Letters Patent Appeal St. No.13589 of 2007,Letters Patent Appeal St. No.13590 of 2007,Letters Patent Appeal St. No.13592 of 2007,Letters Patent Appeal St. No.13597 of 2007

27th November, 2007

Petitioner Counsel: Shri. J. T. GILDA

Cases Cited:
Mahendra Chunilal Mehta Vs. Rajendra Chunilal Mehta, 2003(3) ALL MR 419=AIR 2003 Bombay 350 [Para 5]

JUDGMENT

JUDGMENT :- Office has raised an objection in this set of appeals that the appellants should make good deficit of Rs.225/- in the court fees paid on each of these appeals. These appeals take exception to an order passed by learned Single Judge of this Court rejecting four applications for review which arose out of orders in writ petitions passed by the learned Single Judge. These writ petitions took exception to orders passed by the Industrial Court.

2. According to the registry the appeals are taxable in terms of Article 4 of Schedule I of the Bombay Court Fees Act, which reads as under :

“4. Plaint, application or petition (including memorandum of appeal) which is capable of being treated as a suit, to set aside a decree or order having the force of a decree.”

..

The same fee as is leviable on a plaint in a suit to obtain the relief granted in the decree or order, as the case may be.

3. Since Court fees prescribed for a writ petition is Rs.250/- and since the appellant have paid court fees of only Rs.25/-, the Registry raised an objection directing the appellants to pay deficit court fees of Rs.225/- on each of these appeals.

4. Shri. Gilda, learned Advocate for the appellants submitted that these objections were unfounded and in fact the appellants were liable to be taxed under clause (c) of Article 13 of Schedule-II to the Bombay Court Fees Act, which reads as under :

“13. Memorandum of appeal when the appeal is not from a decree or an order having the force of a decree and is presented.”		a) to any Civil Court other thanthan the High Court, or to any Revenue Court or Executive Officer other than the High Court or Chief controlling Revenue or Executive Authority;		[Five rupees.]
		b) to the Chief Controlling Executive or Revenue Authority;		[Ten rupees]
		c) to the High Court.		[Twenty-five rupees]

5. The learned Advocate also placed reliance on judgment of a learned Single Judge of this Court in Mahendra Chunilal Mehta Vs. Rajendra Chunilal Mehta, reported at AIR 2003 Bombay 350 : [2003(3) ALL MR 419]. In that case the learned Single Judge was disposing of a chamber summons which raised an objection to the decision of the Taxing Officer on the original side of the High Court. The Taxing Officer held the applicants liable to pay ad valorem court fees on an appeal under Clause 15 of the Letters Patent, against an order of a Single Judge taking on record consent terms in the suit filed on original side. While deciding chamber summons against the order of the Taxing Officer the learned Single Judge held that the applicants were liable to pay court fees in terms of Article 13 of Schedule II of the Bombay Court Fees Act. In paragraph 6 of the judgment, he observed as under :

"6. Having considered the rival submissions, I have no manner of doubt that the applicants have merely challenged that part of the order passed by the learned single Judge on 4.3.2002 whereby the learned single Judge has taken on record the consent terms on behalf of the plaintiff and defendants Nos.4 and 5 whereas the later part of that order proceeds to decree the suit in terms of the consent terms against defendants Nos.4 and 5 without prejudice to the rights of the other defendants, to my mind, such an appeal would be available to the applicants in terms of Clause 15 of the Letters Patent Appeal. In that case, the applicants are justified in contending that they would be liable to pay court-fees as provided under Article 13 of Schedule II of the Bombay Court-fees Act, 1959. The learned counsel for the applicants has rightly placed reliance on the decision of the Division Bench of this Court reported in SLVI (1944)46 Bom LR 424 : (AIR 1944 Bombay 239(2)) in the case of Umashankar Naranji Pandia Vs. Shivshankar Prabhashankar Bhatt. In this decision it has been held that the Appeal against order recording compromise is available. No doubt this decision proceeds on the basis of legal position as is obtained then by virtue of provisions contained in Order XLIII, Rule 1(m). However, deletion of clause (m) of Rule 1 of Order XLIII, CPC would make no difference to the legal position that the order taking on record consent terms filed by the parties could be challenged if permissible in law. Clause 15 of the Letters Patent Appeal in no way would preclude the applicants from filing appeal having been filed by the applicant under that provision would therefore be available. A priori the applicants would be liable to pay court-fees in terms of Article 13 of Schedule II of the Bombay Court-fees Act, 1959."

It may be seen that while dealing chamber summons the learned Single Judge of this Court was alive to distinction between an order which could not be executed as a decree or did not have force of decree, an order which was a decree or had the force of a decree. The order in question was divided by the learned single Judge in two parts : the first part whereby consent terms were taken on record and the second part which proceeded to decree the suit in terms of consent terms passed by the Court. The learned Single Judge had held that filing on record consent terms could be challenged, if permissible, (impliedly independently of an appeal against the decree which could be passed on the basis of such consent terms). Therefore, the decision on which the learned Advocate relies is of no help to him in saving court fees in the present set of appeals.

6. The key difference in the expression used in Article 4 of Schedule-I and Article 13 of Schedule-II is whether the order concerned is capable of being treated as decree or an order having a force of decree. If the order impugned in the appeal is either a decree or has force of decree Article 4 of Schedule I would apply and if it is not decree or does not have force of decree Article 13 of Schedule II would apply. In these cases the order impugned is in fact one which has a force of decree since it is capable of being executed.

7. Learned Advocate for the appellants next submitted that since the appeals arise out of orders passed in review applications even if Article 4 of Schedule-I were to be applied the court fees payable would not be Rs.250/- as is payable in the case of writ petition, but only the court fees which is payable upon an application for review i.e. 1/2 of the court fees for the proceedings in view of the provisions of Article 9 of Schedule-I.

8. We are not impressed by this argument. Such a course would be open to a party challenging an order upon a review which alters the order under review. What is effectively challenged in the present cases is the original order since the appellant's application for review has been rejected by the learned single Judge.

9. In view of this, we direct the appellants to remove the deficiencies pointed out by the Registry within four weeks, failing which the appeals shall be dismissed without reference to the Court.

10. The learned Advocate for the appellant pointed out that the Registry of this Court is taxing all Letters Patent Appeals under Article 4 of Schedule-I because of some administrative instructions received in the form of a booklet by the registry. We have perused such booklet which indeed shows that the Letters Patent Appeals are shown to attract Article 4 of Schedule-I and therefore, the court fees payable is prescribed to be the same as paid in the proceedings appealed against.

11. The Registrar (Judicial) shall cause necessary amendment to be carried in the booklet so that the ministerial staff does not harbour any misunderstanding about the articles applicable. In case, the appeal is directed against a decree or order having force of decree Article 4 of Schedule-I would apply, but in all other cases Article 13(c) of Schedule-II would apply.

12. It may be recorded that the learned Advocate zealously resisted the compliance to the objections raised by the registry, not only in order to save his client, Government of Maharashtra, from the liability to pay additional court fees, but also to draw our attention to the administrative directions followed by the registry, which is needed rectification.

Order accordingly.