# Smt. Shail Agrawal v. State of U.P. and others

- **Citation:** (2007) 1 ILRA 10
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-11-03
- **Case number:** Writ Petition No.58504 of 2006
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shail-agrawal-v-state-of-u-p-and-others-40724
- **Pages:** 5

## Headnote

Constitution
of
India,
Art.
226Alternative Remedy-read with court fee
Act-section 6A, 7 (iv-A), 17 (iii) schedule
II-alternative
remedy-writ
petition
challenging order passed by the Trial
Court-mode of fixation of court fee under
challenge-argument regarding finality of
order-held-misconceived-patently
erroneous statutory remedy by way of
appeal under section 6 A-writ petitionheld-not maintainable.

Held: Para 12, 16 & 18

From the aforesaid, it is clear that this
Section is confined to such decision on a
question relating to the valuation for the
purpose of determining the Court fee.

From the aforesaid decisions, it is clear
that Section 12 of the Court Fees Act is
not applicable in the present case. In the
present case, the Civil Judge held that
the court fee is payable under Section
7(iv-A) of the Court Fees Act and that
Article 17 (iii) of Schedule II of the Court
Fees Act has no application. A decision
on the question whether the suit falls
under Section 7(iv-A) or Article 17(iii) of
Schedule II of the Court Fees Ac is not a
decision on a question relating to the
valuation but on a question relating to
the basis or the mode of computation of
the court fee. Keeping this in mind, the
Supreme Court in Nemi Chand case
(supra) held that the finality declared by
Section 12 is limited only to the question
of valuation pure and simple and does
not relate to the category under which a
certain suit falls.

In view of the aforesaid, the contention
of the learned counsel for the petitioner
is, that the order of the Civil Judge was
one under Section 12 of the Court Fees
Act and had become final is patently
erroneous.
Case law discussed:
AIR 1934 Alld.-620
2005 (3) AWC-2751
1957 ALJ-53,
AIR 1968 Alld-216

## Text

10 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.11.2006

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Writ Petition No.58504 of 2006

Smt. Shail Agrawal

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri B.B. Paul
Sri A.P. Paul

Counsel for the Respondents:
Sri G.K. Khanna
S.C.

Constitution
of
India,
Art.
226Alternative Remedy-read with court fee
Act-section 6A, 7 (iv-A), 17 (iii) schedule
II-alternative
remedy-writ
petition
challenging order passed by the Trial
Court-mode of fixation of court fee under
challenge-argument regarding finality of
order-held-misconceived-patently
erroneous statutory remedy by way of
appeal under section 6 A-writ petitionheld-not maintainable.

Held: Para 12, 16 & 18

From the aforesaid, it is clear that this
Section is confined to such decision on a
question relating to the valuation for the
purpose of determining the Court fee.

From the aforesaid decisions, it is clear
that Section 12 of the Court Fees Act is
not applicable in the present case. In the
present case, the Civil Judge held that
the court fee is payable under Section
7(iv-A) of the Court Fees Act and that
Article 17 (iii) of Schedule II of the Court
Fees Act has no application. A decision
on the question whether the suit falls
under Section 7(iv-A) or Article 17(iii) of
Schedule II of the Court Fees Ac is not a
decision on a question relating to the
valuation but on a question relating to
the basis or the mode of computation of
the court fee. Keeping this in mind, the
Supreme Court in Nemi Chand case
(supra) held that the finality declared by
Section 12 is limited only to the question
of valuation pure and simple and does
not relate to the category under which a
certain suit falls.

In view of the aforesaid, the contention
of the learned counsel for the petitioner
is, that the order of the Civil Judge was
one under Section 12 of the Court Fees
Act and had become final is patently
erroneous.
Case law discussed:
AIR 1934 Alld.-620
2005 (3) AWC-2751
1957 ALJ-53,
AIR 1968 Alld-216

(Delivered by Hon'ble Tarun Agarwala, J.)

1. The plaintiff presented a suit
praying that the three sale deeds dated
1.11.2004 and 17.2.2006 be declared null
and void and further prayed that the
defendants be restrained from transferring
the property on the basis of the sale deeds.
In paragraph 12 of the plaint, the plaintiff
disclosed the valuation of the sale deeds
and on that basis, paid a sum of
Rs.1300.00 as court fee. The Munsarim
submitted a report dated 19.7.2006 stating
therein that as per the valuation given by
the plaintiff, the total amount of court fee
payable as per Section 7 (iv-A) of the
Court Fees Act is Rs.62,792.50, whereas
the plaintiff has only paid a sum of
Rs.1300.00
towards
court
fee.
Consequently, the Munsarim reported that
the remaining court fee was required to be
paid by the plaintiff.

2. Pursuant to the aforesaid report,
the plaintiff filed an objection dated
1 All] Smt. Shail Agrawal V. State of U.P. and others
11
31.7.2006, which was registered as Misc.
Case No.136 of 2006. The plaintiff
submitted that the Court fee was not
payable as per Section 7 (iv-A) of the
Court Fees Act and, in fact, the court fee
was payable as per Article 17(iii) of
Schedule II of the Court Fees Act, and
therefore, the court fee paid by the
plaintiff
was
correct
and
was
in
accordance with the provisions of Article
17(iii) of Schedule II of the Court Fees
Act. The plaintiff therefore prayed that
the report of the Munsarim be set aside.

3. The Civil Judge by an order dated
14.8.2006 rejected the objection raised by
the plaintiff and upheld the report of the
Munsarim and directed the plaintiff to
clear the deficiency of the court fee so
that
the
suit
could
be
registered.
Aggrieved, the plaintiff has filed the writ
petition under Article 226/227 of the
Constitution of India praying for the
quashing of the order of the Civil Judge
dated 14.8.2006.

4. Heard Sri B.B. Paul, the learned
counsel for the petitioner and Sri G.K.
Khanna, the learned Standing Counsel.

5. A preliminary objection was
raised by the Court with regard to the
maintainability of the writ petition in view
of Section 6-A of the Court Fees Act as
applicable in the State of Uttar Pradesh.

6. The learned counsel for the
petitioner submitted that the impugned
order was one under Section 12 of the
Court Fees Act which had attained finality
and that no appeal or revision lay against
the said order. Consequently, the writ
petition was the only forum for the
redressal
of
the
grievance
of
the
petitioner. In support of his submission,
the learned counsel for the petitioner has
placed reliance upon a decision of Full
Bench of this Court in Messrs. Gupta &
Co. Vs. Messrs. Kripa Ram Brothers,
AIR 1934 Allahabad 620, in which it
was held that a decision given by a Court
in the trial of a suit under Section 12 of
the Court Fees Act does not amount to a
"case decided" as contemplated under
Section 115 of the Code of Civil
Procedure, and therefore, no revision lies
against the said order.

7. The learned counsel for the
petitioner further laid stress on a division
bench decision of this Court in the case of
Ram
Krishana
Dhandhania
and
another
Vs.
Civil
Judge
(Senior
Division), Kanpur Nagar and others,
2005 (3) AWC 2751, wherein the Court
held-

"Section 12 of the Act, 1870 deals
with the decision of question as to
valuation and it provides that such an
issue shall be decided by the Court in
which the plaint is filed and such decision
shall be final between the parties to the
suit. Thus, it is evident from the
provisions of Section 12 of the Act, 1870
that the decision taken by the Court on
such an issue shall be final between the
parties but in case the superior Court
while
exercising
the
appellate
or
revisional jurisdiction comes to the
conclusion that the issue has wrongly
been decided to the detriment of the
revenue, it can direct the party to make
the deficiency good for the reasons that
the object of the Act is not to arm a
litigant with a weapon of technicality but
to secure the revenue."

8. The learned counsel for the
petitioner
further
placed
various
12 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
judgments to show that the report of the
Munsarim was incorrect, and that the
Court fee was only payable under Article
17 (iii) of Schedule II of the Court Fees
Act.

In my opinion, the writ petition is not
maintainable at this stage.

Paragraph No.35 of the General
Rules Civil states as under:-

"35. Munsarim's duty in respect of
plaints.- A Munsarim of a civil court
appointed to receive plaints shall examine
each plaint presented to him, and shall
report thereon whether the provisions of
the Code and the Court-fees Act, have
been observed. Whether the claim is
within the jurisdiction of the court,
constitutes a cause of action, and has been
presented within the period prescribed for
the institution of such a suit, and whether
the plaint is otherwise in proper form
including that in a suit whether a notice
under Section 80, C.P.C., necessary, such
a notice has been given.
The Munsarim shall see that the
actual date of the presentation of the
plaint is entered upon the impressed
stamp and adhesive label, if any, below
the date of purchase endorsed on them.
On the back of all plaints the Munsarim
shall note-
(a) date of presentation of the plaint,
(b) name of presenter,
(c) classification of suit, and
(d) court-fee paid."

9. From the aforesaid, it is clear that
the Munsarim was required to report as to
whether the provision of the Court Fees
Act had been observed or not and whether
proper court fee had been paid or not. In
the present case, I find that the Munsarim
has submitted a report as per paragraph
No.35 of the General Rules Civil, stating
therein, that the court fee as per Section 7
(iv-A) of the Court Fees Act was required
to be paid and that the plaintiff had only
paid a certain amount and had not paid the
entire amount of the court fee. The Civil
Judge, rejected the objection of the
plaintiff, holding that the court fee was
required to be paid under Section 7(iv-A)
of the Court Fees Act and that Article
17(iii) of the Schedule II of the Court
Fees Act had no application.

10. The question now is, whether the
order passed by the Civil Judge is an
order passed under Section 12 of the
Court Fees Act or not?

11. Sections 5 and 12 of the Court
Fees Act confers finality on decision of
matters effecting the valuation and court
fee payable thereon. Section 5 of the Act
has no application to the decision of the
Civil Judge, and therefore, the said
provision is not being considered.

Section 12 of the Court Fees Act
reads as under:-

"12. Decision of question 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.

(ii) 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
1 All] Smt. Shail Agrawal V. State of U.P. and others
13
decided to the detriment of the revenue, it
shall require the party by whom such fee
has been paid, to pay within such time as
may be fixed by it, so much additional fee
as would have been payable had the
question been rightly decided. If such
additional fee is not paid within the time
fixed and the defaulter is the appellant,
the appeal shall be dismissed, but if the
defaulter is the respondent the Court shall
inform the Collector who shall recover the
deficiency as if it were an arrear of land
revenue."

12. From the aforesaid, it is clear
that this Section is confined to such
decision on a question relating to the
valuation for the purpose of determining
the Court fee.

13. The Supreme Court in Nemi
Chand and another Vs. The Edward
Mills Co. Ltd. and another, AIR 1953
SC 28 held that the finality under Section
12 of the Court Fees Act attaches only to
a decision which concerns valuation
simpliciter and that no finality attaches
when a Court decides a question whether
a case falls within one or the other
category of the cases mentioned in the
different sections and schedule of the
Court -fees Act.

14. In Lala Ram Babu Vs. Lala
Ramesh Chandra, 1957 ALJ 53, this
Court held that a decision of the trial court
relating to the valuation of the subject
matter of the suit for the purpose of
determining the amount of court fee
payable is final between the parties and
cannot be challenged in an appeal under
Section 6A of the Court Fees Act.

15. In Smt. Bibbi and another Vs.
Shugan Chand and others, AIR 1968
Allahabad 216, a Full Bench of this
Court held that Section 12 of the Court
Fees Act only attaches finality to the
question of valuation and not to the
category under which the suit falls. The
full bench further held that the decision of
the Civil Judge on the issue relating to
court fee had not become final.

16. From the aforesaid decisions, it
is clear that Section 12 of the Court Fees
Act is not applicable in the present case.
In the present case, the Civil Judge held
that the court fee is payable under Section
7(iv-A) of the Court Fees Act and that
Article 17 (iii) of Schedule II of the Court
Fees Act has no application. A decision
on the question whether the suit falls
under Section 7(iv-A) or Article 17(iii) of
Schedule II of the Court Fees Ac is not a
decision on a question relating to the
valuation but on a question relating to the
basis or the mode of computation of the
court fee. Keeping this in mind, the
Supreme Court in Nemi Chand case
(supra) held that the finality declared by
Section 12 is limited only to the question
of valuation pure and simple and does not
relate to the category under which a
certain suit falls.

17. In Ram Krishna Dhindhania's
case (supra) a division bench of this Court
also held the finality is, however, with
respect to arithmetical calculation and not
with
respect
to
classification,
i.e.,
category under which the suit falls.

18. In view of the aforesaid, the
contention of the learned counsel for the
petitioner is, that the order of the Civil
Judge was one under Section 12 of the
Court Fees Act and had become final is
patently erroneous.
14 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Section 6A of the Court Fees Act as
applicable in the State of U.P. reads as
under:-
" 6-A. Appeal against order to pay
court-fee. (1) Any person called upon to
make good a deficiency in court-fee may
appeal against such order as if it were an
order appeal able under Section 104 of the
Code of Civil Procedure.

The party appearing shall file with
the memorandum of appeal, a certified
copy of the plaint together with that of the
order appealed against.

(2) In case an appeal is filed under
Sub-section (1), and the plaintiff does not
make good the deficiency, all proceedings
in the suit shall be stayed and all interim
orders made, including an order granting
an injunction or appointing a receiver,
shall be discharged.

(3) A copy of the memorandum of
appeal together with a copy of the plaint
and of the order appealed against shall be
sent forthwith by the appellate court to the
[Commissioner of Stamps].

(4) If such order is varied or reversed
in appeal, the appellate court shall if the
deficiency has been made good before the
appeal is decided grant to the appellant a
certificate, authorising him to receive
back from the Collector such amount as is
determined by the appellate court to have
been paid in excess of the proper court
fee.

(5) The court may make such order
for the payment of costs of such appeal as
it deems fit, and where such costs are
payable to the Government, they shall be
recoverable as arrears of land revenue."

In my view, the order of the Civil
Judge is an order which is appealable
under Section 6A of the Act. The question
as to whether the court fee payable should
be under Section 7 (iv-A) or under
Section 17(iii) of Schedule II of the Court
Fees Act can be questioned by the
plaintiff by filing an appeal under Section
6A of the Court Fees Act.

In view of the aforesaid, the
petitioner has a statutory remedy of filing
an appeal under Section 6A of the Court
Fees Act as applicable in the State of
Uttar Pradesh. The writ petition is
therefore dismissed on the ground of an
alternative remedy. Petition Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.12.2006

BEFORE
THE HON'BLE AMITAVA LALA, J.
THE HON'BLE SHIV SHANKER, J.

Criminal Misc. Writ Petition No. 9400 of 2005
Connected with
Crl. Misc. Writ Petition Nos.3590 of 2004, 3591
of 2004, 5978 of 2004, 8619 of 2004, 6906of
2005, 11868 of 2005, 11884 of 2005, 11885 of
2005, 11901 of 2005, 11911 of 2005, 12310 of
2005, 12333 of 2005, 12397 of 2005, 12526 of
2005, 12527 of 2005, 12550 of 2005, 12652 of
2005, 12753 of 2005, 12768 of 2005, 12802 of
2005, 12859 of 2005, 12879 of 2005, 157 of
2006, 340 of 2006, 363 of 2006, 1593 of
2006, 1682 of 2006, 1768 of 2006, 1805 of
2006, 2339 of 2006, 2465 of 2006, 2545 of
2006, 2643 of 2006, 2730 of 2006, 3424 of
2006, 3983 of 2006.

Jainendra @ Chhotu Singh
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri N.K. Mishra and others