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1997 DIGILAW 703 (PAT)

Uday Prakash Dwivedi v. Punjab National Bank

1997-09-25

S.N.JHA

body1997
Judgment S. N. Jha, J. 1. This civil revision by the plaintiff is directed against the order dated 3-5-97 passed by the 1st Subordinate Judge, Chapra in Title Suit No.21 of 1997 asking him to pay ad valorem court-fee on the plaint. 2. The petitioner has filed Title suit No.21 of 1997 seeking declaration that there was no outstanding dues of the defendant- Punjab National Bank against him and Certificate Case No.10 of 1993-94 was fit to be cancelled, and for further declaration that the order dated 7/10-9-96 passed by defendant No.3 District Certificate Officer, Chapra was illegal, without jurisdiction and nullity in the eye of law. The petitioner was paid Court-fee of Rs.250/- on the plaint. The Saristedar submitted report to the effect that he should pay ad valorem Court-fee. The petitioner objected to the report stating that the suit has been filed under Sec.43 of the bihar Public Demands Recovery Act (hereinafter called, the PDR Act) and in terms of Art.17 (i) of Schedule-II of the Court-fees Act, 1870 corresponding to Art.13 (i) of Schedule-II of the court-fees (Bihar Amendment) Act, 1995 (hereinafter called, the Court-Fees Act), he is liable to pay fixed court-fee of Rs.250/-. The Court below rejected his contention. It has observed that the petitioner has not only sought declaration but has also prayed for consequential relief. Therefore, he is liable to pay ad valorem Court-fee under Sec.7 (iv) (c) of the Court-Fees Act. 3. It is true that the relief has been claimed in the manner as if it was a declaratory suit. But while considering the question of Court-fee, the substance of the case is to be seen and not the form in which relief is claimed. Upon reading of the plaint there does not appear to be any doubt that the suit, in substance, is one for cancellation of the certificate which has been issued against the petitioner under the provision of PDR act and comes within the ambit of Sec.43 of that Act. 4. Upon reading of the plaint there does not appear to be any doubt that the suit, in substance, is one for cancellation of the certificate which has been issued against the petitioner under the provision of PDR act and comes within the ambit of Sec.43 of that Act. 4. Before noticing the provisions of section 43 of the PDR Act it would be apt to quote Art.17 (i)/13 (i) of schedule II of the Court-Fees Act as hereunder: "plaint or memorandum of appeal in each of the following suits: (i) to alter or set aside a summary decision or order of any of the civil Courts but not established by Letters Patent or of any revenue Court; (ii ). . . . The key words of the Article, it would appear, are "summary decision or order". There cannot be any dispute that the Certificate Officer appointed under the PDR Act is a revenue Court in order to find out the nature of the decision of the Certificate Officer it would be appropriate to notice the scheme of the said Act, so far as relevant. " 5. Section 4 of the PDR Act provides that when the Certificate Officer is satisfied that any public demand payable to the Collector is due, he may sign a certificate in the prescribed form, stating that the demand is due and shall cause the certificate to be filed in his office. Sec.5 contemplates requisition for recovery of any public demand payable to any person other than the collector. Sec.6 provides that on receipt of such requisition the Certificate Officer, if he is satisfied that the demand is recoverable and the recovery is not barred by law, may sign a certificate stating that the demand is due and shall cause the certificate to be filed in his office. Sec.7 provides for service of notice alongwith copy of the certificate on the certificate-debtor. Section 9 provides that the certificate-debtor may within the prescribed period file a petition denying his liability, in whole or in part. Sec.10 contemplates hearing and determination of such petitions. It lays down that the Certificate officer, if necessary, may take evidence and determine whether the certificate-debtor is liable for the whole or any part of the amount for which the certificate was signed, and may set aside, modify or vary the certificate accordingly. Sec.10 contemplates hearing and determination of such petitions. It lays down that the Certificate officer, if necessary, may take evidence and determine whether the certificate-debtor is liable for the whole or any part of the amount for which the certificate was signed, and may set aside, modify or vary the certificate accordingly. Where he is of the opinion that the petition involves a bona fide claim of right to property, he is to refer the petition to the Collector for orders. If the Collector is also satisfied in this regard, he shall make an application cancelling the certificate. Sec.60 provides for appeal. Sec.62 provides for revision. These orders are subject to the result of the suit which the Certificate-debtor may institute in the Civil Courts under section 43. It would be appropriate at this stage to quote Sec.43, so far as relevant, as hereunder: "suit in Civil Court to have certificate cancelled or modified- - The certificate-debtor may, at any time within six months- (1) from the service upon him of the notice required by Sec.7, or (2) if he files, in accordance with section 9, a petition denying liability from the date of the determination of the petition, or (3) if he appeals, in accordance with section 60, from an order passed under section 10 from the date of the decision of such appeal, bring a suit in a Civil Court to have the certificate cancelled or modified and for any further consequential relief to which he may be entitled provided that no such suit shall be entertained - (a) in any case, if the certificate-debtor has omitted to file, in accordance with section 9 a petition denying liability, or to state in his petition denying the ground upon which he claims to have the certificate cancelled or modified, and cannot satisfy the Court that there was good reason for the omission, or (b) 6. From the aforementioned provisions it would appear that the signing of the certificate under Section 4 or Sec.6 of the Act is on the basis of prima facie ex pane satisfaction of the certificate Officer. No doubt, Section 10 contemplates determination of the liability in presence of the certificate-debtor/objector when the certificate may be modified, varied or set aside, but this is obviously subject to the result of any suit which may be brought by aggrieved certificate-debtor. No doubt, Section 10 contemplates determination of the liability in presence of the certificate-debtor/objector when the certificate may be modified, varied or set aside, but this is obviously subject to the result of any suit which may be brought by aggrieved certificate-debtor. In other words the decision of the Certificate Officer under Sec.10 is not conclusive of the matter. The order of the appellate authority under Sec.60 does not stand on any higher pedestal. It may be noted that for bringing suit under Sec.43 the certificate-debtor need not necessarily wait for determination of the objection petition under Sections 9/10 or the result of the appeal under Sec.60, he may straightway file a suit upon service of notice under Sec.7 after filing objection under Sec.9 as laid down in proviso (a ). 7. The expression summary or summary decision has not been defined in the Court-Fees Act. Dwelling upon the meaning of the expression Sir richard Couch, CJ, in Maharaja Dhiraj mahtab Ghana Roy Bahadur V/s. Bacharan Hazra, (1870) 5 Beng LR 162 observed as follows: "it is the decision of a Court which hears and determines the matter, but does not finally conclude the parties, a proceeding in which the Court makes an order and determines the matter in issue, if I may so describe it, for the present occasion. " In Dayachand Nemchand V/s. Hemchand Dharamchand, ILR 4 Bombay 515, a Full Bench of the Bombay High court observed, "the circumstance that the Legislature expressly recognises the right of the party defeated in the proceeding to bring a regular suit to re-agitate the point decided, is a strong indication that the legislature regarded the decision as summary. " While considering the nature of the order passed under Order XXI Rule 101 of the Code of Civil Procedure this Court in Mathura Pd. Mlssir V/s. Sukhdeo Rai, 1976 PUR 519, held that decision of the executing Court on objection under Rule 100 of Order XXI is summary decision liable to be set aside in a suit under Rule 103 for which a fixed Court fee under Art.17 (i) of Schedule II of the Court-Fees Act is payable. Mlssir V/s. Sukhdeo Rai, 1976 PUR 519, held that decision of the executing Court on objection under Rule 100 of Order XXI is summary decision liable to be set aside in a suit under Rule 103 for which a fixed Court fee under Art.17 (i) of Schedule II of the Court-Fees Act is payable. I may also refer to the cases of joy Durga Dassi V/s. Maharaj Kumar sourish Chandra Roy, AIR 1940 Calcutta 215 and Kapoor Chand V/s. Stete and others, AIR 1960 Rajasthan 171, relied upon by the Counsel for the petitioner, the decision wherein was rendered in the context of the suit under identical provisions of the respective State Public demands Recovery Act. 8 In the above premises, it has to be held that the order of the Certificate officer is a summary decision or order within the meaning of Art.17 (i)/13 (i)of the Second Schedule of the Court fees Act. That being the position, the petitioner is liable to pay only fixed court-fee. The impugned order of the court below asking him to pay ad valorem court-fee cannot be said to be in accordance with law. 9. In fairness to the Counsel for the opposite party I may mention that in support of his contention that ad valorem court-fee under Sec.7 (iv) (c) of the Court-Fees Act is payable, he placed reliance on Kedarnath Gupta V/s. Dulhin Mod Kuer, AIR 1961 Patna 470 and Bishwanath Agaraballa V/s. Smt. Nathibhai Sharma, 1972 PLJR 460. The decisions aforesaid related to suit for declaration that decree of the Civil court was nullity and have no application to the case in hand which relates to the "summary decision" of a revenue Court. In the result, the civil revision is allowed, the impugned order is set aside. I will make no order as to cost. Revision allowed.