The Court Fees Act

November 30, 2014

INTRODUCTION

With the establishment of courts a system was evolved for the payment of fees for adjudication of the cases. The rates of stamp fees livable in courts and offices established beyond the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Fort William, Madras and Bombay, and in proceedings on the appellate side of High Court, were fixed by Act XXVI of 1867 which were, to the great extent, tentative. Within a span of about two years the experience gained of their working seems to be conclusive as to their repressive effect on the general litigation of the country. It was thought necessary to make a general reduction in the rates on the institution of civil suits, and to revert tot he principle of maximum fee which obtained under the former law. It was proposed to reduce the valuation for the computation of the livable on suits relating to land under temporary settlement or land exempt from the payment of revenue to the Government. In order to rectify the repressive effect and in future there may be no confusion between stamp-revenue proper and the revenue derived from what have heretofore been termed judicial stamps, a comprehensive Bill was introduced.

STATEMENT OF OBJECTS AND REASONS

“The rates of stamp fees livable in Courts and offices established beyond the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Fort William, Madras and Bombay and in proceedings on the appellate side of such High Courts, were as fixed by Act XXVI of 1867, to a great extent tentative.

The experience gained of their working during the two years in which they have been in force, seems to be conclusive as to their repressive effect on the general litigation of the country. It is, therefore, thought expedient to make a general reduction in the rates now chargeable on the institution of civil suits, and to revert to the principle of maximum fee which obtained under the former law.

It is proposed also to reduce the valuation fixed by the existing law for the computation of the fee livable on suits relating to land under temporary settlement or land exempt from the payment of revenue to the Government which is believed to be at least relatively excessive as compared with the valuation of permanently settled land; and to provide for the valuation of suits relating to mere parcels of land which, though forming part of estates under settlement, bear no specific allotment of any portion of the assessment of Government revenue on such estates, at the estimated selling price of such land, as was the rule in those cases under Act X of 1862.

The want of some fixed valuation applicable to certain classes on suits, as for example, suits instituted between landlord and tenant to recover a right of occupancy or enforce adjustment, or suits for maintenance or for an annuity the subject-matter of which though not absolutely indeterminable, is certainly not susceptible of ready determination, has given rise to much uncertainty and variety in the procedure adopted by the several Courts in such cases; and the amendment of the existing law in this respect is felt to be urgently called for.

In deference to the strong objections entertained by the local authorities in certain Provinces to the retention of the retention of the fee imposed on the presentation of certain petitions in the Criminal Courts, it is proposed to reduce the amount of such fee from one rupee to eight annas.

The uniform exaction of a fee of eight annas in the case of all petitions addressed to a Revenue Officer or a Magistrate, works harshly in its application to such communications when presented by persons having dealings or transactions with the Government in relation to such transactions. Equitable considerations require that petitions of this kind should be excepted from the operation of the general rule, and the Bill makes suitable provision for such cases.

The ad valorem fee now chargeable on summary suits instituted under Act XVI of 1838 and the Bombay Act (5 of 1864), is represented as working unsatisfactorily, and the substitution of a fixed rate is recommended.

It is to be observed that an award in such cases is liable to be set aside by a judgment passed in regard to the same matter in a regular suit; hence it appears more equitable to treat these summary suits as miscellaneous applications and to subject them to a similar fixed institution fee.

As the Bill provides for a considerable reduction of the fees heretofore chargeable on civil suits of small amount, it seems unnecessary to maintain the present distinction between the Courts of Cantonment Joint Magistrates and other Civil Courts in respect of the amount of fee livable on the institution of such suits.

It is proposed also to exempt suits instituted in a Military Court of Requests from the payment of any fee. The constitution of such Courts is peculiar; they form no part of the regular machinery employed in the general administration of justice, the present measure therefore is inapplicable to them. Moreover, the suitor in such Courts is placed at this disadvantage as compared with suitors in the ordinary Civil Courts that, although he may gain his case, he is unable to recover the costs which he has incurred in prosecuting his claim; hence the incidence of the taxation imposed by the levy of an institution fee in such cases is inequitable.

Suits for the restitution of wives, which are of common occurrence in Punjab are held to be some what excessively taxed under the present law, which prescribes that in suits the money value of the subject-matter of which cannot be estimated, fixed fee of Rs.10 shall be levied; the Bill substitutes for that rate in such cases, a special fee of Rs.5.

The clause in Act XXVI of 1867, exempting Advocates of a High Court from the obligation of presenting to any Court a written authority empowering them to Act in any case pending in such Court is excluded from the Bill. Such a provision appears to be beyond the scope of an enactment for regulating the levy of Court-fees. It is, moreover, open to the objection that it conflicts with section 18 of the Civil Procedure Code and consequently creates some doubt as to the intention of the Legislature.

As some measures of compensation for the loss of revenue which is expected to result from the general reduction of fees, it is proposed to discontinue the refund of any portion of the amount, levied on the first institution of suits, and also to raise the fees heretofore chargeable on probates and letters of administration granted under the Indian Succession Act, and on certificates issued under Act XXVII of 1860, to the ad valorem rates livable under the English law in like cases.

The abolition of refunds is justified by the consideration that for all practical purposes in the majority of cases, the plaintiff, whose suit has not gone beyond the stage at which under the present law he is entitled to recover a moiety of the institution fee, has gained as much through the Court’s agency as the suitor whose case has proceeded to a decision, and that, therefore, on the principle on which all Court-fees are adjusted, the former should contribute in equal proportion with the latter to the maintenance of the Courts from whose action both derive an equal benefit.

In lieu of the existing rates of process-fees, which vary according to the distance of the Court by which the processes are issued from the place where they are to be served or executed, it is proposed to levy, by means of stamps, a uniform rate in all cases. All suitors will thus be required to contribute in equal proportion to the maintenance of the establishment employed in the serving of processes, without reference to the length of time occupied in each service and the consequent amount of work rendered on behalf of each person at whose instance any process is served or executed.

Such a provision is in accordance with the modern system under which the charges in the Postal and Electric and Telegraph Departments are regulated, and is also more equitable to the general community.

The incorporation of the High Court-Fees Act (XV of 1868) with and the transfer of so much of the provisions of the Parsi Marriage and Divorce Act, 1865, the Native Converts’ Marriage Dissolution Act, 1866, the Punjab Tenancy Act, 1868, the the Indian Divorce Act and the Indian Income-tax Act, as relate to the levy of stamp fees in judicial proceedings, to the present Bill appear to be conducive to public convenience, as the whole of the existing law relating to fees livable in all courts of justice will thus be contained in one enactment.

With the same object this Bill purports to effect a complete re-arrangement of the provisions of the existing law on this subject, a similar classification of instruments chargeable with Court-fees to that which obtains in the General Stamp Act having been adopted, and the rules for determining the value of the subject-matter of certain suits being transferred from the Schedule where they are to be found in Act XXVI of 1867 to the body of the proposed Act.

Lastly, that for the future there may be no confusion between stamp-revenue proper and the revenue derived from what have heretofore been termed judicial stamps the proceeds of the proposed enactment are to be designated Court-fees, and the Bill is entitled accordingly.”

ACT 7 OF 1870

The Bill was passed and it got its assent on 11th March, 1870 and became an Act under short title and numbers THE COURT FEES’ ACT, 1870 (7 OF 1870). It came into force on 1st April, 1870

LIST OF AMENDING ACTS AND ADAPTATION ORDERS

Act 14 of 1870.

Chapter I – Preliminary

Section 1. Short title.

This Act may be called the Court Fees’ Act, 1870.

Extent of Act. – It extends to the whole of India except [(Note: Subs. by the Adaptation of Laws (No.2) Order, 1956, for “Part B States”) the territories which, immediately before the 1st November, 1956, were comprised in Part B States].

Commencement of Act. – And it shall come into force on the first day of April, 1870.

Section 1A. (Note: Ins. by the A.O. 1937) Definition of ‘Appropriate Government”.

In this Act “the Appropriate Government” means, in relation to fees or stamps relating to documents presented or to be presented before any officer serving under the Central Government, that Government, and in relation to any other fees or stamps, the State Government.]

COMMENTS

The enactment of the Act is intended to provided revenue to the State. It has been held that this is a fiscal statute and like identical legislations its provisions and connotations must be construed in its strict sense. Chief Inspector of Stamps, U.P. vs Mahant Lakshmi Narain – Air 1970 All 488.

Section 2. [“Chief Controlling Revenue-authority” defined.]

Rep. by the A.O. 1937.

Chapter II – Fees in the High Court and in the Courts of small causes at the Presidency-Towns

Section 3. Levy of fees in High Courts on their original sides.

The fees payable for the time being to the clerks and officers (other than the sheriffs and attorneys) of [(Note: Subs. by the A.O. 1950, for “the Courts which are High Courts for the purposes of the Government of India Ct,1935″) the [(Note: Subs by the Adaptation of Laws (No.2) Order, 1956, for “High Court for Part A States”) High Courts other than those of Kerala. Mysore and Rajasthan].

Or chargeable in each of such Courts under No.11 of the First, and Nos. 7,12,14, (Note: The number “16”, rep. by Act 12 of 1891, s.2 and Sch.1) 20 & 21 of the Second Schedule to this act annexed;

Levy of Fees in Presidency Small Cause Courts. – and the fees the time being chargeable in the Courts of Small Causes at Levy of the Presidency-towns, (Note: See the Presidency Small Cause Courts Act, 1882 (15 of 1882) and their several offices;

Shall be collected in manner hereinafter appearing.

Section 4. Fees on documents filed, etc., in High Courts in their extraordinary jurisdiction;

No document of any of the kinds specified in the First or Second Schedule to this Act annexed, as chargeable with fees, shall be filed, exhibited or recorded in, or shall be received or furnished by, any of the said High Courts in any case coming before such Courts in the exercise of its extraordinary original civil jurisdiction ; or in the exercise of its extraordinary original criminal jurisdiction ;

In their appellate jurisdiction ; – or in the exercise of its jurisdiction as regards appeals from the [(Note: Subs. by Act 19 of 1922, s.2, for “Judgment of two”) judgement (other than judgements passed in the exercise of the ordinary original civil jurisdiction of the Court) of one] or more Judges of the said Court, or of a division Court ;

Or in the exercise of its jurisdiction as regards appeals from the Courts subject to its superintendence ;

As Courts of reference and revision. – or in the exercise of its jurisdiction as a Court of reference or revision’

Unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said Schedules as the proper fee for such document.

COMMENTS

It has been held that a final decree for future mesne profits passed under Order XX Rule 12(2) CPC is like an award and does not amount to a decree under section 2(2) of The Code of Civil Procedure 1908 and is not a decree as stipulated under Schedule II of the Act. Diwan Brothers vs Central Bank of India – 1976 (2) ALR (SC) Summary.

Section 5. Procedure in case of difference as to necessity or amount of fee.

When any difference arises between the officer whose duty it is to see that any fee is paid under this Chapter and any suitor or attorney, as to the necessity of paying a fee or the amount thereof, the question shall, when the difference arises in any of said High Courts, be referred to the taxing-officer, whose decision thereon shall be final, except when the question is, in his opinion, one of general importance, in which case he shall refer it to the final decision of the Chief Justice of such High Court, or of such Judge of the High Court as the Chief Justice shall appoint either generally or specially in this behalf.

When any such difference arises in any of the said Courts of Small Causes, the question shall be referred to the Clerk of the Court, whose decision thereon shall be final, shall refer it to the final decision of the first Judge of such Court.

COMMENTS

It has been held that under section 5 the order or judgement of the Taxing Judge is final and not appeal is maintainable against such an order or judgement. S.Rm. Ar. S.Sp. Sathappa Chettiar vs S.Rm. Ar. Rm. Ramanathan Chettiar AIR 1958 SC 245.

Chapter III – Fees in other courts and in public offices

Section 6. Fees on documents filed, etc., in Mofussil Courts or in public Offices.

Except in the Courts hereinbefore mentioned, no document of any of the kinds specified as chargeable in the First or Second Schedule to this Act annexed shall be filed, exhibited or recorded in any Court of Justice, or shall be received or furnished by any public officer, unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said Schedules as the proper fee for such document.

COMMENTS

It has been held that while exercising the inherent powers the Court should apply Section 6 as court fee has to be paid on the documents received by the court, For this purpose the court may afford an opportunity to the party to pay such court fee. Netramani Dibya vs Dasarthi Misra – AIR 1986 Orissa 235.

Section 7. Computation of fees payable in certain suits

The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows :-

For money:- In suits for money (including suits for damages or compensation, or arrears of maintenance, of annuities, or of other sums payable periodically) – according to the amount claimed ;

For maintenance and annuities:- In suits for maintenance and annuities or other sums payable periodically – according to the value of the subject-matter of the suit, and such value shall be deemed to be ten times the amount claimed to be payable for one year.

For other moveable property having a market-value:- In suits for moveable property other than money, where the subject-matter of the suit, and such value shall be deemed to be ten times the amount claimed to be payable for one year ;

In suits –

For moveable property of no market-value:- for moveable property where the subject-matter has no market-value, as, for instance, in the case of documents relating to title,

To enforce a right to share in joint family property:- to enforce the right to share in any property on the ground that it is joint family property,

For a declaratory decree and consequential relief:- to obtain a declaratory decree or order, where consequential relief is prayed,

For an injunction:- to obtain an injunction.

For easements:- for a right to some benefit (not herein otherwise provided for) to arise out of land, and

For accounts:- for accounts – according to the amount at which the relief sought is valued in the plaint or memorandum of appeal.

In all such suits the plaintiff shall state the amount at which he values the relief sought (Note: The words “and the provision of the Code of Civil Procedure, section thirty-one, shall apply as if, for the word claim,” ‘the words relief sought’ were substituted” rep. by Act 12 of 1891, s.2 and Sch.I)

For possession of land, houses and gardens ; – In suits for the possession of land, houses and gardens – according to the value of the subject – matter ; and such value shall be deemed to be -

Where the subject-matter is land, and

Where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government, or forms part of such an estate and is recorded in the Collector’s register as separately assessed with such revenue ; and such revenue is permanently settled – ten times the revenue so payable ;

Where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government, or forms part of such estate and is recorded as aforesaid ; and such revenue is settled, but not permanently –

five times the revenue so payable ;

Where the land pays no such revenue, or has been partially exempted from such payment, or is charged with any fixed payment in lieu of such revenue, and net profits have arisen from the land during the year next before the date of presenting the plaint – fifteen times such net profits ; but where no such net profits have arisen therefrom – the amount at which the Court shall estimate the land with reference to the value of similar land in the neighbourhood;

Where the land forms part of an estate paying revenue to Government, but is not a definite share of such estate and is not separately assessed as above-mentioned – the market-value of the land: proviso as to Bombay Presidency: – Provided that, in the territories subject to the (Note: See paragraph 8 of the A.O. 1937. In view of this provision the expression “Governor of Bombay in Council” has been left unmodified) Governor of Bombay in Council, the value of the land shall be deemed to be—

Where the land is held on settlement for a period not exceeding thirty years and pays the full assessment to Government—a sum equal to five times the survey-assessment ;

Where the land is held on a permanent settlement, or on a settlement for any period exceeding thirty years, and pays the full assessment to Government—a sum equal to ten times the survey assessment ; and

Where the whole or any part of the annual survey-assessment is remitted—sum computed under paragraph (1) or paragraph (2) of this proviso, as the case may be, in addition to ten times the assessment, or the portion of assessment, so remitted.

Explanation. – The word “estate”, as used in this paragraph, means any land subject to the payment of revenue, for which the proprietor or a farmer or ryot shall have executed a separate engagement to Government, or which, in the absence of such engagement, shall have been separately assessed with revenue ;

for houses and gardens:- where the subject-matter is a house or garden-according to the market-value of the house or garden;

To enforce a right of pre-emption:- In suits to enforce a right of pre-emption-according to the value [computed in accordance with paragraph (v) of this section] of the land, house or garden in respect of which the right is claimed ;

For interest of assignee of land-revenue ; In suits for the interest of an assignee of land-revenue fifteen times his net profits as such for the year next before the date of presenting the plaint ;

To set aside an attachment ; In suits to set aside an attachment of land or of an interest in land or revenue-according to the amount for which the land or interest was attached :

Provided that, where such amount exceeds the value of the land or interest, the amount of fee shall be computed as if the suit were for the possession of such land or interest ;

(ix) To redeem; In suits against a mortgage for the recovery of the property mortgaged, to foreclose ; and in suits by a mortgage to foreclose the mortgage, or, where the mortgage is made by conditional sale, to have the sale declared absolute – according to the principal money expressed to be secured by the instrument of mortgage ;

(x) for specific performance ; – In suits for specific performance — Of a contract of sale-according to the amount of the consideration;

Of a contract of mortgage—according to the amount agreed to be secured;

Of a contract of lease-according to the aggregate amount of the fine or premium (if any) and of the rent agreed to be paid during the first year of the term;

Of an award—according to the amount or value of the property in dispute ;

(xi) between landlord and tenant.—In the following suits between landlord and tenant ;-

For the delivery by a tenant of the counterpart of lease,

To enhance the rent of a tenant having a right of occupancy,

For the delivery by a landlord of a lease,

(Note: Ins. by Act 6 of 1905, s.2(1)) For the recovery of immovable property from a tenant, including a tenant holding over after the determination of a tenancy]

To contest a notice of ejectment.

To recover the occupancy of [(Note: Subs. by s.2(2), ibid, for “land”) immovable property] from which a tenant has been illegally ejected by d the landlord, and

For abatement of rent — According to the amount of the rent of the [immovable property] to which the suit refers, payable for the year next before the date of presenting the plaint.

COMMENTS

In general the court fee has to be decided on the basis of the subject matter of the suit and the appeal arising therefrom. It shall not be substantially affected by the claim as set out in the relief by the plaintiff. In Re. Thriupathiammal AIR 1956 Mad 179.

It has been held that the question of court fee must be decided having regard to the averments made in the plaint itself and the contentions raised in the written statement or the final decision on merits cannot affect the same. Sathappa Chettiar vs Ramanathan Chettiar.

It has been held that when the plaintiff paid advalorem court fee in a suit for recovery of a specific calculated amount as damages on account of leakage of cooking gas cylinder leading to accident the valuation was correct. Bhagwant Sarup vs Himalary Gas Co. – AIR 1985 HP 41

It has been held that in a suit for partition the share claimed by the plaintiff would determine the court fee and not he property as a whole. Rakesh Chandra Das vs Khan Bahadur Abdul Majid Choudhary AIR 1982 Gauhati 82.

It has been held that valuation as set up the plaintiff in the plaint of the suit is conclusive and final. Kesho Mahton vs Ayodhya Mahton – AIR 1983 PAT 67.

It has been held that section 7 (iv) (f) is applicable to a suit for dissolution of partnership at will and rendition of accounts in as much as it is a suit for accounts and value for jurisdiction and court fee is the same advalorem court fee to be paid under Section 7. Madan Mohan Sharma vs Uttam Singh Bagga – AIR 1985 J &K 87.

The Code of Civil Procedure empowers the court to make up deficiency of court fees and under Order VII Rule 11 it is provided that the plaint shall be rejected where the relief claimed is undervalued, and the plaintiff on being required by the court to correct the valuation within a time to be fixed by the court fails to do so. It has bee held in such cases where the valuation made by the plaintiff in respect of the suit property is unreasonable and arbitrary the court can exercise its powers vested in it under Order VII Rule 11 CPC, Mana Das vs Kisto Das – AIR 1983 Patna 272.

The Delhi High Court has held that if plaintiff files a suit for declarations and injunctions and the reliefs claimed therein are wholly independent of each other then the suit is not governed by Section 7(iv) (c). S.C. Malik vs Surender Nath Puri – 1991 Rajdhani Law Reporter (NOTE) 85.

It has been held that the words “Subject Matter” used in the Section include relief or reliefs. Managing Director. Hafiz vs Mustt Noorjahan – AIR 1989 GAU 13.

It has been held that in a single suit for recovery filed by a Bank against the defendant borrower pertaining to separate accounts in its different branches court fee has to be paid on each of the accounts separately. Bank of India vs Vinod Kumar Bhalla – AIR 1988 Delhi 79.

It has been held that Paragraph (iv) of Section 7 of the Court Fees Act gives a right to the plaintiff in any of the suits mentioned in the clauses of that paragraph to place any valuation that he likes on the reliefs he seeks, subject, however to any rules made under Section 9 of the Suit Valuation Act and the court has no power to interfere with the plaintiff’s valuation. Shiela Devi vs Kishan Lal Katra – ILR (1974) 2 Delhi (FB) 491 Commercial Aviation & Travel Co. vs Vinal Pannalal – AIR 1988 SC 1636.

Section 8. Fee on memorandum of appeal against order relating to compensation.

The amount of 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 (Note: See now the Land Acquisition Act,1894 (1 of 1894)) acquisition of land for public purposes, shall be computed according to the difference between the amount awarded and the amount claimed by the appellant.

COMMENTS

It has been held that the amount of court fee payable on a memorandum of appeal against an order relating to compensation for the acquisition of land for public purposes is to be computed only on difference between amount of compensation awarded and the amount claimed and not on the amount of valuation. Abun Naser vs Special Tehsildar, L.A. – AIR 1986 Madras 229.

Section 9. Power to ascertain nett profits of market-value

If the Court sees reason to think that the annual nett profits or the market-value of any such land, house or garden as is mentioned in section 7, paragraphs (v) and (vi) have or has been wrongly estimated, the Court may, for the purpose of computing the fee payable in any suit therein mentioned, issue a commission as may be necessary, and to report thereon to the Court.

Section 10. Procedure where nett profits or market-value wrongly estimated.

(I) If in the result of any such investigation the Court finds that the nett profits or market-value have or has been wrongly estimated, the Court, if the estimation has been excessive, may in its discretion refund the excess paid as such fee : but, if the estimation has been insufficient, the Court shall require the plaintiff to pay so much additional fee as would have been payable had the said market-value or nett profits been rightly estimated.

(II) In such case the suit shall be stayed until the additional fee is paid. If the additional fee is not paid within such time as the Court shall fix, the suit shall be dismissed.

(Note: Cl. (iii) rep. by Act 12 of 1891, s.2 and Sch. I.)

Section 11. Procedure in suits for mesne profits or account when amount decreed exceeds amount claimed.

In suits for mesna profits or for immovable property and mesne profits, or for an account, if the profits or amount decreed are or is in excess of the profits claimed or the amount at which the plaintiff valued the relief sought, the decree shall not be executed until the difference between the fee actually paid and the fee which would have been payable had the suit comprised the whole of the profits or amount so decreed shall have been paid to the proper officer.

Where the amount of mesne profits is left to be ascertained in the course of the execution of the decree, if the profits so ascertained exceed the profits claimed, the further execution of the decree shall be stayed until the difference between the fee actually paid and the fee which would have been payable had the suit comprised the whole of the profits so ascertained is paid. If the additional fee is not paid within such time as the Court shall fix, the suit shall be dismissed.

COMMENTS

It has been held that a separate application to raise objection with regard to under valuation of deficiency in court fee is not required and such objection can be contemplated from the written statement. Panna Lal vs Mohan Lal – AIR 1985 Raj 178.

It has been held that if the amount of mesne profits to be awarded after ascertaining the same exceed the pecuniary jurisdiction of the court the suit must be transferred to a court of competent jurisdiction. Siya Saran Singh vs Jamuna Devi – AIR 1987 PAT I.

It has been held that objection in respect to pecuniary jurisdiction must be raised at the earliest opportunity. Sml. Baba Dai vs Muneshwar Jha – AIR 1985 PAT 67.

It has been held that there is no provision either in the Code of Civil Procedure 1908 or in the Court Fees Act 1870 for decreeing any amount of compensation paid or received while the suit is pending adjudication or for the payment of court fees after decree has been passed. Usha Sales Ltd. vs Smt. Aruna Gupta – AIR 1988 (NOC) 74 Delhi.

Section 12. Decision of questions as to valuation

(I) Every question relating to valuation for the purpose of determining the amount of any fee chargeable under this Chapter on a plaint or memorandum of appeal, shall be decided by the Court in which such plaint or memorandum, as the case may be, is filed, and such decision shall be final as between the parties to the suit.

But whenever any such suit comes before a Court of appeal, reference or revision, if such Court considers that the said question has been wrongly decided, to the detriment of the revenue, it shall require the party by whom such fee has been paid to pay so much additional fee as would have been payable had the question been rightly decided, and the provisions of section 10, (ii), shall apply.

COMMENTS

It has held in a suit for partition where plaintiff was in possession that valuation for jurisdiction is the market value of plaintiff’s share and the same is applicable in its appeal therefrom as well. Pamban Kayakkal Vatsalam vs Pamban Kayakkal Kanmudi – AIR 1982 KER 304.

It has been that the order for remanding the case on the ground of non-payment of requisite court fee is illegal where no such objection was raised before the trail court. Pargat Singh vs U.O.I – AIR 1981 Delhi 328.

It has been that even if the plaint is deficiently stamped the appellate court could not reverse the trail court’s judgement on this acore alone. It is improper to decline granting of relief if requisite court fee was not fixed thereupon. Harbhajan Singh vs Prakash Kaur – AIR 1984 (NOC) 1 ALL.

Section 13. Refund of fee paid on memorandum of appeal.

If an appeal or plaint, which has been rejected by the lower Court on any of the grounds mentioned in the (Note: See now the Code of Civil Procedure, 1908 (Act 5 of 1908)) Code of Civil Procedure, is ordered to be received, or if a suit is remanded in appeal on any of the grounds mentioned in section 351 of the same Code, for a second decision by the lower Court, the Appellate Court shall grant to the appellant a certificate, authorizing him to receive back from the Collector the full amount of fee paid on the memorandum of appeal :

Provided that, if, in the case of a remand in appeal, the order of remand shall not cover the whole of the subject-matter of the suit, the certificate so granted shall not authorize the appellant to receive back more than so much fee as would have been originally payable on the part or parts of such subject-matter in respect whereof the suit has been remanded.

COMMENTS

It has been held that refund of court of fee could be ordered even where a case is remanded under the amended provisions of order XLI Rule 23 CPC. State of U.P. vs Chandra Bhushan Misra – AIR 1980 SC 591. It has been held that where a suit is transferred to the High Court under Cl. 13 of Letters Patent Court fee cannot be refunded. The official Receiver. Coimbatore vs Sar Gounder – AIR 1980 MAD 269.

Section 14. Refund of fee on application for review of judgement.

Where an application for a review of judgement is presented on or after the ninetieth day from the date of the decree, the Court unless the delay was caused by the applicant’s laches, may, in its discretion, grant him a certificate authorizing him to receive back from the Collector so much of the fee paid on the application as exceeds the fee which would have been payable had it been presented before such day.

Section 15. Refund where Court reverses or modifies its former decision on ground of mistake.

Where an application for a review of judgement is admitted, and where, on the rehearing, the Court reverses or modifies its former decision on the ground of mistake in law or fact, the applicant shall be entitled to a certificate from the Court authorizing him to receive back from the Collector so much of the fee paid on the [(Note: Subs. by Act 20 of 1870, s.1, for “plaint or memorandum of appeal”.) application] as exceeds the fee payable on any other application to such Court under the Second Schedule to this Act, No.1, clause (b) or clause (d).

But nothing in the former part of this section shall entitle the applicant to such certificate where the reversal or modification is due, wholly or in part, to fresh evidence which might have been produced at the original hearing.

Section 16. [Additional fee where respondent takes objection to unappealed part of decree.]

Rep. By the Code of Civil Procedure, 1908 (Act 5 of 1908). S.156 and Sch. V.

Section 17. Multifarious suits.

Where a suit embraces two or more distinct subjects, the plaint or memorandum of appeal shall be chargeable with the aggregate amount of the fees to which the plaints or memoranda of appeal in suits embracing separately each of such subjects would be liable under this Act.

Nothing in the former part of this section shall be deemed to affect the power conferred by the (Note: See now the Code of Civil Procedure, 1908 (Act 5 of 1908) Code of Civil Procedure, section 9.

Section 18. Written examinations of complainants.

When the first or only examination of a person who complaints of the offence of wrongful confinement, or of wrongful restraint, or of any offence other than an offence for which police-officers may arrest without a warrant, and who has not already presented a petition on which fee has been levied under this Act, is reduced to writing under the provisions of the (Note: See now the Code of Criminal Procedure, 1973 (Act 2 of 1974) Code of Criminal Procedure, the complainant, shall pay a fee of eight annas, unless the Court thinks fit to remit such payment.

Section 19. Exemption of certain documents.

Nothing contained in the Act shall render the following documents chargeable with any fee :-

Power-of-attorney to institute or defend a suit when executed [(Note: Subs. by the A.O. 1950, for “by an officer, warrant-officer, non-commissioned officer or private of Her Majesty’s Army”) by a member of any of the Armed Forces of the Union] not in civil employment.

Note: Cl. (ii) rep. by Act 12 of 1891, s.2 and Sch. I). Written statements called for by the Court after the first hearing of a suit.

(Note: Cl. (iv) rep. by Act 13 of 1889, s.2 and Sch.)

Plaints in suits tried by (Note: See the Madras Village Courts Act,1889 (Madras Act 1 of 1889)) Village Munsiffs in the Presidency of Fort St. George.

Plaints and processes in suits before District Panchayats in the same Presidency.

Plaints in suits before Collectors under Madras Regulation XII of 1816.

Probate of a will, letters of administration, [(Note: Subs. by Act 7 of 1889, s.13(2), for “and certificate mentioned in the First Schedule of this Act annexed, No.12″) and, save as regards debts and securities, a certificate under Bombay Regulation VIII of 1827], where the amount or value of the property in respect of which the probate or letters or certificate shall be granted does not exceed one thousand rupees.

Application or petition to a Collector or other officer making a settlement of land-revenue, or to a Board of Revenue, or a Commissioner of Revenue, relating to matters connected with the assessment of land, or the ascertainment of rights thereto or interests therein, if presented previous to the final confirmation of such settlement.

Application relating to a supply for irrigation of water belonging to Government.

Application for leave to extend cultivation, or to relinquish land, when presented to an officer of land-revenue by a person holding, under direct engagement with Government, land of which the revenue is settled but not permanently.

Application for service of notice of relinquishment of land or of enhancement of rent.

Written authority to an agent to distrain.

First application (other than a petition containing a criminal charge or information) for the summons of a witness or other person to attend either to give evidence or to produce a document, or in respect of the production or filing of an exhibit not being an affidavit made for the immediate purpose of being produced in Court.

Bail-bonds in criminal cases, recognizance’s to prosecute or give evidence, and recognizance’s for personal appearance or otherwise.

Petition, application, charge or information respecting any offence, when presented, made or laid to or before a police-officer, or to or before the Heads of Villages or the Village Police in the territories respectively subject to the Governors in Council of Madras and Bombay.

Petition by a prisoner, or other person in duress or under restraint of any Court or its officers.

Complaint of a public servant (as defined in the Indian Penal Code), a municipal officer, or an officer or servant of a Railway Company.

Application for permission to cut timber in Government forests, or otherwise relating to such forests.

Application for the payment of money due by Government to the applicant.

Petition of appeal against the chaukidari assessment under (Note: The Bengal Chaukidari Act, 1856) Act No.20 of 1856, or against any municipal tax.

Applications for compensation under any law for the time being in force relating to the acquisition of property for public purposes.

Applications for compensation under any law for the time being in force relating to the acquisition of property for public purposes.

Petitions presented to the Special Commissioner appointed under (Note: The Chota Nagpur Tenures Act, 1869) Bengal Act No.2 of 1869 (to ascertain, regulate and record certain tenures in Chota Nagpur).

[(Note: Subs. by Act 15 of 1872, s.2, for the original clause.) Petitions under the Indian Christian Marriage Act, 1872, sections 45 and 48.]

Chapter III A – Probates, letters of administration and certificates of administration

Section 19A. Relief where too high a court-fee has been paid.

Where any person on applying for the probate of a will or letters of administration has estimated the property of the deceased to be of greater value than the same has afterwards proved to be, and has consequently paid too high a court-fee thereon, if within six months after the true value of the property has been ascertained, such person produces the probate or letters to the Chief Controlling Revenue Authority [(Note: Subs. by Act 10 of 1901, s.3(1), for “of the Province”) for the local area] in which the probate or letters has or have been granted,

And delivers to such Authority a particular inventory and valuation of the property of the deceased, verified by affidavit or affirmation.

And if such Authority is satisfied that a greater fee was paid on the probate or letters than the law required,

The said Authority may –

(a) Cancel the stamp on the probate or letters, if such stamp has not been already cancelled :

(b) Substitute another stamp for denoting the court-fee which should have been paid thereon; and

Make an allowance for the difference between them as in the case of spoiled stamps, or repay the same in money, at his discretion.

Section 19B. Relief where debts due from a deceased person have been paid out of his estate.

Whenever it is proved to the satisfaction of such Authority that an executor or administrator has paid debts due from the deceased to such an amount as, being deducted out of the amount or value of the estate, reduces the same to a sum which, if it had been the whole gross amount or value of the estate, would have occasioned a less court-fee to be paid on the probate or letters of administration granted in respect of such estate than has been actually paid thereon under this Act,

Such Authority may return the difference, provided the same be claimed within three years after the date of such probate or letters.

But when, by reason of any legal proceeding, the debts due from the deceased have not been ascertained and paid, or his effects have not been recovered and made available, and in consequence thereof the executor or administrator is prevented from claiming the return of such difference within the said term of three years, the said Authority may allow such further time for making the claim as may appear to be reasonable under the circumstances.

Section 19C. Relief in case of several grants.

Whenever (Note: The word “such” rep. by Act 12 of 1891, s.2 and Sch.I) a grant of probate or letters of administration has been or is made in respect of the whole of the property belonging to an estate, and the full fee chargeable under this Act has been or is paid thereon, no fee shall be chargeable under the same Act when a like grant is made in respect of the whole or any part of the same property belonging to the same estate.

Whenever such a grant has been or is made in respect of any property forming part of an estate, the amount of fees then actually paid under this Act shall be deducted when a like grant is made in respect of property belonging to the same estate, identical with or including the property to which the former grant relates.

Section 19D. Probates declared valid as to trust-property though not covered by court-fee.

The probate of the will, or the letters of administration of the effects, of any person deceased heretofore or hereafter granted shall be deemed valid and available by his executors or administrators for recovering, transferring or assigning any moveable or immovable property whereof or whereto the deceased was possessed or entitled, either wholly or partially as a trustee, notwithstanding the amount or value of such property is not included in the amount or value of the estate in respect of which a court-fee was paid on such probate or letters of administration.

Section 19E. Provision for case where too low a court-fee has been paid on probates, etc.

Where any person on applying for probate or letters of administration has estimated the estate of the deceased to be of less value than the same has afterwards proved to be, and has in consequence paid too low a court-fee thereon, the Chief Controlling Revenue-authority [(Note: Subs. by Act 10 of 1901, S.3(1), for “of the Province”) for the local area] in which the probate or letters has or have been granted, may, on the value of the estate of the deceased being verified by affidavit or affirmation, cause the probate or letters of administration to be duly stamped on payment of the full court-fee which ought to have been originally paid thereon in respect of such value and of the further penalty, if the probate or letters is or are produced within one year from the date of the grant, of five times, or if it or they is or are produced after one year from such date, of twenty times, such proper court-fee, without deduction of the court-fee originally paid on such probate or letters :

Provided that, if the application be made within six months after the ascertainment of the true value of the estate and the discovery that too low a court-fee was at first paid on the probate or letters, and if the said Authority is satisfied that such fee was paid in consequence of a mistake or of its not being known at the time that some particular part of the estate belonged to the deceased, and without any intention of fraud or to delay the payment of the proper court-fee, the said Authority may remit the said penalty, and cause the probate or letters to be duly stamped on payment only of the sum wanting to make up the fee which should have been at first paid thereon.

Section 19F. Administrator to give proper security before letters stamped under section 19E.

In case of letters of administration on which too low a court-fee has been paid at first, the said Authority shall not cause the same to be duly stamped in manner aforesaid until the administrator has given such security to the Court by which the letters of administration have been granted as ought by law to have been given on the granting thereof in case the full value of the estate of the deceased had been than ascertained.

Section 19G. Executors, etc., not paying full court-fee on probates, etc., within six months after discovery of under-payment.

Where too low a court-fee has been paid on any probate or letters of administration in consequence of any mistake, or of its not being known at the time that some particular part of the estate belonged to the deceased, if any executor or administrator acting under such probate or letters does not, within six months (Note: The words and figures “after the first day of April, 1875, or” omitted by Act 12of 1891, s.2 and Sch.I) after the discovery of the mistake or of any effects not known at the time to have belonged to the deceased, apply to the said Authority and pay what is wanting to make up the court-fee which ought to have been paid at first on such probate or letters, he shall forfeit the sum of one thousand rupees and also a further sum at the rate of ten rupees per cent, on the amount of the sum wanting to make up the proper court-fee.]

Section 19H. Notice of applications for probate or letters of administration to be given to Revenue-authorities; and procedure thereon.

(1) Where an application for probate or letters of administration is made to any Court other than a High Court, the Court shall cause notice of the application to be given to the Collector.

(2) Where such an application as aforesaid is made to a High Court, the High Court shall cause notice of the application to be given to the Chief Controlling Revenue-authority [(Note: Subs. by Act 10 of 1901, s.3(2), for “of the Province”) for the local area in which the High Court is situated].

(3) The Collector within the local limits of whose revenue-jurisdiction the property of the deceased or any part thereof is, may at any time inspect or cause to be inspected, and take or cause to be taken copies of, the record of any case in which application for probate or letters of administration has been made ; and if, on such inspection or otherwise, he is of opinion that the petitioner has under estimated the value of the property of the deceased, the Collector may, if he thinks fit, require the attendance of the petitioner (either in person or by agent) and take evidence and inquire into the matter in such manner as he may think fit, and, if he is still of opinion that the value of the property has been under-estimated, may require the petitioner to amend the valuation.

(4) If the petitioner does not amend the valuation to the satisfaction of the Collector, the Collector may move the Court before which the application for probate or letters of administration was made, to hold an inquiry into the true value of the property :

Provided that no such motion shall be made after the expiration of six months from the date of the exhibition of the inventory required by section 277 of the (Note: See now the Indian Succession Act, 1925 (39 of 1925) Indian Succession Act, 1865, or, s the case may be, by section 98 of the Probate and Administration Act, 1881.

(5) The Court, when so moved as aforesaid, shall hold, or cause to be held, an inquiry accordingly, and shall record a finding as to the true value, as near as may be, at which the property of the deceased should have been estimated. The Collector shall be deemed to be a party to the inquiry.

(6) For the purposes of any such inquiry, the Court or person authorized by the Court to hold the inquiry may examine the petitioner for probate or letters of administration on oath (whether in person or by commission), and may take such further evidence as may be produced to prove the true value of the property. The person authorized as aforesaid to hold the inquiry shall return to the Court the evidence taken by him and report the result of the inquiry, and such report and the evidence taken by him and report the result of the inquiry, and such report and the evidence so taken shall be evidence in the proceeding, and the Court may record a finding in accordance with the report, unless it is satisfied that it is erroneous.

(7) The finding of the Court recorded under sub-section (5) shall be final, but shall not bar the entertainment and disposal by the Chief Controlling Revenue-authority of any application under section 19E.

(8) The State Government may make rules for the guidance of Collectors in the exercise of the powers conferred by sub-section (3).

COMMENTS

It has been that for valuation of property in respect of an application for letters of administration the court cannot decide the same without carrying out an inquiry. Lakshmi Prasak vs Badri Ram – AIR 1985 PAT 119.

It has been held that it is incumbent upon the Collector to afford an opportunity by giving notice to the petitioner and hearing him for probate. Only after such hearing the Collector can make the valuation of property in question. Trambak Lal Dayalal Kothari vs L.K. Dey – AIR 1982 CAL 217.

Section 19-I. Payment of court-fees in respect of probates and letters of administration.

(1) No order entitling the petitioner to the grant of probate or letters of administration shall be made upon an application for such grant until the petitioner has filed in the Court a valuation of the property in the form set forth in the Third Schedule, and the Court is satisfied that the fee mentioned in No.11 of the First Schedule has been paid on such valuation.

(2) The grant of probate or letters of administration shall not be delayed by reason of any motion made by the Collector under section 19H, sub-section (4).

COMMENT

It has been held that all the assets have to be incorporated in the Schedule as stipulated in this section no matter the petitioner claims against one of the items more fully set out in the Will. Smt. Kamala Rajamanikkam vs Smt. Sushila Thakur Dass – AIR 1983 ALL 90.

Section 19J. Recovery of penalties, etc.

(1) Any excess fee found to be payable on an inquiry held under section 19H, sub-section (6), and any penalty or forfeiture under section 19G may, on the certificate of the Chief Controlling Revenue-authority, be recovered from the executor or administrator as if it were an arrear of land-revenue by any Collector (Note: The words “in any part of British India” omitted by the A.O. 1948).

(2) The Chief Controlling Revenue-authority may remit the whole or any part of any such penalty or forfeiture as aforesaid, or any part of any penalty under section 19E or of any court-fee which ought to have been paid.

Section 19K. Sections 6 and 28 not to apply to probates or letters of administration

Nothing in section 6 or section 28 shall apply to probates or letters of administration.]

Chapter IV – Process Fees

Section 20. Rules as to costs of processes

The High Court shall, as soon as may be, make rules as to the following matters:-

The fees chargeable for serving and executing processes issued by such Court in its appellate jurisdiction and by the other Civil and Revenue Courts established within the local limits of such jurisdiction;

The fees chargeable for serving and executing processes issued by the Criminal Courts established within such limits in the case of offences other than offences for which police-officers any arrest without a warrant: and

The remuneration of the peons and all other persons employed by leave of a Court in the service or execution of processes.

The High Court may from time to time alter and add to the rules so made.

Confirmation and publication of rules – All such rules, alterations and additions shall, after being confirmed by the State Government (Note: The words “and sanctioned by the governor General of India in Council” omitted by Act 38 of 1920, s.2 and Sch.I) be published in the Official Gazette, and shall there-upon have the force of law.

Until such rules shall be so made and published, the fees now leviable for serving and executing processes shall continue to be levied, and shall be deemed to be fees leivable under this Act.

Section 21. Tables for process fees.

A table in the English and Vernacular languages, showing the fees chargeable for such service and execution, shall be exposed to view in a conspicuous part of each Court.

Section 22. Number of peons in District and subordinate Courts

Subject to rules to be made by the High Court and approved by the State Government (Note: The words “and the Governor General of India in Council” omitted by s.2 and Sch.I. ibid) every District Judge and every Magistrate of a District shall fix, and may from time to time alter, the number of peons necessary to be employed for the service and execution of processes issued out of his Court and each of the courts subordinate thereto.

Number of peons in Mofussil Small Cause Courts – and for the purpose of this section, very Court of Small Causes established under (Note: See now the Provincial Small Cause Courts Act, 1887 (9 of 1887) Act No.11 of 1865 (to consolidate and amend the law relating to Courts of Small Causes beyond the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature) shall be deemed to be subordinate to the Court of the District Judge.

Section 23. Number of peons in Revenue Courts

Subject to rules to be framed by the Chief Controlling Revenue-authority and approved by the State Government, (Note: The words “and the governor General of India in Council,” omitted by Act 38 of 1920, s.2 and Sch.I, Pt. I) every officer performing the functions of a Collector of a District shall fix, and may from time to time alter, the number of peons necessary to be employed for the service and execution of processes issued out of his Court or the Courts subordinate to him.

Section 24. [Process served under this Chapter to be held to be process within meaning of Code of Civil Procedure.]

Rep. by the Amending Act, 1891 (12 of 1891), s.2 and Sch. I.

Chapter V – Of the Mode of Levying fees

Section 25. Collection of fees by stamps

All fees referred to in section 3 or chargeable under this Act shall be collected by stamps.

Section 26. Stamps to be impressed or adhesive

The stamps used to denote any fees chargeable under this Act shall be impressed or adhesive, or partly impressed and party adhesive, as the [(Note: Subs. by the A.O. 1937, for “L.G.” which had been subs. by Act 38 of 1920. s.2 and Sch.I, Pt I, for “Governor General of India in Council”.) Appropriate Government] may, by notification in the Official Gazette, from time to time direct.

Section 27. Rules for supply, number, renewal and keeping accounts of stamps

The [(Note: Subs. by the A.O. 1937, for “L.G.”)] Appropriate Government] may, from time to time, make rules for regulating -

(a) The supply of stamps to be used under this Act;

(b) The number of stamps to be used for denoting any fee chargeable under this Act;

(c) The renewal of damaged or spoiled stamps; and

(d) The keeping accounts of all stamps used under this Act:

Provided that, in the case of stamps used section 3 in a High Court, such rules shall be made with the concurrence of the Chief Justice of such Court.

All such rules shall be published in the Official Gazette, and shall thereupon have the force of law.

Section 28. Stamping documents inadvertently received

No document which ought to bear a stamp under this Act shall be of any validity, unless and until it is properly stamped.

But, if any such document is through mistake or inadvertence received, filed or used in any Court or office without being properly stamped, the presiding Judge or the head of the office, as the case may be, or, in the case of a High Court, any Judge of such Court, may, if he thinks fit, order that such document be stamped as he may direct; and, on such document being stamped accordingly, the same and every proceeding relative thereto shall be as valid as if it had been properly stamped in the first instance.

Section 29. Amended document

Where any such document is amended in order merely to correct a mistake and to make it conform to the original intention of the parties, is shall not be necessary to impose a fresh stamp.

Section 30. Cancellation of stamp

No document requiring a stamp under this Act shall be filed or acted upon in any proceeding in any Court or office until the stamp has been cancelled.

Such officer as the Court or the head of the office may from time to time appoint shall, on receiving any such document, forthwith effect such cancellation by punching out the figure-head so as to leave the amount designated on the stamp untouched, and the part removed by punching shall be burnt or otherwise destroyed.

Chapter VI – Miscellaneous

Section 31. [Repayment of fees paid on applications to Criminal Courts.]

Rep. by the Code of Criminal Procedure (Amendment) Act, 1923 (18 of 1923) s.163.

Section 32. [Amendments of Act 8 of 1859 and Act 9 of 1896.]

Rep. by the Amending Act, 1891 (12 of 1891) s.2 and Sch.I

Section 33. Admission in criminal cases of documents for which proper fee has not been paid

Whenever the filing or exhibition in a Criminal Court of a document in respect of which the proper fee has not been paid is, in the opinion of the presiding Judge, necessary to prevent a failure of justice, nothing contained in section 4 or section 6 shall be deemed to prohibit such filing or exhibition.

Section 34. Sale of stamps

(1) The [(Note: Subs. by the A.O. 1937, for “L.G.”) Appropriate Government] may from time to time make rules for regulating the sale of stamps to be used under this Act, the person by whom alone such sale is to be conducted, and the duties and remuneration of such persons.

(2) All such rules shall be published in the Official Gazette, and shall there upon have the force of law.

(3) Any person appointed to sell stamps who disobeys any rule made under this section, and any person not so appointed who sells or officers for sale any stamp, shall be punished with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.

Section 35. Power to reduce or remit fees

The [(Note: Subs. by the A.O. 1937, for “L.G” which had been subs. by Act 38 of 1920, s.2 and Sch.I, Pt.I, for “Governor General of India in Council”) Appropriate Government] may, from time to time by notification in the Official Gazette, reduce or remit, in the whole or in any part of [(Note: Subs. by Act 38 of 1920, s.2 and Sch.I, for “British India”) the territories under its administration], all or any of the fees mentioned in the First and Second Schedules to this Act annexed, and may in like manner cancel or vary such order.

Section 36. Saving of fees to certain officers of High Courts

Nothing in Chapters II and V of this Act applies to the Commission payable to the Accountant General of the High Court of Fort William, or to the fees which any officer of a High Court is allowed to receive in addition to a fixed salary.

SCHEDULES

SCHEDULE I

Ad valorem fees

Table of Rates of ad valorem Fees Leviable on the institution of suits.

SCHEDULE II

FIXED FEES