S. K. MAL LODHA, J. - (1.) THIS is a joint petition in revision by the State of Rajasthan and the Urban Improvement Trust, Udaipur against the order dated August 24, 1979 of the learned District Judge, Udaipur passed in Civil Misc. Appeal No. 47 of 1977.
(2.) THE facts giving rise to this revision petition lie in a very narrow compass. Respondents Smt. Lalita Devi and Shri Shantilal, who are wife and husband respectively, owned certain land situated in the city of Udaipur. THE) acquisition proceedings were initiated for acquisition of the land by the State, After completing the acquisition proceedings, an award in the sum of Rs. 36428/- was made as compensation in favour of the respondents. Aggrieved by this award, the respondents preferred an appeal under section 54 of the Rajas-than Urban Improvement Act (No 35 of 1959) (for short 'the Act' hereafter) for enhancing the quantum of compensation awarded to them. THEy claimed Rs. 96, 625/-, That appeal was filed by the respondents on a court-fee stamp of Rs. l/ -. An objection was taken on behalf of the State that the memorandum of appeal does not bear sufficient court-fee inasmuch as the respondents should have paid court-fee on the difference of the amount awarded and the amount claimed as required by section 46 of the Rajasthan Court-Fees and Suits-Valuation Act (No. 23 of 1961) (hereinafter to be called as 'the Act of 1961' ). After appreciating the arguments advanced on behalf of the parties, the learned District Judge, by his order dated August 24, 1979 held that the decision given by the Additional Collector is appealable on a fixed court-fee stamp and that the respondents (appellants before the learned District Judge) need not pay extra court-fee. In view of this, the objection raised on behalf of the State regarding deficiency of court-fee and that the court-fee was payable under section 46 of the Act of 1961 were rejected. He ordered that the appeal may be fixed for final arguments. Aggrieved, the State of Rajasthan and the Urban Improvement Trust, Udaipur have filed this revision petition under section 115 of the Code of Civil Procedure. Mr. M. R. Singhvi, Advocate entered caveat on behalf of the respondents. When the case was taken up for admission on April 15, 1980, Mr. M. R. Singhvi, learned counsel for the respondents raised a preliminary objection regarding maintainability of the revision petition against the order of the learned District Judge, Udaipur holding that the court-fee paid on the memorandum of appeal by the respondents was adequate and that respondents are not required to pay court-fee under section 46 of the Act of 1961. On the other hand, Mr. S. L. Mardia, learned Additional Government Advocate; strenuously opposed the preliminary objection and submitted that the revision petition filed under section 115 of the Code of Civil Procedure against the impugned order is maintainable, as the learned District Judge has adjudicated that the court-fee payable on the memorandum of appeal under section 54 of the Act is not payable under section 46 of the Act of 1961. In other words, the contention of the learned Additional Government Advocate is that as the question of category of court-fee was involved in the case, the revision petition is competent. Various decisions were cited at the bar in support of their respective contentions by the learned counsel for the parties. I will examine some of them hereafter. The learned District Judge in the impugned order has held that the court-fee paid on the memorandum of appeal under section 54 of the Act was adequate, as in his view the award made by the Additional Collector was appealable on a fixed court-fee stamp. He was further of the opinion that sec. 46 of the Act of 1961 is not attracted. The crucial question, which I am called upon to determine in connection with the preliminary objection raised by the learned counsel for the respondents is whether this Court should invoke its powers of revision under section 115 of the Code of Civil Procedure when it has been held by the learned District Judge while seized of the appeal under section 54 of the Act that the court-fee paid on the memorandum of appeal is adequate and the respondents need not pay extra court-fee. I may hasten to add that an order demanding additional court-fee may be revisable under section 115 of the Code of Civil Procedure, for, in that case it may be stated that there is a refusal to exercise jurisdiction in the nutter and try the case on the merits unless the additional court-fee demanded is paid. But this is not the question in the present case and therefore, I need not express any opinion that in case an order for demand of court-fee is made invariably, a revision petition will lie against that order. Here it is pertinent to read the relevant portion of section 11 of the Act of 1961: "sec. 11. decision as to proper fee in courts: - (1 ). . . . . . . . . . . . . . . . . . . . . . . . . . . (2 ). . . . . . . . . . . . . . . . . . . . . . . (3 ). . . . . . . . . . . . . . . . . . . . . . (4) (a) Whenever a case comes up before a court of appeal, it shall be lawful for the Court, either on its own motion or on application of any of the parties, to consider the correctness of any order passed by the lower Court affecting the fee payable on the plaint or in any other proceeding in the lower Court and determine the proper fee payable thereon. Explanation : A case shall be deemed to come before a court of appeal even if the appeal relates only to a part of the subject-matter of the suit. (b) If the Court of Appeal decides that the fee paid in the lower Court is not sufficient the Court shall require the party liable to pay the deficit fee within such time as may be fixed by it. (c) If the deficit fee is not paid within time fixed and the default is in respect of a relief which has been dismissed by the lower Court and which the appellant seeks in appeal, the appeal shall be dismissed, but if the default is in respect of a relief which has been decreed by the lower Court, the deficit fee shall be recoverable as if it were an arrear of land revenue. (d) If the fee paid in the lower Court is in excess, the Court shall direct the refund of the excess to the party who is entitled to it. (5 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Explanation. . . . . . . . . . . . . . . " Section 47 of the Act of 1961 deals with appeals and it lays down that the fee payable in an appeal shall be the same as the fee that would be payable in the Court of first instance on the subject matter of the appeal. Section 46 of the Act of 1961 is reproduced in extenso as under: "s. 46. Fee on memorandum of appeal against order relating to compensation : The fee payable under this Act on a memorandum of appeal against an order relating to compensation under any Act for the time being in force for the acquisition of property for public purpose shall be computed on the difference between the amount awarded and the amount claimed by the appellant. " Before I proceed further, it will be useful to notice Nemichand vs. The Edward Mills Co. Ltd. (1) and Shri Rathnavarmaraja vs. Smt. Vimla (2), as both these decisions have been considered by the various High Courts while determining the question whether a revision lies against an order deciding the question of court-fee. In Nemichand's case (1), the question for determination was whether the order of the Judicial Commissioner demanding additional court-fee could be sustained in law, on a memorandum of appeal as provided by law. After considering Art. 1 of Sch. I, and Art. 17 of Sch. II of the Court-Fees Act, it was observed as under: "for the purpose of deciding whether the memorandum of appeal was properly stamped according to the subject matter of the appeal, it was not open to the Judicial Commissioner to canvass the question whether the suit with the second prayer eliminated from it fell within the mischief of the proviso to s. 42, Specific Relief Act. That was a question which related to the merits of the appeal and did not concern its proper institution. On this ground, therefore, the Judicial Commissioner had no jurisdiction to demand additional fee from the plaintiffs and the appeal could not be dismissed for failure to meat it. We are thus of the opinion that the order demanding additional court-fee on the memorandum of appeal as it stood, that is, minus the second prayer, was erroneous and we hold that the memorandum of appeal was properly stamped, as the subject matter of the appeal was purely of a declaratory character. " Nemichand's case (1) was not noticed in Sri Rathnavarmaraja's case (2), wherein it was held that whether proper court-fee is paid on a plaint is primarily a question between the plaintiff and the State. The jurisdiction in revision exercised by the High Court under S. 115 of the Code of Civil Procedure is strictly conditioned by cls. (a) to (c) thereof. The defendant who may believe and even honestly, that proper court-fee has not been paid by the plaintiff has still no right to move the superior courts by appeal or in revision against the order adjudging payment of court-fee payable on the plaint. One view is that a party can come up in revision, if the order is against him demanding additional court-fee. The other view is that a revision does not lie at the instance of the defendant against whom the question of court-fee is decided unless, the question of jurisdiction or the category under which court-fee is payable is involved. Reference in this connection may be made to Chintalapati Murthiraju vs. Chintalapati Subharaju (3), Mathew Mathews Kathanar vs. Kuriakose Easus Kathanar (4), Sankaran Nadar Lakshmanan Nadar vs. Varasthan Nadar Krishnan Nadar (5), Mammunhi vs. Kunhibi (6), Anandi Lal vs. Addl. Special Land Acquisition Officer, Ahmedabad (7), Prem Dulari vs. Raj Kumari (8) and N. P. Lalan vs. Lakshmidas (9 ). After considering the aforesaid two Supreme Court decisions and various decisions of the other High Courts in Prem Dulari vs. Raj Kumari (8), a learned Single Judge of the Jammu and Kashmir High Court observed as under: "from this confused state of affairs, the following principles can be safely deduced as settled: 1. A revsion does not lie at the instance of the defendant against whom the question of court-fee decided unless, the question of jurisdiction or the category under which court-fee is payable is involved. 2. A plaintiff can come up in revision if the order is against him and demands additional court-fee. In other cases when the question of court-fee is decided, a defendant cannot challenge an order of this kind by means of a revision petition. 3. The extreme view that no revision lies seems to have been given up by later pronouncements, though the latest Supreme Court authority, AIR 1961 SC-1299 (Supra) would ostensibly lend support to this proposition. 15. This being the state of law and the latest pronouncements of the Supreme Court on the subject, it is clear that the present revision petition is not maintainable. No question of jurisdiction and no question of category of court-fee is involved in this case, because in either case the court-fee payable would be on the market value of the property. " While considering Sri Rathnavarmaraja's case (2), in N. P. Lalan's case (9), it was observed as follows: "the law has. therefore, been authoritatively laid down by the Supreme Court, endorsing the principles enunciated in the earlier decisions referred to above, that a revision in a court-fee matter at the instance of the defendant is not maintainable unless the question of jurisdiction also is involved. It is therefore clear that a revision at the instance of the defendant regarding the sufficiency or not of the court-fee paid by the plaintiff cannot be made the subject-matter of revision under section 115, Civil Procedure Code. But there is an additional rider to this principle and that is, when the question of jurisdiction is involved, then, the defendant gets a right to agitate the question in revision before High Court. This has been so found by their Lordships of the Supreme Court in the decision referred to earlier. " In view of that, the learned Judge was of the opinion that it cannot be disputed in that case that the question of jurisdiction was involved and if the original order dated June 26. , 1970 stood the suit would have been beyond the pecuniary jurisdiction of the Munsiff's Court. He, therefore, held the revision to be maintainable. In the case in hand, the question of jurisdiction is not at all involved as under section 54 of the Act, an appeal against the decision of the Collector determining the amount of compensation lay to the Court of District Judge having jurisdiction irrespective of the amount of compensation.
(3.) SUB-section (4) (a) of Section 11 of the Act of 1961 provides that in appeal, a Court of appeal, either of its own motion or on the application of any of the parties shall correct any order passed by the lower court on the question of the payment of the court-fee payable on the plaint or written statement or in any other proceedings in the lower court and determining the proper fee payable thereon. Section 11 (4) (b) lays down that if the Court of Appeal decides that the fee paid in the lower Courts is not sufficient, the Court shall require the party liable to pay the deficit fee within such time as may be fixed by it. SUBsection (4) (c) of section 11 says that if the deficit fee is not paid within the time fixed and the default is in respect of a relief which has been dismissed by the lower Court and which the appellant seeks in appeal, the appeal shall be dismissed, but if the default is in respect of a relief which has been decreed by the lower Court, the deficit fee shall be recoverable as if it were an arrear of land revenue. Section 11 (4) (d) of the Act empowers the appellate court to direct the refund of the excess amount of court-fee to the party entitled thereof, if the court fee paid in the lower court is in excess. As stated above, the learned District Judge has held that the court fee paid on the memorandum of appeal by respondents No. 1 and 2 is adequate on the ground that the award was appealable on a fixed court-fee stamp. He, therefore, directed that the respondents need not pay extra court-fee. In Hari Narain vs. Williams (10), it was held that the defendant has no right of revision against the decision on adequacy of court-fee by the trial court unless it affects jurisdiction of the Court, and that he can do so only against an order passed in appeal under section 6-A or in revision under section 6-B of the Court-Fees Act. The learned Judge expressed his agreement with the view taken in Vasu vs. Chakki Mani (11), in which, it was held that even if there is an erroneous decision on the question of court-fee which does not affect jurisdiction of court to try the suit, no revision lies at the instance of the defendant. In that case, it was further held that whether the valuation of the suit is Rs. 41,800/- or rupees one lac, it will be triable by the learned Civil Judge, in whose court it is already pending. Reference may also be made to C. L. Sasra vs. Pyarey Lal Sasra (12), wherein a Division Bench of the Allahabad High Court observed as under: "to sum up, after the question of court-fee has been decided by the trial court there is no case decided which can entitle the parties to make an application in revision under section 115 C. P. C. But on feeling aggrieved, the person called upon to make good the deficiency and no other person can prefer an appeal under section 6-A of the Court-Fees Act and the Chief Inspector of Stamps can in certain circumstances detailed above move a revision under section 6-B After the appeal or revision has been decided by the higher Court that decision shall amount to a case decided and all the parties to that proceeding, namely, an appeal under section 6-A or revision under section 6-B can move an application under section 115, C. P. C. considering that name of these orders are appealable provided the court deciding the appeal or revision had exercised the jurisdiction not vested in law or had failed to exercise jurisdiction so vested or acted illegally or with material irregularity in exercise of jurisdiction. " Sri Rathanavarmaraja's case (2) was considered in Shamsher Singh vs. Rajinder Prashad (13 ). It will be useful to excerpt the following observations from Shamsher Singh's case (13) : "but the observations must be understood in the background of the facts of that case. This Court was there dealing with an application for revision filed before the High Court under section 115 of the Code of Civil Procedure and pointed out that the jurisdiction in revision exercised by the High Court is strictly conditioned by clauses (a) to (e) thereof and may be invoked on the ground of refusal to exercise jurisdiction vested in the Subordinate Court or assumption of jurisdiction which the court does not possess or on the ground that the Court has acted illegally or with material irregularity in the exercise of its jurisdiction, and the provisions of Sections 12 and 19 of the Madras Court Fees Act do not arm the defendant with a weapon of technicality to obstruct the progress of the suit by approaching the High Court in revision against an order determining the court-fee payable. The ratio of that decision was that no revision on a question of court fee lay where no question of jurisdiction was involved. This decision was correctly interpreted by the Kerala High Court in Vasu vs. Chakki Mani, AIR 1962 Ker-84 where it was pointed out that no revision will lie against the decision on the question of adequacy of court-fee at the instance of the defendant. . . . . . . . . . . unless the question of court-fee involves also the question of jurisdiction of the Court. " In that case, it was held that there was no merit in the preliminary objection, which was based on the observations made in Sri Rathanavarmaraja's case (2 ). Proviso to section 115 of the Code of Civil Procedure reads a under: "provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where : - (a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or (b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. " As stated above, the learned District Judge has held that the court-fee paid on the memorandum of appeal was sufficient. It cannot be said that if the impugned order of the learned District Judge had been made in favour of the petitioner, i. e. party applying for revision, that would have finally disposed of the appeal. Having regard to the nature of the order passed by the learned District Judge, I am further of the opinion that it cannot be said that the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the applicants. I have, therefore, reached the conclusion that the order of the learned District Judge holding that section 46 of the Act of 1961 is not attracted and that the fixed court-fee paid on the memorandum of appeal by respondents No. 1 and 2 was adequate and that they need not pay extra court-fee, is not reviseable. ;