court, which provide for reference to a larger Bench, are applicable to references under Section 5 of the Act because: a) Section 13 (2) of the U. P. General Clauses Act allows the word 'Judge' occurring in Section 5 of the Act to be read as 'Judges', which means that the Chief Justice can appoint more than one Judge to hear a reference under Section 5 of the Act. b) The proviso to Rule 2 Chapter V of the Rules of the Court provides that a Judge may refer a case to a larger Bench, and there is no reason for holding that this power cannot be exercised in respect of a reference under Section 5 of the Act.
Final Decision: The Court answered the question referred to it in the affirmative and held that the reference made by the Taxing Judge to the Division Bench was competent.
SAHAI, J. :- This case has come to us on a reference made by a Division Bench of this Court consisting of two of us. (Lakshmi Prasad and Gur Sharan Lal, JJ.).
2. In First Appeal No. 29 of 1961 the Stamp Reporter reported a deficiency of Rs. 6632.50 in Court fee. The report of the Stamp Reporter was contested by the learned counsel for the appellant before the Taxing Officer (Deputy Registrar). The Taxing Officer held by means of an order dated 5-9-1961 that the report of the Stamp Reporter was correct and in fact there was a deficiency of Rs. 6632.50. He however allowed a month's time to the appellant to make good the deficiency. A request was made to the Taxing Officer to make a reference to the Judge appointed by the Chief Justice to decide generally references made by the Taxing Officer under Section 5 of the Act, hereinafter called the Taxing Judge, (Sahgal, J.). This, the Taxing Officer refused to do. Dissatisfied with the refusal of the Taxing Officer to make a reference to the Taxing Judge under the provisions of Sec. 5 of the Court Fees Act the appellant filed writ petition no. 252 of 1961 and prayed that the order of the Taxing Officer be quashed. A Division Bench of this Court allowed the Writ Petition and quashed the order of the Taxing Officer dated 5-9-1961. It directed the Taxing Officer to make a reference to the Taxing Judge.
3. The Taxing Officer then made a reference to the Taxing Judge and the Taxing Judge by means of an order dated 27-10-1967 referred the question to a larger Bench as to what would be the correct court fee payable in the instant case. As already stated earlier, that matter came up before a Division Bench of this Court of which two of us were members (Lakshmi Prasad and Gur Sharan Lal, JJ.).
4. In view of the conflict of authority on the question whether a Taxing Judge acting under the provisions of Section 5 of the Court Fees Act (hereinafter referred to as the Act) can refer a question to a larger Bench for decision, the learned Judges constituting the Division Bench referred the case to a Full Bench. That is how the matter has come up before us.
5. Section 5 of the Act reads:- "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 the 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 .........The Chief Justice shall declare who shall be taxing Officer within the meaning of the first paragraph of this section."
The section embodies the general rule that the Chief Justice shall allot work to the various Judges - a rule of necessity and of administrative convenience and one provided for in the High Court Rules, the Letters Patent and some of the earlier Government of India Acts. It does not create any persona designata. It only requires the Chief Justice to either hear the reference himself or nominate any other Judge of the Court to do so.
6. Section 5 of the Act gives the Taxing Officer a discretion in a case where he is of the opinion that the question raised before him is one of general importance, to refer the matter either to the Chief Justice or to such other Judge who has been appointed by the Chief Justice in that behalf either generally or specially in a case. In other words, he has the option to bypass the Taxing Judge and make a reference straightway to the Chief Justice or vice versa. If he makes the reference to the Chief Justice the latter can nominate any Judge to hear the reference even excluding the Taxing Judge. The submission that the Taxing Judge canno
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