' This order will dispose of office reference in three connected matters namely J. M. 58,67, J. M. 60 and 65 of 1967.
2. Brief facts relevant for the disposal of office reference are that these miscellaneous petitions, as submitted by the counsel, were among, the eleven petitions filed by the heirs of one Mahmood Khan for permission to sue in forma pauperis. Out of them seven petitions were allowed by the Court and in four the Additional Registrar refused to allow the application to sue as pauper. The present three petitions were among those four where permission was refused by the order of Additional Registrar on 30th May, 1968. Thereafter the petitioners filed applications under rule 15, S. C. C. R. (C. S.) which were also dismissed by the Court on 4th October, 1968..
3. Thereafter the matter was taken up by way of petitions for special leave to appeal to the Supreme Court which appear to have been rejected. The petitioner then sought review of the orders which petitions were also dismissed finally by the Supreme Court by order dated 12th September.
1974. The last para. Of this order reads as under :- "The petitioners submit that they may be allowed to pay court-fee in the High Court and the time taken by them before this Court should be taken into consideration for that purpose. The petitioners are directed to make an application in this respect to the High Court. We are sure that the High Court will consider it sympathetically. Subject to this remark, the review petitions are dismissed."
On the same day, viz. 12thSeptember, 1970 the petitioners submitted applications under section 149, C. P. C. To this Court praying that sin their review petitions had been dismissed by the Supreme Court they may be allowed two weeks' time to pay court-fees. On 7th October, 1974 my learned brother Fakhruddin Ebrahim, J., passed the following orders this application :- "The plaintiff is granted one month's time to pay court-fees subjec to all just exceptions."
' In obedience to the above order, the applicant has paid the court-fee at the rate prevailing under the law as it stood in 1967 when the Judicia Miscellaneous application was filed.
4. Now the office has sought orders through this reference on two points ; firstly whether court-fees now paid by the plaintiff at the rate payable in 1967 are proper court-fees, or the plaintiff be called upon to pay court-fees at the rates prevalent on 7th October, 1974 when this Court permitted the plaintiff to pay the court-fees ; secondly whether in view of the application for permission to sue as a pauper having been finally dismissed the same petition should be registered as a suit on payment of proper court-fees.
5. It appears that notice of this office reference was served on the . Applicant as well as on the respondent in these J. M. Applications. I have heard Mr. Muhammad All Sayeed for the said respondents and Mr. A. K. M. Idris, for the applicants.
6. Mr. Muhammad Ali Sayeed urged that the application under section 149, C. P. C. Was not maintainable and consequently the order allowing the applicant to pay court-fees is without jurisdiction. He, therefore, contended that after hearing him, the aforesaid application under section 149, C. P. C. May be dismissed which will abviate the necessity for registering the suit. Mr. Muhammad Ali addressed a very well prepared argument in elaboration of his contention citing copiously from various decisions, the main burden of which writs that the time to make an application for payment of court-fees under section 149 was before the Court finally disposed of the pauperism application but in no case after the Court has been rendered functus officio by finally disposing of the application under Order XXXIII, rules 1 and 2, C. P. C. Mr. Idris on the other hand, has strongly objected to the respondent appearing at this stage and seeking to be heard in opposition to the application under section 149, C. P. C. Which, according to the counsel stands disposed of by order of the Court as reproduced above. On the merits of the application Mr. Idris refereed me to the order dated 4th October, 1968 by a learned Single Judge of this Court while disposing of the appeal filed by the applicants under rule 15 of the S. C. C. R., wherein the learned Judge while rejecting the appeal made the following observations :- "The further result is that these four applicants must, if they desired to prosecute their applications, pay the proper court-fees."
' It was accordingly contended by Mr. Idris that by the aforementioned order the applications were allowed to be treated as plaints for fresh suits. But as the applicants were aggrieved with the dismissal of their appeal the matter was taken to the Supreme Court which also permitted them to apply to the High Court for payment of court-fees.
7. After giving my best consideration to the respective contentions of the learned counsel I feel that the objection of Mr. Muhammad Ali Sayeed is premature at this stage in view of the order passed by my learned brother Fakhruddin Ebrahim, J., on 7th October, 1974. There is no doubt that the matter was left open to objection at the appropriate time if any of the rights of the defendants are affected by the extention of time to pay court-fees. But the necessary consequence of such an order apparently was that the suit had to be registered in the normal course on payment of court- fees within time allowed by the Court. Mere registration of suit does not in any way prejudice any of the rights of defendants as it will be open to them to raise any defences that were available to them as regards limitation or otherwise irrespective of the order allowing the payment of court- fees. This is clearly so by the use of the words, "subject to all just exceptions". Mr. Muhammad Ali Sayeed had argued that the order passed under section 149, in the light of the settled position of law, was without jurisdiction. However, I feel that it is not open to the respondents to challenge the correctness or the validity of the order collaterally. The position is that the plaintiff has paid the court-fees according to him as are payable but the office has raised an objection that the proper court-fees have not been paid. Accordingly the plaint can be rejected for non-payment of proper court-fees only in consequence of an order passed by the Court to pay the deficit. Thus the only remaining question to be considered at this stage is whether the plaintiff should be called upon to pay the court-fees in accordance with the law prevailing at the date of the order of the Court permitting the .Plaintiff to pay court-fees or at the date of institution of the petition for pauperism in 1967.
8. In this connection, Mr. Idris submitted that an order passed under section 149, C. P. C. Relates back to the date of institution of the suit. This submission was based upon the concluding words of section 149 which provides that upon payment of the court-fees, the document shall have the same force and effect as if such fees have been paid in the first instance. Counsel further referred to Order XXXIII, rule 10, C. P. C. Which .Provides for recovery of court-fees in case the plaintiff succeeds in a suit in which permission is granted to sue as a pauper. According to this rule the successful pauper plaintiff is required to pay the same court-fees which would have been paid by the plaintiff if he had not been permitted to sue as a pauper. The learned Assistant Advocate- General relied upon rule 15 of Order XXXIII and submitted that the plaintiff would be required to pay the same court-fees as he would have paid on the plaint on the date when his application for permission to sue as a pauper was. Dismissed.
9. I find great force-in the contention that the power vesting in the Court under section 149, C. P. C.
Is the power to condone the act of non-payment or deficient payment Of court-fees and once in exercise of this power a plaintiff is permitted to' pay court-fees or the deficit court-fees as the case may be, the plaint "shall have the same force and effect as if such fee has been paid in the first instance. The liability to pay stamp fee by affixing stamps of the requisite amount accrues when the plaint is presented in the Court. Consequently the relevant date for computation of the quantum of fees would be the date on which the liability to pay the fees thus accrues. A plaint requires to be stamped with the stamps of the appropriate amount under section 4 or section 6 of the Court Fees Act, 1870 which provides that no document chargeable with court-fees shall be filed or recorded in any Court unless proper court-fees has been affixed thereon. Consequently, the institution of any proceedings cannot be valid if proper court-fees has not been affixed at the time of institution. Section 149, C. P. C. Is one of the statutory exceptions to this rule and operates as a proviso to the aforesaid sections 4 and 6 of the Court Fees Act, in so far as upon permission being granted and consequential payment of court-fees the plaint takes effect and force from the date of presentation. The court-fees is a fiscal statute which must be construed strictly and in favour of the subject. The charging sections namely sections 4 and 6 plainly create the liability for payment of court-fees at the time of presentation of the proceedings and, therefore, the fee is accrued with reference to that date.
10, It has not been shown to me that the Finance Act amending the scale of court-fees has been given retrospective operation. The Indian Supreme Court in State of Bombay v. M/s. S. G. Films Exchange where the Court Fees Act was amended after the decision of the suit, the question raised was whether the appeal against such decision would be governed by the law as it prevailed at the time of the institution of the suit, went to the extent of holding that the court-fees payable on the memorandum of appeal filed after the amending Act would be payable according to the law in force at the date of filing of the suit and not in accordance with the law in force at the date of filing of memorandum of appeal. However, the question for consideration in this case is not identical as in this case the law changed pending the suit and the only question to consider is, as stated above whether the fees are payable at the scale under the amended law which came into force after the1 institution of the proceedings but before the order condoning the delay in payment of fees was passed. Nevertheless, I would venture to seek assistance from the rule laid down in the Indian Supreme Court case, in the light of reasons already stated by me above. This view is further supported by the observations made in the case of Tara Prasanna v.. Norma Singha Mooraj where it was held that the amount of court-fees leviable on the plaint must be determined by reference of the law as it stood on that date.
11. The position that, therefore, emerges is that the court-fees in this case would be payable in accordance with law that was applicable at the time of commencement of institution of this suit.
Now, as stated earlier; on behalf of the defendants it has been strongly urged that the application for leave to sue as a pauper can be allowed to be converted into a plaint only at the time when such application is disposed of. It was further contended that such application cannot be converted into .a plaint hut a separate suit can be instituted on the dismissal of application under Order XXXIII, rule 15, C. P. C. This is, therefore, a controversial matter as to when the plaint in this case is deemed to have been instituted.
If I give a decision on this point it would adversely affect the rights of the defendants as they may be precluded from raising the defence of limitation. I would, therefore, not give a final decision on this matter. However, in the view that I have ve taken tentatively I hold that court-fees paid at the scale chargeable on the date of institution of the petition under Order XXXIII C. P. C. Are proper. But this will be subject to any defences that may be urged and the decision of the Court as to when the proceedings of the present suit are deemed to have commenced. In such event the court- fees would be payable with reference to the law prevalent at such date.
12. In the result, I order that no further court-fees shall be required on the plaint and the suit shall be registered. AIR 1960 SC 980 AIR 1924 Cal. 731