In a case of return of plaint under Order VII Rule 10 invariably the plaint and the court-fee stamps on which also some part of the plaint and/or details thereof are typed and which have even been cancelled as per Section 30 of the Act, 1870 and the Rules are returned for presentation before the competent Court as it is, which on return, are accepted by the subsequent Court with a new registration number of the suit. The case at hand is an exceptional one where it was required to be returned. True, as stated by Shri Sudeep Seth, rejection of a plaint under Order VII Rule 11 is very different from return of plaint under Order VII Rule 10, especially as, the former is covered in the definition of 'Decree' contained in Section 2(2) C.P.C., but, this would be material and relevant only if return of the original court-fee stamps filed with the plaint, which is rejected, is sought, as, that would be impermissible. Here the return is of additional court-fee stamps offered consequent to amendment of the plaint which were not accepted and the plaint was rejected on the ground of non deposit of additional court-fee. Moreover, the analogy of return of plaint is being referred only to emphasise the return of court-fee stamps along with it and that such return, unless specifically barred, is not impermissible in the peculiar facts of the present case.
IN THE HIGH COURT OF ALLAHABAD
Misc. Single No. 6585 of 2014
Decided On: 27.04.2017
Ravindra Kumar Gupta Vs. Addl. Civil Judge (S.D.) and Ors.
Hon'ble Judges/Coram:
Rajan Roy, J.
Citation: MANU/UP/0931/2017
1. Heard Shri Sudeep Seth, learned counsel for the petitioners, learned Additional Chief Standing Counsel for the State and Shri Prashant Singh Gaur, learned counsel for the opposite party No. 3.
2. This is a petition under Article 227 of the Constitution of India seeking the following relief:-
"Wherefore it is most respectfully prayed that this Hon'ble Court may be pleased to quash/set-aside the impugned order dated 28-1-2014 passed by the Opposite Party No. 1 on application for return of court fees dated 25-1-2014 (C-73) preferred by Opposite Party No. 3 in R.S. No. 35 of 2009 (Rakesh Kumar Gupta v. Ravinder Kumar Gupta and others) (as contained in Annexure No. 1 to the writ petition). Further, the Opposite Party No. 2 may be directed to return the used impressed court fees of Rs. 1,34,708/- to the Opposite Party No. 1 for being consigned to the record room in R.S. No. 35 of 2009 (Rakesh Kumar Gupta v. Ravinder Kumar Gupta) or to the State Government, the Opposite Party No. 5. The Petition may be allowed with cost throughout."
3. The facts of case in brief are that the opposite party No. 3 filed a suit for declaration and paid requisite court-fee thereon. However, subsequently he amended the plaint so as to add a relief claiming possession of the property in question. The said amendment was allowed on 07.09.2012 and consequent to the amendment valuation of the suit got enhanced, therefore, additional court-fee was payable for which steps were ordered to be taken till 06.11.2012. Several dates were fixed, but, the additional court fee was not paid. In these circumstances, an application under Order VII Rule 11 read with 151 C.P.C. was filed by the petitioners for rejection of the plaint on 27.11.2012. In the meantime i.e. till pendency of this application the opposite party No. 3 herein submitted an application on 24.04.2013 alongwith the additional court-fee required amounting to Rs. 1,34,710/- in addition to court-fee of Rs. 700 already paid and requested for acceptance of the same. This application was numbered as C-62, whereas, the application of the petitioners under Order VII Rule 11 was numbered as C-57. Both the applications were considered and decided by the Court of Additional Civil Judge (Senior Division), Lucknow vide order dated 17.07.2013. The application for acceptance of court-fee was allowed, subject to payment of cost of Rs. 500/- and considering the fact that the additional court-fee had now been paid, and the matter should now be decided on merits, the application No. C-57 was disposed of accordingly without consideration on merits. This led to the filing of a Civil Revision under Section 115 C.P.C. before the High Court at its Lucknow Bench bearing Civil Revision No. 103 of 2013, by the petitioners herein, challenging the order of the Civil Court dated 17.07.2013. The said revision was allowed by this Court vide judgment dated 05.10.2013 on the ground that the Civil Court had erred in not deciding the application under Order VII Rule 11 C.P.C. on merits merely on the ground that the court-fee had been deposited by the plaintiff in the interregnum. The High Court opined that the said application for depositing of court-fee should not have been allowed without recording any reasons regarding the satisfaction as required under the proviso to Order VII Rule 11 C.P.C. The order dated 17.07.2013 was set-aside. The matter was remanded back to the trial Court to decide the application No. C-57 afresh on merits in accordance with law with the observation that in case the learned trial Court feels proper, it may grant time to the respondents-plaintiff for showing the cause of exceptional nature which had prevented them from depositing or supplying the requisite court-fee within the time provided by the Court.
4. On a perusal of the judgment dated 05.10.2013 it is evident that the order dated 17.07.2013 disposing of the two applications No. C-57 and C-62 was set-aside, meaning thereby, both the applications stood revived, therefore, even though this Court in its order directed for deciding the application No. C-57, the disposal afresh of the application No. C-62 was implied in it, as, both the applications were interlinked and the contention of Shri Sudeep Seth, learned counsel for the petitioners in this regard that the order dated 17.07.2013 accepting the court-fee on the application No. C-62 remained unaffected, is not acceptable as would be evident from the observation contained in Para 52 of the said judgment to the effect that the learned trial Court should not have allowed the application of the respondent-plaintiff to deposit the court-fee without recording any reason and satisfaction required under the proviso appended to Rule 11 Order VII C.P.C., therefore, the application No. C-62 was also to be considered again, obviously so, otherwise it would lead to an incongruous and incompatible situation. Therefore, the application in suit bearing Regular Suit No. 35 of 2009 was considered and the plaint of the opposite party No. 3-plaintiff was rejected on the ground of non compliance of the order dated 06.11.2012 for depositing requisite fee within time. Thus, application No. C-57 stood allowed and impliedly application No. C-62 for accepting the court-fee stood rejected. This order dated 20.12.2013 cannot be read and understood to mean that while additional court-fee deposited by means of application dated 24.04.2013 with a prayer for accepting the same stood allowed the application under Order VII Rule 11 C.P.C. for non depositing of additional court-fee was also allowed and the plaint was rejected on the ground of non deposit of such additional court-fee, as, on the face of it, it would be incongruous.
5. Be that as it may, the opposite party No. 3 herein filed an application dated 25.02.2014 before the Court of Additional Civil Judge (Senior Division), Lucknow requesting for return of court-fee and documents (C-10 and A-11). On 28.01.2014, which were submitted in Regular Suit No. 39 of 2009, whereupon, the Court concerned passed an order 'permitted', consequently, the aforesaid court-fee and documents were returned to the opposite party No. 3. Thereafter, the opposite party No. 3 filed a fresh Suit based on the same cause of action arraying the same parties seeking the same relief bearing Regular Suit No. 1661 of 2014 depositing therein the court-fee, including the same stamps offered as court-fee in the earlier suit which had been returned by the order of the earlier Court on 28.01.2014.
6. At this stage, it is not out of place to mention that even after rejection of the plaint a subsequent suit based on the same cause of action was maintainable under Order VII Rule 13.
7. It was submitted by Shri Sudeep Seth, learned counsel for the petitioners that there was no provision in the Act, 1870 for return or refund of fee on rejection of a plaint under Order VI Rule 11 (C). The Civil Court had no jurisdiction to permit return of used stamps already filed in the suit. The Court Fees Act does not permit return of court-fees by any Court after being filed in the court and utilized, specially as, the application dated 24.04.2013 for acceptance of the additional court-fee stamps had been allowed. Once it was allowed the Munasrim was under an obligation to cancel the stamps by punching the same and merely because he did not do so no benefit could not be given to the respondents herein of his omission.
8. In the alternative he submitted that assuming that the court-fee stamps could be returned there is no way the same could have been filed and used in the subsequent suit, as, they were clearly damaged, spoiled and unfit for use in the subsequent suit. In this regard he referred to the provisions of the Act, 1870 as also the Rules of 1942 and General Rules (Civil). According to him the Courts below have erred in upholding the impugned action. According to him Section 151 C.P.C. had no application in this case. According to him court-fee is revenue of the State, therefore, strict view of the matter is to be taken. With reference to the Rules of 1942 he submitted that refund or renewal of court-fee ought to have been sought. He also contended that rejection of plaint under Order VI Rule 11 falls within the meaning of decree under Section 2 (2) C.P.C., therefore, there is no question of return of court-fee.
9. On being confronted as to whether for renewal return of court-fee would be necessary or not he submitted that it could be returned but could not be used in the subsequent suit.
10. On the other hand Shri Prashant Singh Gaur, learned counsel appearing for the respondents submitted that there was no bar in returning the court-fee stamps, which in the facts of the present case could not be said to have been used nor unfit for use in the subsequent suit. The plaint having been rejected on the ground of non deposit of additional court-fee stamps within the stipulated time, it would be a travesty of justice to deny the return of the same and its use in the subsequent suit. He submitted that this was the normal practice in the Civil Court.
11. Shri Gaur also submitted that the prohibition of return of court-fee stamps on rejection of a plaint under Order VII Rule 11 is applicable with respect to the stamp paid originally on the plaint and during the applications filed therein, but, this will not preclude return of court-fee stamps offered for acceptance as additional court-fee after lapse of time granted consequent to enhancement of value of the suit on amendment of plaint, which was not accepted. It would be inequitable to deny the respondent-plaintiff the return of the stamps and its use in the subsequent suit when the first suit has been dismissed for the reasons aforesaid. He also submitted that as regards the objection to the use of such stamps in the subsequent suit is concerned, no such objection has yet been raised before the Civil Court, therefore, the said plea at this stage is premature and should be left for decision by the trial Court on filing of a written statement in this regard, which has not been done as yet and the proceedings are held up on account of interim order passed.
12. The short point involved herein is as to whether the earlier Court erred in permitting the return of court-fee submitted by the opposite party No. 3-plaintiff in the earlier suit and whether the same could have been filed/used by the opposite party No. 3 in the second suit or not?
13. It may be mentioned at this stage that as regards the sufficiency of court-fee in the subsequent suit which includes the permissibility of the returned court-fee 'being filed/used in the second suit', is required to be considered by the court where the said suit is pending on an objection being raised in this regard by the petitioners-defendants therein in their written statement, but, they have not yet filed the same and the proceedings of this suit have been stayed by this Court vide interim order dated 14.10.2014 passed in this writ petition.
14. In this regard the contention of Shri Sudeep Seth, learned counsel for the petitioners was that though such an objection could be raised, but, the petitioners would not be able to challenge the order of the earlier Court dated 28.01.2014, permitting the return of the court-fee, before the subsequent Court, therefore, both the issues being intertwined should be considered and decided in these proceedings.
15. The court-fee is payable in suits of a civil nature filed under the Code of Civil Procedure as per their valuation. While the valuation is to be determined as per the Suits Valuation Act, 1887 and U.P. Suits Valuation Regulation, 1942 the court fee is payable as per the Court Fees Act, 1870 as amended by the legislature of the State and the rules made thereunder, namely, the United Provinces Stamps Rules, 1942 which have been made not only under the Stamp Act but also under the powers conferred by Section 21 of the United Provinces Court Fees (Amendment) Act, 1938. Rule 2(a) of the said Rules of 1942 defines 'the Act' to mean the Indian Stamp Act, 1899 (II of 1898) or the Court Fees Act, 1870 (II of 1870), as in force for the time being in the United Provinces, according as the rule is under the one or the other of these Acts.
16. Order VII Rule 1 of the Code of Civil Procedure requires a statement of the value of the subject matter of the suit for the purposes of jurisdiction and of court-fees, so far as the case admits, to be mentioned in the plaint. Section 149 C.P.C. provides that where the whole or any part of fee prescribed for any document by the law for the time being in force relating to court-fees has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay whole or part, as the case may be, of such court-fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance.
17. The Court Fees Act, 1870 as amended by the U.P. Amendments prescribes the court-fee to be levied and other matters related thereto. Section 6 deals with filing fees on documents etc. in Mufassil Court or in Public Offices. Subsection 1 of Section 6 provides that except in the Courts hereinbefore mentioned, no document of any kinds specified as chargeable in the first or second Schedule to this Act annexed shall be filed, exhibited or recorded in any Court of Justice, or shall be received or furnished by any public officer, unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said Schedules as the proper fee for such documents. Sub-section 2 of Section 6 provides notwithstanding the provisions of sub-section (1), a court may receive plaint or memorandum of appeal in respect of which an insufficient fee has been paid, but no such plaint or memorandum of appeal shall be acted upon unless the plaintiff or the appellant, as the case may be, makes good the deficiency in court-fee within such time as may from time to time be fixed by the court. Sub-section 3 as it applies in the State of U.P. by virtue of an amendment by the U.P. Act No. 19 of 1938 provides for an objection as to the deficiencies in respect of any plaint or memorandum of appeal being raised by an officer mentioned in Section 24-A enjoining the Court to consider and decide the same before proceeding further with the suit or appeal.
18. Sub-section 4 provides a right of objection to the proper amount of court-fee payable otherwise than under sub-section (3), and enjoins the Court to decide such objection before proceeding with any other issue. Reference may be made in this regard to MANU/UP/0084/1960 : AIR (1960) Alld. 372; Narain Prasad and another v. Banarsi Das, wherein considering the aforesaid sub-section 4 this Court held that it provides a right of objection to the defendant in the suit which is separate and independent of the objection referred in sub-section 3 of Section 6.
19. Sub-section 5 provides that in case the deficiency in court-fee is made good within the time allowed by the Court, the date of the institution of the suit or appeal shall be deemed to be the date on which the suit was filed or the appeal presented. Needless to say that if the deficiency is not made good the plaint would be rejected. Sub-section (6) of Section 6, as applicable in State of U.P., provides that in all cases in which the report of the officer referred to in sub-section (3) is not accepted by the Court, a copy of the findings of the court together with a copy of the plaint shall forthwith be sent to the Commissioner of Stamps.
20. Section 6-A provides for an appeal against an order to pay court-fee. Sub-section 4 thereof provides that 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.
21. Section 6-B provides an opportunity to the Chief Inspector of Stamps to apply for revision of Court's order under Sub-section (3) of Section 6 if it is at variance with the opinion of the officer who questioned the deficiency in court-fee.
22. Section 6-C provides for a reference to High Court by Chief Controlling Revenue Authority, if he is of the opinion that the court-fee paid on any document filed in any civil court in a pending suit, appeal or other proceeding is insufficient, and that the question is one of general importance and no action under Section 6-B has been taken. If the High Court finds that the court-fee paid was insufficient, procedure prescribed by Sub-section (4) of Section 6-B for realization of the deficiency shall be followed as if the decision of the High Court were a declaration under that section.
23. Section 12 of the Act, 1870 provides that every question relating to valuation for the purpose of determining the amount of any free 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, but, as per Clause (ii) of Section 12 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.
24. Section 13 to 16 of the Act, 1870 deals with refund of fee. Section 13 is applicable if in an appeal or revision the rejection of plaint by the lower Court on any of the grounds mentioned in the Code of Civil Procedure is upturned and the appeal or plaint is ordered to be received, or if a suit is remanded in appeal on any of the grounds mentioned in Section 351 C.P.C. for a second decision by the lower Court, the Appellate Court shall grant to the appellant a certificate authorising him to receive back from the Collector the full amount of fee paid on the memorandum of appeal. It contains a proviso which is not relevant for our purpose. This provision does not apply to the facts of the present case, as, it is not a case of refund of court-fee paid on the memorandum of appeal. Likewise, the provisions contained in Section 14 and 15 relate to refund of fee of application for review of judgment and refund where Court reverses or modifies its former decision on the ground of mistake, therefore, they are also not applicable to the facts of the present case. Section 16 is also not applicable, as, it applies in cases where the court refers to the parties to the suit to any one of the mode of settlement of dispute referred to in Section 89 of the Code of Civil Procedure.
25. As already referred herein above, on the institution of a suit and filing of a plaint, court-fee is payable as is mentioned in Section 6(1) of the Act, 1870 as per the first or second schedule to the Act, 1870.
26. Section 21 of the Act, 1870 mentions the Power of Chief Controlling Revenue Authority to make rules consistent with this Act with the previous sanction of the State Government to provide for or regulate all or any of the following matters mentioned in sub-section 1 Clause (a) to (j). Clause (h) of Section 21 empowers the making of Rules regarding the circumstances in which stamps may be held to be damaged or spoiled. Clause (i) likewise permits making of rules as to the circumstances in which and the manner in which, allowance for used, damaged or spoiled stamps may be made. Section 25 of the Act, 1870 provides that all fees referred to in Section 3 or chargeable under this Act shall be collected by Stamps. Section 26 of the Act, 1870 provides that the stamps used to denote any fees chargeable under this Act shall be impressed or adhesive, or partly impressed and partly adhesive, as the Appropriate Government may, by notification in the Official Gazette from time to time direct. Section 27 of the Act, 1870 has been repealed by U.P. Act No. 19 of 1938.
27. Section 28 of the Act, 1870 provides that no document which ought to bear a stamp under this Act shall be of any validity, unless and until it is properly stamped. But, if any such document is through mistake or inadvertence received, filed or used in any Court or office without properly stamped the presiding Judge or the head of the office, as the case may be, or in the case of a High Court, any Judge or such Court, may, if he thinks fit, order that such document be stamped as he may direct, and, on such document being stamped accordingly, the same and every proceeding relative thereto shall be as valid as if it had been properly stamped in the first instance.
28. Section 30 of the Act, 1870 provides that no document requiring a stamp under this Act shall be filed or acted upon in any proceeding in any Court or office until the stamp has been cancelled. Such officer as the Court or the head of the office may from time to time appoint shall, on receiving any such document, forthwith effect such cancellation by punching out the figurehead so as to leave the amount designated on the stamps untouched, and the part removed by punching shall be burnt or otherwise destroyed.
29. Section 30-A of the Act, 1870 has been added by U.P. No. 19 of 1938. It relates to refund. It provides where allowance is made in this Act for damaged or spoiled stamps or where refund is permitted on the strength of a certificate granted by a Court, the Collector may, on the application of the holder of the same and after satisfying himself about the genuineness of the certificate or the stamps produced, give in lieu thereof the same amount or value in stamps of the same or any other description or, if the applicant so desires, the same amount or value in money provided that in the latter case a deduction shall be made of ten naye paise for each rupee or fraction thereof. No such deduction shall, however, be made where refund is claimed in respect of court-fee paid in pursuance of an order of the Court which has been varied or reversed in appeal.
30. Thus, Section 30 of the Act, 1870 makes it clear that no document requiring a stamp under the Act, 1870 shall be filed or acted upon in any proceeding in any Court or office until the stamp has been cancelled. It is also evident from the provisions quoted herein above that the Act, 1870 speaks of refund of court-fee and of allowance being made in the Act for damaged and spoiled stamps. These are the two eventualities, refund or allowance for damaged or spoiled stamps, mentioned therein. AS far as refund is concerned, the same is permissible in terms of Section 13 to 16 of the Act, 1870. The reference to refund in Section 30-A is also with regard to the said provision. In addition to the above there is also a provision for refund in the United Provinces Stamp Rules, 1942 (referred hereinafter to as 'the Rules, 1942') by the Collector directly.
31. In this context it is relevant to refer to the Rules, 1942. By the United Provinces Court Fees (Amendment) Act, 1938 Sub-section (1-A) has been inserted in Section 21 of the Act, 1870 thereby providing that the State Government may make rules to carry out generally the purposes of this Act, thus, the Rules of 1942 are not confined to the Clauses mentioned in Section 21 of the Central Act, but, can cover a wider area in view of this amendment.
32. The relevant provisions of the Rules, 1942 as placed before this Court, are sections 32, 36, 38-A, Chapters-VI containing Rules 224 to 229, 230 to 242 and Chapter- VIII containing Rules 252 to 261.
33. Rule 32 of the Rules, 1942 refers to two kind of stamps for indicating the payment of duty on documents under the Court Fees Act, namely, impressed stamps and adhesive stamps. Rule 36 of the Rules, 1942 provides that when two or more impressed stamps are used to make up the amount of the court-fee payable a portion of the subject matter may ordinarily be written on each sheet and the writing on each sheet shall be attested by the signature of person or persons filing the document. But where the above requirements have not been complied with, the official whose duty it is to cancel the stamps under section 30 of the Court Fees Act shall make on the first sheet of the document a note of the full court-fee having been paid and of the Values of the stamps composing the fee, and the note shall be signed by the presiding officer of the Court. This has to be read in consonance Section 30 of the Act, 1870 as already referred herein above.
34. Chapter VI of Rules, 1942 deals with 'refund or renewal.' Sub-heading B thereto deals with refund and renewal of court-fee. Rule 224, 225 and 226 make allowance for damaged and spoiled stamps by providing for their renewal and have to be read conjointly with Section 30-A of the Act, 1870 as inserted by the U.P. Act No. 19 of 1938. Rule 224 provides that if any person possessed of a damaged or spoiled impressed sheet, delivers up the same to the Collector for cancellation and applies for its renewal within six months after the stamp has become damaged or spoiled, the Collector may, if satisfied of the sufficiency of the grounds of the application, cancel and renew such stamp. Thus, this rule empowers the Collector to renew stamps on the conditions mentioned therein. This clause of renewal necessarily implies a return of the damaged or spoiled court fee. Renewal referred in Rule 224 has been defined in Rule 225 to mean 'the supply in lieu thereof of a fresh stamp or stamps of a similar kind and of equal value; or, if required, and the Collector thinks fit, stamps of any other description to the same amount in value. Rule 226 explains as to what is meant by damaged or spoiled court-fee. It reads as under:-
"226. A stamp shall be deemed to be damaged or spoiled in the cases hereinafter mentioned, namely:-
(i) When the stamp or the paper on which it is impressed or affixed has been inadvertently or undesignedly spoiled, obliterated or by any means rendered permanently unfit for use whether the said paper to be written on or not;
(ii) When by reason of some material error in the writing or copying of a stamped document it shall have become of no avail;
(iii) When the purpose intended to be effected by a stamped document has been effected by some other document duly stamped;
(iv) In cases in which the plaint for filing a suit has been written on the stamp but has not been presented to the court, the necessity for doing so having ceased to exist;
(v) When an instrument chargeable with duty under the Stamp Act, is by mistake executed on an impressed court-fee stamp and has been endorsed under section 42 of the Stamp Act."
35. Rule 227 deals with refund of court-fee by the Collector. Thus, though in the Act, 1870, there is no specific provision separately for refund by the Collector and the provisions contained therein as already discussed herein above only speak of refund by the Collector on a certificate being granted by the Court, this rule speaks of refund directly by the Collector. It reads as under:-
"227. (i) When any person is possessed of impressed court-fee stamps for which he has no immediate use, or which have been spoiled or rendered unfit or useless for the purpose intended, or
(ii) when any person is possessed of two or more (in the case of denominations below Rs. 5, four or more) court-fee adhesive labels which have never been detached from each other and for which he has no immediate use the Collector shall, on application repay to him after deducting ten naya paise in the rupee, the value of such stamps or labels in money, upon such person delivering up the same to be cancelled unless it is a document mentioned in clause (v) of the rule 226, and proving to the Collector's satisfaction that they were purchased by him with the bona fide intention to use them, that he has paid the full price thereof, and that they were so purchased, or in the case of impressed court-fee stamps, so purchased, spoiled or rendered useless, within the period of six months preceding the date on which they are so delivered or endorsed:
Provided that the Chief Controlling Revenue Authority may, in special cases, allow refunds when the application is made within one year from the date of the purchase of the stamps or labels, or also in the case of impressed court-fee stamps, within one year from the date on which the stamps were spoiled or rendered useless."
36. Thus, this provision deals with refund of court-fee stamps for which a person has no immediate use, or which have been spoiled or rendered unfit or useless for the purpose intended, or when any person is possessed of two or more (in the case of denominations below Rs. 5, four or more) court-fee adhesive labels which have never been detached from each other and for which he has no immediate use. In such a situation the refund shall be made by the Collector, on an application to repay after deducting ten naya paise in the rupee, the value of such stamps or labels in money, upon such person delivering up the same to be cancelled unless it is a document mentioned in clause (v) of the Rules 226, and on proving to the Collector's satisfaction that they were purchased by him with the bona fide intention to use them, that he has paid the full price thereof, and that they were so purchased, or in the case of impressed court-fee stamps, so purchased, spoiled or rendered useless within the period of six months preceding the date on which they are so delivered or endorsed.
37. Thus, refund under aforesaid Rule requires an exercise by the Collector and his satisfaction which is to be proved by the person concerned in terms thereof. Rule 227 speaks of 'such person delivering the stamp to be cancelled,' thus, it implies a return of the court-fee stamps, unless it is a document mentioned in Clause (v) of the Rule 226.
38. The proviso to Rule 227 empowers the Chief Controlling Revenue Authority to allow refunds in special cases, when the application is made within one year from the date of purchase of the stamps or labels or court-fee stamps from the date on which the stamps were spoiled or rendered useless. Thus, the power of refund with the Collector is only in cases where an application is submitted within six months as aforesaid, whereas, the Chief Controlling Revenue Authority has such power in cases where an application is submitted within one year as aforesaid. Rule 228 also empowers the Chief Controlling Revenue Authority in this regard to refund or replace detached as well as submission of court-fee adhesive labels.
39. Chapter VIII of the Rule, 1942 deals with cancellation of court-fee stamps. In the context of this case this chapter is relevant and has to be read in consonance with Section 30 of the Act, 1870.
40. These provisions are relevant to ascertain as to whether the court-fee offered by the opposite party No. 3-plaintiff as additional court-fee consequent to the application for amendment, albeit beyond the time provided, was liable to be returned or not and whether it could be said to have been filed or acted upon or used or not.
41. Rules 252 to 259 of Chapter VIII of the Rules, 1942 read as under:-
"252. On the presentation of any document requiring to be stamped under the Court-fees Act, or the furnishing of any such document the impressed stamps or labels shall be immediately defaced as provided by Section 30 of the Act. Cancellation may be classified into:
(a) initial punching, when a document bearing a court-fee stamp is presented before any court or office competent to receive the same;
(b) cancellation of stamps on copies, certificates or other similar documents by any court or office from which such copies, certificates, etc., are issued;
(c) cancellation by records keepers when records are consigned to their custody.
253. Every court or head of an office shall appoint, by an order in writing, an officer for the purpose of cancelling the court-fee stamps under section 30 of the Court-fees Act. That officer should, ordinarily, by the reader for the documents filed in the court and the ministerial head of the office for the documents presented before him. The officer so appointed shall personally attend to and be personally responsible for the strict fulfilment of the duty of receiving the documents filed and examining the correctness and adequacy of the stamps attached thereto and recording legibly below the stamps their aggregate value and number and immediately cancelling the stamps.
The ministerial officer, so appointed, may employ a trust-worthy subordinate subject to the approval of the court or head of the office, to do, under his immediate supervision, the mere manual work of cancelling the stamps, but it must be distinctly understood that the ministerial officer shall remain personally responsible for the due execution of the duty and or any defalcation or fraud that may occur in connation with it.
254. A rubber stamp in the following form may be used in offices where a large number of court-fee labels are presented
CANCELLED
Dated..........
The rubber stamp shall be applied across the adhesive stamps and upon the paper on either side but not in such a way as to obliterate the entries thereon or render the detection of forgeries more difficult. In offices where there is no such rubber stamp the word "cancelled" shall be written in such a manner as to be partly on the label and partly on the sheet of paper to which the label has been affixed.
255. (a) too strict a compliance with the provisions of section 30 of the Court-fees Act cannot be enjoined. Impressed court-fee sheets used for denoting court-fees need not be cancelled or punched otherwise than as required by that section. Rules 252 to 258 should be carefully observed in the case of labels-in all cases it should be carefully seen that the figure heads of the court-fee stamps are punched out, that the pieces are destroyed, and the value of stamps entered at proper places and in the register, if any, maintained for the purpose, before the documents to which stamps are attached are filed or acted upon.
(b) Every presiding officer of a court shall see that the punching is done immediately on presentation of the plaints, petition or other documents in court. Every officer should inspect the work of his subordinates from time to time so as to ensure attention to their duty and to limit opportunities for fraud. A very efficient check can be kept on any attempt to defraud the Government if each officer examines daily some of the records he handles and if also examines periodically bundles of records of cases dealt with by him, taken out at random from the shelves in which they are placed.
256. Court or offices issuing certificates or other similar documents liable to court-fee shall, before issue, cancel the labels affixed to them by punching out the figure head in such a manner as not to remove that part of the court-fee label upon which its value is expressed. As an additional precaution the signature of the official attesting the document shall be written across the label and upon the paper on either side of it.
257. When copy labels are filed in any court or office, they shall be cancelled and punched in the manner prescribed in rule 254. They shall be again punched on being consigned to the custody of the record-keeper under Rule 258.
(Government notification No. S-458/X-504-48, dated February 21, 1951, Board's file No. 478/36 serial 455).
258. When a case is decided and consigned to the record room the record-keeper shall punch a second hole in each label distinct from the first and note the date of his doing so at the same time. The second punching shall invariably be made in the middle of that part of the label on which its value is printed in eight principal Indian languages, but shall not remove so much of the stamp as to render it impossible or difficult to ascertain its value or nature.
258-A. The provisions of rule 252 to 258 both inclusive shall mutatis mutandis apply to cancellation of receipts and endorsement referred to in sub-rules (4) and (8) of rule 38-A. However, punching of the endorsements shall not be necessary and while punching the receipts care should be taken that no written portion is removed.
(Inserted vide notification No. S.R. 1424/X-252(3)-75 dt. 30.4.77 w.e.f. 30.4.77)
259. All record keepers shall be held personally responsible to see that all stamps, receipts affixed to documents and endorsements recorded on the documents under sub-rules (4) and (8) respectively of rule 38-A are preserved, duly cancelled in the file. They are bound to bring to the notice of the head of the officer i.e., Commissioner, Collector, District Judge, Assistant Collector, Civil Judge, Munsif or Tahsildar etc. as the case may be, any case in which, the above instructions, as regards either initial punching or defacement of labels on copies have been neglected."
42. At this stage it is not out of place to mention that in exercise of powers under Article 227 of the Constitution of India and Section 122 of the Code of Civil Procedure, 1908 the High Court of Judicature at Allahabad has made the General Rules (Civil), 1957 (hereinafter referred to as 'the Rules, 1957') which have come into force on the first date of January, 1958, and apply to all suits, appeals, proceedings and matters, so far as it may be, in the Civil Courts subordinate to the High Court pending, or commenced on or subsequent to that date. The relevant rules in this regard are Rules 381 to 399 of the Rules, 1957.
43. Rule 384 of the General Rules (Civil), 1957 reads as under:-
"384. Punching and cancellation of stamps.- (1) Each judicial officer, should, under Section 30 of the Court Fees Act, 1870, formally appoint an officer for the purpose of cancelling stamps. That officer, who should ordinarily be the reader for documents filed in court and the Munsarim for documents presented before him, shall personally attend to, and be personally responsible for, the strict fulfilment of the duty of receiving documents to be filed, examining the correctness and adequacy of the stamps attached thereto and immediately cancelling such stamps as are required by Section 30 of the officer appointed employing court Fees Act. There is no objection to the ministerial trustworthy subordinates to do the mere manual work of cancelling the stamps, subject to the approval of the court, but it will be on the distinct understanding that the officer will be personally responsible for the due execution of the duty and for any defalcation or fraud that may occur in connection with it.
Note.- (1) The Presiding Judge should see that punching is done immediately on presentation of the petitions and other documents in court.
(2) A rubber stamp in the following form shall also be used.
CANCELLED
Dated
It should be applied across the adhesive stamps and upon the paper on either side but not in such a way as to obliterate the entries thereon or to render the detection of forgeries more difficult.
(2) Too strict a compliance with the provisions of Section 30 of the Court-fees Act cannot be enjoined. In all cases it should be carefully seen that (the top of Ashoka Pillar) of the Court-fee stamps are punched out, that the pieces are destroyed, and the stamps registered before the documents to which the stamps are attached are filed or acted upon.
(3) Every judicial Officer should inspect and test the work of his officers from time to time so as to ensure attention to their duty and to limit opportunities for fraud. A very efficient check could be kept on any attempt to defraud Government if each Presiding Judge examines daily some of the records he handles and if he also examines periodically bundles of records of cases dealt with by him, taken out at random from the shelves in which they are placed."
44. Rule 385 of the General Rules (Civil), 1957 reads as under:-
"385. Aggregate value and number of stamps to be noted.- The official entrusted with the work of cancellation and first punching of Court-fee labels and impressed stamps shall legibly record on the document, below the stamps, the aggregate value and number of the stamps used to denote each separate fee.
When two or more impressed stamps are used the official concerned shall record the aggregate value and number of stamps on the first sheet and on the other sheets he shall make a note that it forms part of that particular document."
45. Rule 386 of the General Rules (Civil), 1957 deals with punching of labels on copies etc.
46. Rule 389 of the General Rules (Civil), 1957 deals with forgery of stamps to be reported to Government.
47. Rules 384, 385, 386 and 389 of the General Rules (Civil), 1957 are similar to Rules 252 to 259 of the Rules, 1942 made under the Act, 1870.
48. On a conjoint reading of the aforesaid provisions of law, it is borne out that on the presentation of any document required to be stamped under the Court Fees Act, or the furnishing of any such document the impressed stamps or labels shall be immediately cancelled as provided by Section 30 of the Act, 1870 by initial punching when a document bearing a court-fee stamp is presented before any court or office competent to receive the same. Such cancellations also takes place on two other occasions one of which is by the record-keepers when records are consigned to their custody, the other cancellation of stamps takes place on the copies, documents, certificates and other similar documents by the court or office from which such copies etc. are issued.
49. The short point involved herein is as to whether the court-fee stamp submitted by the opposite party No. 3-plaintiff along with the application dated 24.04.2013 for acceptance after the time for filing the same in terms of the order dated 06.11.2012 had already expired, can be termed as having been filed or acted upon for the purposes of Section 30 and other provisions of the Act, 1870 read with Rules 252 to 259 of the Rules, 1942 and Rules 384 to 386 of the General Rules (Civil), 1957 and whether they could have been returned by the Civil Court in the facts and circumstances of the case considering the provisions discussed herein above.
50. As noticed earlier, the suit in question was filed seeking a declaration and the requisite court-fee of Rs. 7,00/- was duly paid regarding which no objection was raised. The controversy arose when the amendment application of the opposite party No. 3-plaintiff was allowed vide order dated 16.11.2012 and as it entailed enhancement in the valuation of the suit with a consequent enhancement of court-fee payable, steps were ordered to be taken in this regard, but, inspite of several opportunities the additional court-fee was not deposited. This additional court-fee was offered by the opposite party No. 3-plaintiff along with an application dated 24.04.2013 with a prayer to accept it, even though, belatedly, whereupon, on 17.07.2013, this application was allowed and request of the petitioners-defendants for rejection of the plaint on account of non payment of court-fee and non compliance of order dated 16.11.2012 etc. was impliedly declined albeit without considering its merits.
51. Up to this stage an impression is conveyed that once the court-free is accepted then it falls within the term "filed or acted upon." However, as is evident from the court-fee stamps at page 37 of the writ petition there was no cancellation of these stamps as per Section 30 of the Act, 1870 read with Rules 252 to 255 of the Rules of 1942 and Rules 384, 385 of the Rules, 1957, even though, a noting had been made thereon partly in terms of Rule 36 of the Rules, 1942 (and Rule 385 of the Rules, 1957), but, as it did not bear the signature of the Presiding Officer, and as there was no punching of the stamps and cancellation as prescribed in the aforesaid provisions, therefore, stricto sensu not in terms thereof.
52. Be that as it may, the fact of the matter is that this acceptance of the court-fee vide order dated 17.07.2013 was upturned by the High Court vide its judgment dated 05.10.2013 and the matter was remanded back for a consideration afresh. As already stated earlier both the applications i.e. Application No. C-62 for accepting the court-fee and Application No. C-52 for rejecting the plaint were decided by a composite order dated 17.07.2013, which was set-aside by the High Court, therefore, for the reasons already mentioned in the earlier part of the judgment, the trial Court was required to consider afresh both the applications, as, they were intertwined. Merely because in the judgment of the High Court the trial Court was required to decide the application No. C-57, no mileage can be drawn by the petitioners, as, on a complete reading of the judgment, there is no doubt that decision on both the applications were interlinked as has already been mentioned in the earlier part of the judgment and had to be reconsidered afresh.
53. In these circumstances, once, on a reconsideration of the matter, the application No. C-57 for rejection of plaint was allowed vide order dated 20.12.2013 and the plaint was rejected on the ground of insufficiency of court-fee stamps and failure of the plaintiff to supply the requisite stamp paper within the time fixed by the Court even after being required by it to do so, the application No. C-62 for accepting the court-fee also stood rejected, therefore, in this peculiar factual scenario it cannot be said that the said court-fee had been filed or acted upon or used. This is also for the reason that when the application dated 24.04.2013 was filed with a prayer to accept the additional court-fee, which had been submitted on the same date, the court-fee which would be treated as "filed or acted upon" would be the court-fee paid on the said application dated 24.04.2013 which was duly punched and cancelled by the officer concerned and not the additional court-fee which had been offered on the said date for acceptance. The situation can be better explained by pointing out that the court-fee filed at the initial stage along with the plaint will have to be cancelled immediately as is required under Section 30 of the Act, 1870 read with Rule 252 to 259 of the Rules, 1942 and the corresponding Rule 384 to 386 of the General Rule (Civil) 1957, but, in a case such as the present one, where, after filing of the said court-fee, the plaint was subsequently amended, but, the consequential additional court-fee ordered to be paid by the court was not paid within the time stipulated, but, was offered subsequently, belatedly, which was ultimately not accepted, as, the plaint was rejected on 20.12.2013, such court-fees stamps which had been offered on the same date as submission of application dated 24.04.2013 could not have been cancelled unless the application was allowed by the Court, therefore, and as ultimately in view of the order dated 20.12.2013 the application dated 24.04.2013 stood rejected and the plaint was rejected under Order VII Rule 11 on this very ground of failure to deposit the court-fee within time, these additional court-fee stamps cannot be said to have been filed or acted upon or used and they were at best 'offered to be filed' and not 'actually filed or acted upon' so as to attract the provisions of Section 30 of the Act, 1870 and the rules referred herein above. It would be rather unjust to hold that merely by offering such court-fee stamps, which were not even accepted by the Court, the opposite party No. 3-plaintiff would be deprived of the return of such stamp, as, it is not the intention of law that a litigant should be penalized to pay the court-fee twice for the same cause of action, that too without the amended plaint being entertained.
54. In these circumstances and on a consideration of the provisions of law aforesaid, this Court is of the view that the additional court-fee offered by the opposite parties No. 3-plaintiff on 24.04.2013 was only offered for filing and acting upon, but, this offer was not accepted, and as neither any cancellation was done as per law, the same cannot be treated as having being acted upon or used, therefore, liable to be returned. The Act and the Rules do not bar return of court-fee stamps in such a peculiar situation as in the present case, which is not even envisaged in the Act, 1870 or Rules. Any other view of the matter will cause grave prejudice and injustice to the litigant. No prejudice is being caused to the petitioners.
55. In a case of return of plaint under Order VII Rule 10 invariably the plaint and the court-fee stamps on which also some part of the plaint and/or details thereof are typed and which have even been cancelled as per Section 30 of the Act, 1870 and the Rules are returned for presentation before the competent Court as it is, which on return, are accepted by the subsequent Court with a new registration number of the suit. The case at hand is an exceptional one where it was required to be returned. True, as stated by Shri Sudeep Seth, rejection of a plaint under Order VII Rule 11 is very different from return of plaint under Order VII Rule 10, especially as, the former is covered in the definition of 'Decree' contained in Section 2(2) C.P.C., but, this would be material and relevant only if return of the original court-fee stamps filed with the plaint, which is rejected, is sought, as, that would be impermissible. Here the return is of additional court-fee stamps offered consequent to amendment of the plaint which were not accepted and the plaint was rejected on the ground of non deposit of additional court-fee. Moreover, the analogy of return of plaint is being referred only to emphasise the return of court-fee stamps along with it and that such return, unless specifically barred, is not impermissible in the peculiar facts of the present case.
56. The petitioners-defendants have nothing to loose and are not prejudiced in any manner by the return of court-fee stamps. As far as the legal issue is concerned, the same has already been settled.
57. In view of the above, the part of the relief challenging the action of the learned Additional Civil Judge, Lucknow in returning the court-fee, is declined, as, the Additional Civil Judge, Lucknow did not commit any error in returning the additional court-fee to the petitioner. Not having accepted the court-fee the Court could not have retained the same and had to return it. It is nobody's case that the original court-fee stamps of Rs. 700/- had also been returned. Had it been so, it would be impermissible on rejection of the plaint.
58. As regards the other part of the relief regarding a direction to the Civil Judge (Senior Division), Malihabad, Lucknow i.e. the Court where the subsequent suit is pending, for returning the court-fee to the earlier Court for being consigned to the record room in Regular suit No. 35 of 2009 or to the State Government, is concerned, this part of the relief has been cleverly phrased, presumably, as, the petitioners were conscious of the fact that this part of the relief was based on the assumption that the court-fee could not be returned, the use of the said court fee in the subsequent suit was an issue which would fall for consideration by the subsequent Court on an objection being raised by the petitioners-defendants herein under Section 6(4) of the Court Fees Act, 1870 read with the provisions of Code of Civil Procedure, as, the objection in this regard regarding the amount of court-fee payable does not merely include the amount but also the validity of the court-fee stamps paid or filed, as, if, invalid stamps are filed, it cannot be said that proper amount of court-fee has been paid. In this regard the Court has been informed that on account of the stay order operating in this writ petition no written statement has been filed by the petitioners-defendants, as yet. As, no such objection has been raised before the Court of Civil Judge (Senior Division), Malihabad, Lucknow, as yet, by the petitioner-defendant, consequently, no decision has been taken on this issue, therefore, it would not be appropriate for this Court in exercise of jurisdiction under Article 227 of the Constitution of India to preempt the same by a decision thereon in this petition.
59. The appropriate course in such a scenario is to allow the suit proceedings to resume with liberty to the petitioners-defendants to raise an objection as to the 'sufficiency of court-fee' before the Court concerned in the subsequent suit, which shall include the validity of the returned stamps filed therein, which would be considered and decided by the Court as per law keeping in mind the observations made herein above and also as to whether the court-fee returned by the earlier Court could have been filed in the subsequent suit or some other mode as prescribed in the Court Fees Act, 1870 or the Rules made thereunder ought to have been adopted.
60. As the validity of the order dated 28.01.2014 has been decided by this Court there is no difficulty in raising the second objection as aforesaid before the court concerned.
61. The suit proceedings in Regular Suit No. 1661 of 2014 shall resume and if the petitioner-defendant raises an objection as aforesaid before the Court concerned, the same shall be decided as a preliminary issue in view of Sub-section 4 of Section 6 of the Court Fees Act, 1870, which is a special enactment and will prevail in this regard vis-à-vis the General Provisions contained in Order XIV Rule 2 C.P.C. which is a general provision. Reference may be made in this regard to the decision of this Court reported in 1985 (Alld.) Civil Journal 304 (305); Amar Nath Agarwal v. Avinash Agarwal and Another. In these circumstances, without adjudicating the merits of the issues involved as regards the aforesaid second part of the relief claimed, but upholding the return of the additional court-fee stamps, the petition is disposed of in the light of the above.
No comments:
Post a Comment