TaxTMI 
TaxTMI 
1976 (5) TMI 104
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....al and the claim preferred by the appellants was ultimately dismissed by the Tribunal by its decree dated May 19, 1965. Additional Civil Judge of Badaun was assigned as the Tribunal under the aforesaid Act. The appellants then filed an appeal before the Allahabad High Court with a nominal court fee of Rs. 5/- but the Stamp Reporter of the High Court was of the opinion that the appellants should have paid ad valorem court fees on the total claim preferred by the appellants before the Tribunal which had been disallowed. The matter was taken up by the Taxing Officer, who, in view of the substantial importance of the point raised, made a reference to the Taxing Judge for deciding the court fee payable on the memorandum of appeal in the instant case. The plea of the appellants was that as the decision of the Tribunal did not amount to a decree as contemplated by s. 2(2) of the Code of Civil Procedure 1908, ad valorem court fees were not payable and the appellants were entitled to pay court fees as prescribed in Sch. 11 Art. 11 of the Court Fees' Act. The stand taken by the revenue was that as the present appeal was against a decree, the case of the appellants squarely fell within th....
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....hout possessing the capacity to do so. Mr. Dikshit appearing for the respondents sought to repel the arguments of Mr. Goyal on two grounds. In the first place it was submitted that under the provisions of the Court Fees Act the order of the Taxing Judge was final and could not be re-opened by this Court even in special leave. Secondly, it was submitted that the Tribunal was nothing but a Civil Court and the provisions of the Act would show that the Tribunal was clothed with all the powers and incidents of a Civil Court. In these circumstances it was contended that any decree which was passed by the Tribunal must be presumed to be a decree of the Court and was made appealable as such under s. 40 of the Act. Therefore, it was said, Sch. II Art. 11 had absolutely no application and the view taken by the Taxing Judge was legally correct. In order to understand the contentions raised by the counsel for the parties it may be necessary for us to trace the history of the Act and the circumstances in which it was passed. To begin with, following the partition of the country there was an unprecedented rush of refugees from Pakistan to India and our country immediately after becoming in....
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.... of a debtor has been defined in a rather liberal manner after allowing fairly large assets which will not be capable of attachment. Clause 13 deals with claims by displaced creditors against persons who are not displaced debtors. That is not comparatively so important because it only gives relief in respect of court fees. We felt that under the depressed economic condition of the displaced creditors, it is necessary that we must give them some relief against the huge amount of money which they have to pay as court fees etc. I submit that these are all very necessary and humane considerations which take into account the actual paying capacity of the debtor. We have maintained the existing procedure in the Courts but we have simplified it because a prolonged procedure and the complexities of the civil courts mean a lot of money. We have provided only one appeal in clause 40." A perusal of the above observations will give a clear insight into the various objects of the Act and the main purposes which the legislation sought to achieve. It will be noticed that the Minister laid particular stress on the paying capacity of the debtors which he called a humane con....
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....ow: "The Act is a taxing statute and its provisions therefore have to be construed strictly, in favour of the subject-litigant." These observations manifestly show that the Courts have to interpret the provisions of a fiscal statute strictly so as to give benefit of doubt to the litigant. The principles deducible from the decisions referred to above are well established and admit of no doubt. We, therefore, propose to decide the question raised before us in the light of the principles enunciated above, but before doing that it may be necessary to give a brief survey of the scheme and structure of the Act in order to find out the real nature, scope and ambit of the statute. To begin with, it may be necessary to extract the relevant portion of the statement of objets and reasons of the statute: "The Bill is designed mainly to give relief to displaced debtors in respect of liabilities incurred by them prior to their displacement from West Pakistan though remission of court fees has also been allowed to displaced creditors. A certain amount of relief was afforded to them by Acts XLVII of 1948 and XXV of 1949, but this was found to be in....
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....it thinks fit. It is, therefore, clear that the decree which the Tribunal passes is not a decree of the Civil Court but a decree passed by a Tribunal in a proceeding under s. 5 and section 9 of the Act. Section 10 deals with claims by the creditors against displaced debtors and s. 11 regulates the procedure of a petition filed by the creditor. Sub-section (2) of s. 11 further authorises the Tribunal to determine the claim and pass a decree in relation thereto. Section 12 provides for objection by creditor to schedule of assets and s. 13 refers to claims by displaced creditors against persons who are not displaced debtors. Section 14 prescribes the procedure for displaced creditor's petition filed under s. 13 of the Act and authorises the Tribunal to pass a decree as it thinks fit. Sub-section (3) of s. 14 authorities the Tribunal to pass a decree if no cause is shown or if no dispute exists. A perusal of sub-ss. (2) & (3) of s. 14 clearly shows that the statute contemplates a decree which may be one of rejection of the claim put forward by the displaced creditor or one which amounts to allowing the claim. Thus, in other words, whether claim is disallowed or allowed, the order p....
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....isplaced Persons (Debts Adjustment) Act is one of the statutory measures meant for relief and rehabil- tation of displaced persons. It is meant for a temporary situation brought about by unprecedented circumstances. It is possible, therefore, to urge that the provisions of such a measure are to be treated as being particularly special in their nature and that they also serve an important national purpose. It is by and large a measure for the rehabilitation of displaced debtors. x x x There is no provision therein which compels either a displaced debtor or a displaced creditor to go to the Tribunal he is satisfied with the reliefs which an ordinary civil court can give him in the normal course. It is only if he desires to avail himself of any of the special facilities which the Act gives to a displaced debtor or to a displaced creditor and makes an application in that behalf under sections 3, or 5(2), or 13, that the Tribunal's jurisdiction comes into operation. x x x It is also desirable to notice that so far as a claim of a displaced creditor against a non-displaced debtor is concerned the main facilities that seem to be available are (1) the claim can be....
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....ntary to each other should be read as one harmonious whole. We think that the contention is well founded and must prevail. The term "decree" as used in the Court Fees Act is a term of art and it must be deemed to have been used in the same sense as understood by the Code of Civil Procedure. It may be pertinent to note here that neither the Court Fees Act nor the Displaced Persons (Debts Adjustment) Act has defined the term "decree". Nevertheless" as far back as 1859, by Act No. VIII of 1859 passed by the Governor-General in Council the concept of a decree was clearly indicated, although no definition of a decree was given in that Act. By ss. 183 to 190 the manner in which the judgments were to be given and the decrees were to be prepared as also the contents of the same were clearly mentioned. Section 189 which expressly dealt with decrees ran thus: "The decree shall bear date, the day on which the judgment was passed. It shall contain the number of the suit, the names and descriptions of the parties, and particulars of the claim, as stated in the Register of the suit, and shall specify clearly the relief granted or other determination of the suit. It shall al....
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....ic evidence to show that the Legislature in enacting the Court Fees Act used the term "decree" in the same sense as it was used in s. 2(2) of the Code of Civil Procedure, 1908 or in the code obtaining before that day. This also shows that the Court Fees Act and the Code of Civil Procedure are more or less complementary to each other. This matter was the subject-matter of a decision of this Court in Mannan Lal v. Mst. Chhotaka Bibi, where this Court observed as follows: "In our view in considering the question as to the maintainability of an appeal when the court-fee paid was insufficient to start with but the deficiency is made good later on, the provisions of the Court Fees Act and the Code of Civil Procedure have to read together to form a harmonious whole and no effort should be made to give precedence to provisions in one over those of the other unless the express words of a statute clearly override those of the other. Apart from the decisions bearing on the point, there can in our opinion, be no doubt that Section 4 of the Court Fees Act is not the last word on the subject and the court must consider the provisions of both the Act and the Code to harmonis....
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....Bench decision of the Allahabad High Court in Mrs. Panzy Fernandas v. Mrs. M. F. Cusoros & others appears to have endorsed its previous view and observed as follows: "The same result would, however, follow from a perusal of the various provisions of the Code of Civil Procedure of 1859, as it stood in the year 1870. The above provision of law, therefore, indicates that under the Code of Civil Procedure, 1859, a decree could only be passed in a proceeding which could be termed a suit. Section 26 specified the particulars that are to be given in the plaint. Section 27 laid down the manner in which the plaint was to be subscribed and verified. Thus the scheme of the Code of Civil Procedure of 1859 as disclosed by the aforementioned provisions, also points to the conclusion that a decree marks the culmination of a proceeding which is described as a suit, and which, according to the said Code, is initiated by means of a plaint. Proceedings for letters of administration under the Indian Succession Act (Act XXXIX of 1925) are not commenced by the institution of a plaint. On the other hand, as section 278 of the said Act shows, they are commenced ....
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...., has clearly held that the term "decree" used in Sch. II Art. 11 of the Court Fees Act must be held to Lave the same meaning as in s. 2(2) of the Code of Civil Procedure. Thus on a consideration of the authorities mentioned above the propositions may be summarised as follows: Firstly, that under the definition of a "decree" contained in s. 2(2) of the Code of Civil Procedure, 1908, three essential conditions are necessary: (i) that the adjudication must be given in a suit; (ii) that the suit must start with a plaint and culminate in a decree; and (iii)that the adjudication must be formal and final and must be given by a civil or revenue court. In the proceedings under the Act we have already pointed out that as the Legislature has created a special tribunal to inquire into the claims displaced debtors or creditors, the Tribunal cannot be called a Court in any sense of the term because the Legislature has made a clear distinction between a Tribunal and a Court. Secondly, as the proceedings before the Tribunal start with an application and not with a plaint the other important ingredient of a decree is wholly....
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....tled principle interpretation of statute, hat where the Legislature uses an expression bearin a well-known legal contation it must be premised to have used the said expression in the sense in which it has been so understood. Craies on "Statute Law" observes as follows: "There is a well-known principle of construction, that where the legislature uses in an Act a legal term which has received judicial interpretation, it must be assumed that the term is used in the sense in which it has been judicially interpreted unless a contrary intention appears." In Barras v. Aberdeen Steam Trawling and Fishing Company Lord Buckmaster pointed out as follows: "It has long been a well-establilshed principle to be applied in the consideration of Acts of Parliament that where a word of doubtful meaning has received a clear judicial inter pretation, the subsequent statute which incorporates the same word or the samerphrase in a similar context must be construed so that the word or phrase is interpreted according the meaning that has previously been ascribed to it." Craies further points out that the rule as to world judicially interpreted applies also ....
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....with an application under s. 6 of the Displaced Persons (Debts Adjustment) Act is not merely deciding a claim made by a debtor, but is dealing with an application for adjustment of his debts. x x x x Even if the Legislature has chosen to call such an award a decree, it cannot amount to a decree within the meaning of sub- s. (2) of s. of the Code of Civil Procedure and in my judgment the award cannot be regarded as a decree within the meaning of Schedule II cl. 11, of the Court- fees Act." We find ourselves in complete agreement with the aforesaid observations made by Shah, J. In Parmanand Lokumal and other v. Khudabadi Bhaibund Cooperative Credit Bank Ltd. and Others, while construing an almost identical question, the Calcutta High Court observed as follows: "It is to afford relief to displaced persons and that purpose may well be frustrated, if, in cases of preliminary dismissals of the applications the appeals are to be filed with ad valorem court-fee on the disputed amount, even assuming that it is capable of ascertainment at the particular stage. Beaning that in mind and having regard to the scheme and structure of the Act and the nature of the impug....
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....n between a decree which is one of dismissal of the suit or a decree which amounts to an acceptance of the claim of the plaint is too artificial to merit any consideration. While, therefore, we do not agree with some of the observations of the Calcutta High Court, we fully agree with the other part of observations where the Calcutta High Court has held that ad valorem court-fees are not payable. Similarly, in Punjab National Bank Ltd. v. Firm Isardas Kaluram, a Full Bench of the Rajasthan High Court observed x x x x x x "We are therefore of opinion that the order passed in this case, though it finally determined the application of the appellant, was not a decree, because it did not a determine the claim which, in the circumstances in which that word has been used in s. 11(2) must relate to the existence or the amount of the debt due to the creditor. The creditor, therefore, if he has a right of appeal, has to pay court-fee under Sch. II. Art. 11 which mentions appeals which are not preferred from a decree or an order D. having the force of a decree. Here the order, though it finally determined the application under s. 10, was not a decree; nor did it have the force of a decre....
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.... Pakistan which suffered loss or damage and which was covered by an insurance policy entered into before 15-8-1947 and in force at the time when the loss or damage was sustained, whether this occurred before or after the 15th of August. x x x x x . My own view is that it was certainly never anybody's intention that displaced persons, whether debtors or creditors should have to pay 'ad valorem' court-fees on appeals against orders dismissing their applications, and I am inclined to share the view of Khosla, J., that an order dismissing an application, whether under s. 5 or s. 10 or 13, is merely a final order which does not necessitate the drawing up of any decree-sheet or amount to a decree and more particularly so in the case where an application has been dismissed, as in the present case, on a preliminary point without going into the merits at all." We find ourselves in complete agreement with the observation made by Falshaw, J., in the decision referred to above. Our attention was, however, drawn by the learned counsal for the respondents to three decisions of the High Court taking contrary view, namely, Kishandas v. ....
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....his Court in S. Rm. Ar. S. Sp. Satheppa Chettiar v. S. Rm. Ar. Ramanathan Chattiar and particularly on the following observations made by this Court: "In our opinion, the decision of the Division Bench of the Madras High Court that the memorandum of appeal should be taxed for the purposes of Court fee under s. 7(iv) (b) of the Act is final under the provisions of s. 5 of this Act. That is why we have not allowed the merits of this order to be questioned in the present appeal. We must, therefore, deal with the appellant's contention on the basis that the court fees on his memorandum of appeal must be levied under s. 7(iv) (b) of the Act." These observations prima facia seem to support the contention of the respondents but on a closer scrutiny of the entire decision it seems to us that this Court was not at all called upon to decide the question of the effect of s. 5 of the Court Fees Act as overriding the provision of Art. 136 of the Constitution. The observations relied upon by the respondents are prefaced by the observations of Gajendragadkar, J., who spoke for the Court, where he has clearly mentioned that the Court was not called upon to consid....