ORDER
(1) These revision petitions raise an interesting question. The City Civil Court, Madras, returned two plaints for presentation to the proper court under Order 7, Rule 10 of the Code of Civil Procedure. The plaints were re-presented to the Court of the Subordinate Judge at Kurnool, within the State of Andhra, subsequent to its formation. The question is whether the plaintiff is entitled to credit for the court-fee levied in the City Civil Court,Madras?
(2) As the question is bare of authority so far as this Court is concerned and is of far reaching importance to the revenues of the State, notice was given to the learned Advocate General and I have had the benefit of his argument.
(3) For a proper appreciation of the point arising for determination, it is necessary to refer to the legislative history of the law relating to the levy and collection of court-fees. Nearly ninety years ago, the Central Legislature enacted the Court Fees Act (VII of 1870), which extended to the whole of British India as it was then constituted. The Central Act provided for a uniform levy of court-fees in all the provinces of British india. It was amended in its application to the various provinces by their Legislature undertaking suitable amendments to the Central Act. With a view to meet the increased cost of administration by providing additional revenue, the principal Act was amended in its application to the Presidency of Madras by the Madras Court Fees (Amendment) Act, 1922.
(4) On September 14,1953, Parliament enacted the Andhra State Act (XXX of 1953) whereby a seperate State, called the State of Andhra was constituted incorporating therein certain territories which had previous thereto formed part of the State of Madras, and this Act came into force on October 1, 1953. Under Section 53 of the Andhra State Act, the laws in force in the territories comprised in the State of Andhra prior to its constitution are to continue to be in force even thereafter. S.54 invested the appropriate Government with the power to adapt the laws in force in the composite State of Madras.
(5) Section 28 of the Andhra State Act provided that 'as from the 1st day of January 1956, or such earlier date as may be appointed under sub-section (2), there shall be a seperate High Court for the State of Andhra.' Pursuant to this power, the President notified 5-7-1954 as the date for the inauguration of the High Court of Andhra. Till that date, however, the jurisdiction of the High Court of Madras extended over the territories of the new State, such jurisdiction as it had immediately before the 1st October, 1953.
(6) It does not appear that there was any arrangements at that juncture between the Governments of Madras and the newly formed State of Andhra with regard to the allocation of revenues realised by the sale of court-fee stamps. Even subsequent to the constitution of the State of Andhra, the Court Fees Act, 1870, as amended by the Madras Act, continued to be in force. In the sister State of Madras, it was subsequently replaced by a new State Act, viz., the Madras Suits valuation and Court Fees Act, 1955.
(6a) The next event requires mention is that the Andhra Legislature undertook comprehensive legislation on the subject of court-fees and the valuation of suits, and this resulted in the enactment of the Andhra Court Fees and Suits valuation Act (vII of 1956) which received the assent of the President on March 16, 1956.
(7) The year 1956 witnessed the enactment by the Central Parliament of the States Reorganisation Act, which provides for the formation of new States and alteration of areas and boundaries and names of existing States. By virtue of S. 3 of this Act, roughly the territories comprised in nine of the Districts of the former State of Hyderabad were added to the State of Andhra and as from 1-11-1956, the State of Andhra was renamed the State of Andhra Pradesh.
(8) To complete the legislative history, it may be noted that the Andhra Court Fees and Suits valuation Act was extended to the territories added to the State of Andhra by S. 3 of the States Reorganization Act. This was achieved by the Andhra Court Fees and Suits valuation (Amendment) Act (Iv of 1958). The result of this is that the Andhra Court Fees and Suits valuation Act, 1956, has been made applicable to all the territories forming part of the State of Andhra Pradesh.
(9) Now, reverting to the problem arising for decision in the present cases, it is necessary to mention the relevant facts. The respondent who is the sole proprietor of a firm, known as 'E. Murugesa Mudaliar and Son,' instituted in December 1955 two suits, O. S. Nos. 52 and 127 of 1956, in the City Civil Court, Madras, against a public limited company, 'The Thungabhadra Industries, Limited, Kurnool' for recovery of Rs. 16,987-13-0 and Rs. 5,618 respectively. The defendant company raised before the City Civil Court, Madras, an objection that the court had no jurisdiction to entertain the suits. By an order dated October 30,1957, the City Civil Court upheld the objection and directed the return of the plaints for presentation to the proper court. The plaints were actually returned on November 29, 1957, and were represented in the court of the Principal Subordinate Judge, Kurnool, on December 7, 1957, where they were renumbered as O. S. Nos. 1 and 2 of 1958. In the former suit a deficit court-fee of Rs. 75-12-0 was collected by the Court after giving credit to the court-fee already paid on the plaint that an excess court-fee of Rs. 66-12-0 had been paid.
(10) Here it may be mentioned that by the date of the re-presentation of the plaints in the Sub-Court, Kurnool, the Andhra Court Fees and Suits valuation Act, 1956, had become law. The defendant-company contented that credit should not have been given to the plaintiff firm for the court-fees paid on the plaints as orginally filed in the City Civil Court, Madras, and that they ought to pay fresh court-fees on the plaints. This contention was rested on the ground that the plaints were originally filed in a Court situated in a different State; that under entry No. 3 in the State List of the Seventh Schedule to the Constitution of India, court-fee collected on plaints have to be credited exclusively to the consolidated fund of the State in which the courts are situated; and that in the present cases, since the court-fees that had been paid on the plaints presented in the City Civil Court, Madras, had gone to the consolidated fund of the Madras State, credit should not have been given to the same by the court, in the State of Andhra.
The learned Judge held that there was no express provision in the Andhra Court-fees stamps purchased in the State of Andhra alone should be used, and since under O. 7, R. 10, C. P. C. a plaint, when returned could be presented to the proper court, that court was bound to give credit to the court-fee already paid on the plaint and that, therefore, the objection raised by the defendant should be negatived. Against this finding, the defendant company has filed these revision cases.
(11) The learned Advocate-General has contended and in this contention he has been supported by the learned counsel for the petitioner that court-fee was a provincial subject under the Government of Indian Act, 1935, and is now incorporated in the State list under the Constitution of India that the court-fees collected in the courts situated within the territories of a State; that if court-fee stamps sold in other States are allowed to be used in this State, the result would be that this State would be deprived of the revenues derived from the sale of those court-fee stamps; and that therefore credit should not have been given to the court-fee stamps orginally affixed on the plaints in the City Civil Court Madras. So, stated, the argument is naturally appealing. But, an argument based upon the consequence to the revenues of the State should not be a deciding factor for the solution of the problem one way or the other. In my view, the question must be decided with reference to the law relating to the payment of court-fees and not by any extraneous considerations.
(12) Order 7, R. 10, C. P. C. contains a mandatory direction that, if the court finds that it had no jurisdicion to try a particular suit,the plaint shall be returned for being presented to the proper court. The prevalent practice is that the plaintiff should be allowed to pay the deficit court-fee, if any, in the court which has jurisdiction to hear the case and he should be given credit to the court-fees which have previously been paid. This well established practic has accepted by the Madras High Court in visweswara Sarma v. Dr. T. M. Nair,(ILR 35 Mad 567 (FB), where it has been held that:
'Where a court after receiving a plaint and cancelling the stamp affixed there to returns the plaint for presentation to the proper court under O. 7. R. 10 of the Civil Procedure Code of 1908 the latter court to which the plaint is re-presented is bound to give credit to the fee already levied by the former court.'
This Full Bench decision was rendered nearly five decades ago, i.e., in 1912, and has ruled the law ever since. Therefore, where a plaint is returned for presentation to the proper court, it does not lose its force by reason of the fact that the court-fee stamp affixed thereto was cancelled by the court of re-presentation is bound to give credit for the court-fee already paid. So much is conceded.
(13) The question, however, is, does it make any difference that the court which returns the plaint for presentation to the proper court and the court of re-presentation are situated in different States.
(14) The Andhra State Act or the States Re-organization Act has, neither of them, any provision for solving this difficulty. The stress of the argument before me was laid on the facts that the subject of court-fees was included in the provincial list under the Government of India Act, 1935, and in the State List under the Constitution of India. It is, no doubt, true that under the Government of India Act, 1935, the administration of justice, constitution and organization of all courts except the Federal Court, and fees taken therein were includued in item No. 1 of the Provincial Legislative list. So too, administration of justice, constitution and organization of all courts except the Supreme Court and the High Court, officers and servants of the High Court, procedure in rent and revenue courts and fees taken in all courts except the Supreme Court, are found incorporated in Entry No. 3 of List II, i.e., the State List, in the Seventh Schedule to the Constitution. It may, therefore, be readily conceded that court-fees collected in all courts, including the State High Court, go into the State Exchequer.
(15) As already mentioned, the Court-fees Act, 1870 (Central Act vII of 1870), as amended by the Madras Court-fees (Amendment) Act, was the law in force in the territories comprised in the State of Andhra until the 1st May, 1956, the date of coming into force of the Andhra Court-fees and Suits valution Act, 1956. By virtue of S. 79 of the Andhra Act, the court-fees Act, 1870, and the Suits valuation Act, 1887, in their application to the State of Andhra stood repealed. But all suits and proceedings instituted before the commencement of the Act and all proceedings by way of appeal or revision, whether instituted before or after such commencement, notwithstanding the repeal of the Central Courut-fees Act, 1870, as amended by the Madras Court-fees (Amendment) Act and the rules made there under contained no provision for allocation or adjustment in respect of the revenue derived by the sale of court-fee stamps purchased within the territories of one State, but used in the courts situated in another State.
(15a) It is however,argued by the learned Advocate-General that whatever might have been the position before the coming into force of the Andhra Act, it is thereafter imperative that all court-fees prescribed by that Act, whether impressed or adhesive or partly impressed and partly adhesive, should be collected in stamps purchased in the territories of the State of Andhra.
(15b) Now, S. 4 of the Andhra Act, which provides for the levy of fee in courts and public offices reads:
'No document which is chargeable with fee under this Act shall-
(i) be filed, exhibition or recorded in, or be acted on or furnished by, any court including the High Court, or
(ii) be filed, exhibited or recorded in any Public Officer or to be acted on or furnished by any public officer, except on payment of the fee chargeable in respect of such document under this Act.' It is necessary at this juncture to read the other material provisions.
'Section 69 : All fees chargeable under this Act shall be collected in stamps.'
Section 70 : 'The stamps used to denote any fee chargeable under this Act shall be impressed on adhesive or partly impressed and partly adhesive, as the State Government may, by notification in the Andhra Government may, by notification in the Andhra Gazette, from time to time direct.'
(16) Section 76 empowers the Board of Revenue, with the previous sanction of the State Government, to make rules to provide for or regulate, among other matters, the supply of stamps to be used under the Act. Section 77 empowers the Government, by notification in the Andhra Gazette, to make rules to carry out generally the purposes of the Act.
(17) It may be noted that S. 69, which provides for the collection of fees chargeable under the Act in stamps, does not contain the further requirement that those stamps should be purchased within the territories of the State. It is also conceded that no rules have been made by the Board of Revenue or the State Government pursuant to the powers conferred on them by S. 76 and S. 77 respectively.
(18) It is relevant to note that under the Indian Stamp Act there is Madras amendment and an Andhra Pradesh amendment, both of them dated the 30th December, 1957. The State of Madras, by an amendment notified in G. O. Ms. 1365, Revenue, dated 30th December, 1957, promulgated a rule which reads:
' Stamps purchased in Madras State shall alone be used on instrument chargeable with duty as in force in that State.'
(19) The Andhra Pradesh Government have with a slight verbal alteration notified in G. O. Ms. No. 2434 Revenue, dated 30th December 1957, as follows:
'Stamps purchased in Andhra Pradesh State alone shall be used on instruments chargeable with duty as in force in that State'.
There is, therefore, no difficulty in concluding that with regard to the use of stamps, the Madras Government as well as the Andhra Pradesh Government have felt a need to notify to the Public that stamps purchased in the respective States alone shall be used on instrument chargeable with duty under the Stamp Act. It is to be observed that a similar notification was not issued under the provisions of the Court-fees Act in force before the enactment of the Andhra Act or even subsequently thereunder. It is not within my province to speculate upon the reasons for the omission to issue a similar notification as the one issued under the Stamp Act by the Government of Andhra Pradesh. The fact that no notification has been issued is, however common ground. Thelearned Advocate-General conceded that was the position. The learned counsel appearing for the parties have stated that, in spite of a diligent search, they were not able to find any such notification.
By way of abundant caution, I have tried to ascertain the practice prevailing in the Apppeal Examiners' section of the Office of the High Court. I have been informed that ever since the formation of the High Court of Andhra, on July 5, 1954, till today, the office has not been objecting to the use of court-fee stamps purchased in States other than the State of Andhra or Andhra Pradesh. It is explained that as there is no notification made by the Government under the provisions of the former Court-fees Act or the present Act requiring the use of court-fees stamps purchased within the territories of the State, they have been allowing the use of stamps purchased within the territories of other States as well. The consequences of allowing court-fee stamps purchased in other States to be used in Courts of this State may adversly affect the Revenues of this State; but I fail to see how, in the absence of a notification prohibiting the use of such stamps, the litigants should be penalised by their being made to pay court-fee twice over.
(19a) It is , no doubt, true that Mr.Justice Mody of the Bombay High Court in M/s. Brindalal v. M/s. G. and H. Ltd., AIR 1960 Bom 96, held that court-fee stamps, purchased in another State would not be accepted in the State of Bombay. As against this view, the High Court of East Punjab and the Court of the Judicial Commissioner of Himachal Pradesh of have taken the view that such a procedure, which would result in insisting upon a party being made a pay twice over, would not be countenanced.
In Bhura Mal Dhan Dayal v. Imperial Flour Mills Ltd., , Dua, J. of the Punjab High Court has held that under the scheme of Court-fees Act, a litigant is, normally speaking, not made liable to pay court-fee twice over for the same adjudication by the same court or by its sucessor court or on account of the mistakes of courts. In that case the suit was originally instituted in the Civil Court in Delhi but it was held that the Delhi Court had no jurisdiction, with the result that the plaint was returned for being presented to the proper court. The plaintiff thereupon re-presented the plaint to the court at Ambala. The court-fee stamp affixed on the plaint orginally instituted naturally bore the words 'Delhi State', having been purchased at Delhi. The trial court thought that administration of justice, except where it related to the Supreme Court and the High Court, was a State subject and therefore the court-fee stamps purchased in Delhi could not be used in the Court in the State of Pubjab. In this view the plaintiff was ordered to make up the deficiency in court-fee. The learned Judge held that the court at Ambala was bound to give credit for the fee already paid.
(20) A similar view was taken by Ramabhadran, Judicial Commissioner, in Hira v. B. D. Kashyap, . There the facts were similar to the facts of the present case. The plaint was originally instituted in the Small Cause Court at Simla (Punjab), with court-fee stamps pertaining to the Punjab Government. It was subsequently returned for presentation to a court in Himachal Pradesh. It was then presented to the Court of the Subordinate Judge of Theog and decreed by him in due couurse. It was contended that the latter court could not proceed with the suit because the plaint bore Punjab Stamps and not Himachal Pradesh stamps. It was held that credit should begiven to the plaintiff for the court-fee paid in the Simla Court.
(21) There was some discussion before me as to whether the Stamp Act, could be made by the Government of this State under the Andhra Court-fees and Suits valuation Act. It may be noted in passing that Ss. 76 and 77 of the Andhra Act correspond to Ss. 25 and 26 of the Stamp Act. But whether the revenues of the State should be safeguarded by means of a suitable provisions in the Act or whether an appropriate rule should be made under its provisions, is a matter with regard to which I am not now called upon to express an opinion. It may be observed that courts do not pretend to find cures for the difficulties of ordinary litigants or the Government.
(22) Having given the matter my best consideration, I find myself unable to agree with the view taken in the Bombay decision, and I am in agreement with the view taken in the decisions of the Court of Judicial Commissioner of Himachal Pradesh and the High Court of East Punjab.
(23) For all the above reasons, the order of the lower court must be affirmed and these revision petitions are therefore dismissed. As the question involved in these cases is of some difficult and as there is no binding authority on the question, I do not think that this is a fit casefor the award of costs.
(24) Petition dismissed.