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1976 DIGILAW 665 (ALL)

Sharda Prasad v. Mata Amber

1976-10-08

M.P.PANDEY

body1976
JUDGMENT M.P. Pandey, M. - This miscellaneous application arises out of a second appeal No. 112 (z) of 1963-64/Allahabad. That second appeal was dismissed by Sri J.B. Tandon, Judl. Member, Board of Revenue on November 23, 1966. The plaintiff had claimed Sirdari rights over the land in dispute while the defendants were contesting this claim. The suit was dismissed by the trial court on November 30, 1962; the first appeal was dismissed by the Addl. Commissioner on September 4, 1963. Both the courts gave a finding that the plaintiff was not in possession nor a Sirdar. These findings were upheld in the second appeal which was dismissed on November 23, 1966. 2. Then a review application was filed on January 2, 1967. The review application was dismissed on September 8, 1971 in presence of the applicant, but in the absence of his counsel. 3. Thereafter another review application was filed on September 8, 1971, i.e. the same day for readmitting the review petition to hearing saying that the petitioner's counsel Sri Bhawani Prasad could not come to the court on time because his own case was fixed before the Sale Officer, Karchhna on the same day. A prayer was made on this ground to readmit the review application. It was readmitted by the learned Member on October 25, 1971. 4. February 14, 1972 was the next date of hearing, but the learned counsel sent a slip that he was busy in the High Court. He wanted adjournment and the hearing was adjourned. 5. May 29, 1972 was fixed for hearing. Again the learned counsel sought adjournment on personal grounds. 6. September 20, 1972 was fixed for hearing. Learned counsel sought adjournment on grounds of illness. 7. In the meantime a report was made by the office that the adjournment application dated May 27, 1972 seeking adjournment of the review application fixed for May 29, 1972 was insufficiently stamped. It bears court fee of Rs. 2.25. According to office it should have been Rs. 4.50. Learned counsel maintained that the correct stamp was Rs. 2.25. The matter was then referred to the Junior Secretary, Board of Revenue, who stated that the correct court fees was Rs. 4.50 vide his letter dated October 19, 1972. It bears court fee of Rs. 2.25. According to office it should have been Rs. 4.50. Learned counsel maintained that the correct stamp was Rs. 2.25. The matter was then referred to the Junior Secretary, Board of Revenue, who stated that the correct court fees was Rs. 4.50 vide his letter dated October 19, 1972. The opinion of the Junior Secretary was questioned by learned counsel Sri Bhawani Prasad by his letter dated October 23, 1973 and then a new series of hearing stated as to what was the correct court fees on the adjournment application and the following dates were fixed for its hearing:- (i) On February 19, 1974 learned counsel orally requested for adjournment as he had his own personal case in the High Court. (ii) On March 25, 1974 again learned counsel requested for adjournment to some future date. (iii) On June 27, 1974 the Member was on leave. (iv) On October 1, 1974 Member was at Lucknow. Adjourned to November 5, 1974. (v) On November 5, 1974, the Inspector of Stamps sought adjournment and, therefore, it was adjourned to January 2, 1975. (vi) On January 2, 1975, the learned counsel requested for adjournment. (vii) On March 4, 1975 adjourned to May 1, 1975 because Member was out of station. (viii) On May 1, 1975 adjourned at the request of the learned counsel. (ix) On August 13, 1975 adjourned at the request of the learned counsel. (x) On August 26, 1975 adjourned at the request of the learned counsel. (xi) On November 27, 1975, adjourned at the request of the learned counsel. (xii) On February 3, 1976 Member was out of station and, therefore, adjourned. (xiii) On April 6, 1976 Member was out of station and therefore, adjourned. (xiv) On July 15, 1976 Member transferred and hence adjourned to October 4, 1976. 8. On October 4, 1976 the matter was taken up before me and although learned counsel pleaded illness and wanted adjournment, but he was persuaded to put up his case. (xiii) On April 6, 1976 Member was out of station and therefore, adjourned. (xiv) On July 15, 1976 Member transferred and hence adjourned to October 4, 1976. 8. On October 4, 1976 the matter was taken up before me and although learned counsel pleaded illness and wanted adjournment, but he was persuaded to put up his case. From the above it will appear that by a queer mechanism this case has been dragging on from January 2, 1967 and the matter to be decided is whether there could not be a review of the order passed by my learned predecessor dated November 23, 1966 and another ancillary matter to be decided is whether the court fees on the adjournment application should be Rs. 2.25 or Rs. 4.50. 9. I have heard learned counsel at length. Whatever he wanted to say was heard. His first argument is that the adjournment application falls under Schedule II, Item 1(b) where it is written that: "When presented to a Civil Criminal or Revenue Court, or to a Collector, or any Revenue Officer having jurisdiction equal or subordinate to a Collector, or to any Magistrate in his executive capacity and not otherwise provided for by this Act."....Rs. 1.50." It has been argued that the Board of Revenue is revenue court and, therefore, an application of adjournment would court fee stamp double of Rs. 1.50 as laid down in Schedule II (1) (f)(ii). No doubt the Board of Revenue is a revenue court, but it is a superior court then the court envisaged above. The provisions cited above make it clear that the court referred to therein are of the level of a Collector of a Magistrate. These provisions do not apply to the Board of Revenue. I am of the view that it is clause (c) which is applicable in the present case in which it is written that when an application or petition presented to a Chief Commissioner or other Chief Controlling Revenue Authority, then the court fee should be Rs. 3/-. At the end of clause (f) it is written that court fee payable in an application for adjournment shall be double of the court fee payable on an ordinary application. So the court fee payable should be Rs. 6/-. It has been given in Rule 338-A(3) that the court fee shall be reduced to 75% if the valuation does not exceed Rs. So the court fee payable should be Rs. 6/-. It has been given in Rule 338-A(3) that the court fee shall be reduced to 75% if the valuation does not exceed Rs. 500/-. In this particular case the valuation mentioned in the plaint is Rs. 6.50. Therefore, 75% of Rs. 6.00 i.e. Rs. 4.50 is the correct court fee. And the learned counsel should have affixed court fee stamp of Rs. 4.50 instead of Rs. 2.25. 10. It has been urged by the learned counsel that the court presided over by the Member, Board of Revenue is not that of the Chief Controlling, Revenue Authority and therefore, Item I clause (c) will not be applicable. I do not agree with this argument. Chief Controlling Revenue Authority has been defined by section 3(1) of the General Clauses Act in a State where there is Board of Revenue than that Board. In Uttar Pradesh this expression, therefore, continues to mean the Board of Revenue. This is clear from the Uttar Pradesh Stamp Manual Vol. 1 page 9. So this controversy has been set at rest Adjournment applications presented before the Board would be chargeable at the same rate as presented before the Chief Revenue Controlling Authority in Item I clause (c) of Schedule II. 11. A third argument is that the U.P. Court Fees Act by which the court fee on application has been enhanced fee on application has been enhancement is on the high side and has been done to raise money for the State Exchequer. This argument is not to be addressed before me, but before the Hon'ble High court because this court does not have the writ jurisdiction. 12. Fix the case for hearing of review application on November 5, 1976. No further adjournment shall be granted on that date.