TANKADHAR NAG Vs. BISHNU NAG
HIGH COURT OF ORISSA
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JAGANNADHADAS, J. -
(1.) THIS matter comes before us on a reference by the Registrar. The only question is as to the court -fee payable by the respondents in this appeal on the memorandum to the lower appellate Court. The plaintiffs
filed a suit for declaration of title and recovery of possession and obtained a decree in the trial Court
against the defendants. The defendants appealed and succeeded in the lower appellate Court. Hence the
plaintiffs have come up with this second appeal and the defendants are the respondents herein.
(2.) THE suit property is 8.23 acres of land and the plaintiffs valued it for purposes of jurisdiction and court -fees at Rs. 70 and paid a fixed court fee of Rs. 15 on the plaint. When the defendants appealed to
the lower appellate Court, they adopted the same valuation and paid the same court -fee. The plaintiffs in
their turn, did the same when they filed the second appeal in this Court. The valuation was not questioned
in the Courts below and has been tacitly accepted. When the plaintiffs filed this second appeal on the
assumption that the value of the subject -matter was Rs. 70, the Stamp Reporter objected to the same. He
was of the opinion that the suit property which covers 8.23 acres should be worth not less than Rs. 800
and called upon the plaintiffs -appellants to pay D. C. F, on that footing both in the High Court and in the
trial Court. The matter was referred to the Registrar, who assessed the value of the property at Rs. 1,000
and called upon the plaintiffs to pay the deficits of the two Court accordingly. The plaintiff though he
originally contested the valuation, had ultimately to submit to the order of the Registrar and he paid the D.
C. F. of Rs. 226 -4 -0 on 24th November 1949 and the appeal was admitted on 14th December 1949. The
respondent on whom notices were served entered appearance on 18th January 1950. They were thereafter
called upon to pay the D.C.F., in respect of their appeal memorandum to the lower appellate Court on the
valuation of Rs. 1,000 already fixed, as against the plaintiffs -appellants. The respondents objected to the
same and hence this reference.
Before the Registrar, two objections were raised (l) that the taxing officer has no jurisdiction to examine and call for the deficit court -fee for the lower Courts; (2) that the taxing officer's jurisdiction is
restricted at the maximum to what is reported by the Stamp -Reporter to be the proper value and the
deficit. We have no hesitation in overruling both these objections.
(3.) IT is no doubt true that the taxing -officer as such, that is, the officer appointed as taxing officer Under Section 5, Court -fees Act, has nothing to do with the deficit of the court -fees paid in the Subordinate
Courts. But in this Court the Registrar is the taxing officer. We must assume that the orders passed against
the respondent and the reference to us has been made by the Registrar as such. The power of the High
Court to collect the deficit court -fee paid in respect of the plaint or the appeal memorandum in the
subordinate Courts is not open to any question. That is specifically provided for by the Court -fees Act,
Sections 12(ii) and 28. In the present case, however, the provision which is more appropriate is Section
12(ii). The power under that sub section applies to the deficit in the subordinate Courts payable not only by the appellant, but also by the respondent. This follows clearly from the wording of Section 12(ii)
which is perfectly general. Authority for the same is also to be found in Rowlins v. Lachmi Narain, A. I.
R. (5) 1918 Pat. 210 : (3 Pat. L. J. 443) and Brij Krishna Das v. Murli Rai, A. I. R. (7) 1920 pat. 656 : (4
Pat. L. J. 703), and other cases. Farther it is now well settled that in order that the power under
Sub -section (2) of Section 12, Court -fees Act, may be exercisable it is not necessary that there should be
an express decision by the lower Court regarding the court -fee. See Bidhu Bhusan v. Kala Chand, A. I. R.
(14) 1927 Cal. 775 : (106 I.C.. 335) and In re, Lakshmi Ammal, A. I. R. (13) 1926 Mad. 96 : (91 I. C.
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