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2003 DIGILAW 84 (PAT)

Nunu Lal Yadav v. State Of Bihar

2003-01-21

R.S.GARG

body2003
Judgment R.S.Garg, J. 1. In the present matter, a typed copy of the impugned order has been filed at Annexure-5 with a declaration in the writ application affidavit that the annexures are true/photo copies of their respective originals, I, of my own, required the Counsel to satisfy me that in a case like present where an order passed by the subordinate Tribunal/subordinate authority which is under the control of this High Court either under Art. 226 or 227 of the Constitution of India or an order passed by a quasi-judicial Tribunal is required to be challenged by filing a certified copy or a plain photo copy or true typed copy of such a document can be filed. I also required the Counsel to address on the question that if the certified copy is to be filed then in accordance with Sec. 4 read with Schedule I, Clause 8, Court fees tickets of Rs. 10.00 for every three hundred and sixty words or fraction of three hundred and sixty words are to be affixed or not. As the matter is likely to affect the fraternity at large and was in my opinion of general importance, I requested the lawyers to assist the Court on the said point. I also requested Mr. A.K. Singh, learned Counsel for the State to assist me. 2. Undisputedly the High Court Rules govern the filing of the petitions, appeals, applications etc. The High Court Rules framed on the administrative side do control the proceedings to be taken. The High Court rules also provide for submission of the documents either in original or their true copies or the certified copies. 3. The question for consideration simply is that in accordance with Chapter III-A of Part II of the Rules of the High Court at Patna, 1916, is it permissible for an Applicant/Pleader/Advocate to file a true copy/photo copy of the certified copy or of the original when a particular order is under challenge. 4. 3. The question for consideration simply is that in accordance with Chapter III-A of Part II of the Rules of the High Court at Patna, 1916, is it permissible for an Applicant/Pleader/Advocate to file a true copy/photo copy of the certified copy or of the original when a particular order is under challenge. 4. It was argued by the learned Counsel for the petitioner and supported by some eminent lawyers at the Bar to show that in accordance with Rule 4 of Chapter III of the Part II of the Patna High Court Rules, a liberty is given to the petitioner to file a document in its original form or its certified copy or its photostat copy or a true copy of the same and as the liberty is unrestricted barring the matters relating to Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956, every presentation in the High Court for inviting its original jurisdiction along with a photo copy or a true typed copy would suffice the requirement. It is, however, conceded before me that if a certified copy of a document is filed then in accordance with the provisions of sec. 4 read with Scheduled I (Item No. 8), Court fees will have to be paid. 5. It is contended that in case of annexures to an affidavit being not the original document or its certified copy, the declarant shall also State in the affidavit that the annexure is a true copy of the original. Placing reliance upon the language of Sub-rule (2) of Rule 4 of Chapter III, it is contended that a certified copy of the original document can be filed but the same being not mandatory, a true copy of the same can be filed provided a declaration is made in the affidavit that it is a true copy. It is also contended that in cases arising out of 1956 Act, a certified copy of the order or orders impugned should only be annexed or filed with the application. From this language it is sought to be contended that in cases arising out of Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956, only certified copies of the orders are to be filed and plain copies of the orders other than the final order will be accepted, if annexed. From this language it is sought to be contended that in cases arising out of Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956, only certified copies of the orders are to be filed and plain copies of the orders other than the final order will be accepted, if annexed. Learned Counsel for the petitioner and members of the Bar submitted that as the liberty is granted to them to file the true copies, it is not necessary to file the certified copy and affix the authentication fees. 6. On the other hand learned Counsel Mr. A.K. Singh submits that a perusal of Sub-rule (2) and its proviso would make it clear that each of these are in two parts. According to him the documents are to be filed in original or certified copies are to be filed but in case of non-availability only, a true copy can be filed provided a declaration is made in the affidavit of the petitioner. He also submits that the first part of the proviso mandates that in cases of Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 certified copies of the orders are to be filed but that does not grant any liberty to file a true copy of any other final order. He submits that plain copies of orders other than the final order will be accepted, if annexed. According to him, the second sentence of the proviso has its independence and is to be independently appreciated and is not dependent upon the first sentence of the proviso. 7. I have heard learned Counsel for the parties at length. 8. Rule 4 of Chapter III provides that every petition and every affidavit with annexure, if any, shall be entitled "In the High Court of Judicature at Patna", and shall be couched in proper language, signed and dated either by the petitioner or declarant or his pleader presented either by the petitioner...... Sub-rule (2) of Rule 4 provides that in case of the annexure to an affidavit being not the original document or its certified copy, the declarant shall also State in the affidavit that the annexure is a true copy of the original, Does it mean that the liberty is given to the petitioner to file a photostat copy or true copy of every document and even of a document, the certified copy of which is available with him. The proviso in fact is in two parts. The first part of the proviso requires that when a case arising out of Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 then a certified copy of the order or orders impugned are to be filed/ annexed with the application. In a case like that a true copy of the final order or impugned order is required to be filed and there is no exception to it because the proviso would govern Sub-rule (2) of Rule 4. 9. The second sentence of the proviso says that plain copies of order other than the final order will be accepted, if annexed. According to the learned Counsel for the petitioner this must be read in conjunction with the first sentence and should only mean that plain copies of the orders other than the final order under the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 can be accepted while according to Sri A.K. Singh, the second sentence of the proviso has its independent existence and has to be read independently to mean that in every case a plain copy of the order other than the final order will be accepted, if so annexed. A proper appreciation of Sub-rule (2) of Rule 4 and the proviso would make it clear that in a given case when certified copy can be made available to a party or when the party is in possession of the certified copy then the said party must file the certified copy. A party cannot avoid filing the certified copy misinterpreting the Rule and avoid payment of the Court fees for purposes of authentication. Second sentence of the proviso in fact is independent when it says that plain copy of the order other than the final order will be accepted, if annexed. In a given case a person is not aggrieved by all other orders but is aggrieved by those orders only which are against his interest. In a given case he is obliged to file the certified copy of the final order because all other orders merge in the said final order, If a person is aggrieved by the final order than he must file a certified copy of the final order, Sub-rule (2) of Rule 4 does not authorise an Advocate/party or the said person to avoid filing the certified copy. It simply authorises him that in a given case, I would add, if he does not have in his possession a certified copy or the original of it, then he may file a true copy of the original and declare it on oath that in the given case the document filed by him is the true copy of the original or of the certified copy. At this stage it would also be necessary to refer to Rule 6 of Chapter lll-A of the Patna High Court Rules. The Designated Officer after the entries are made is required either himself or through office staff under his supervision to check certain documents, Clause (e) of Rule 6 says that the . Desjgnated Officer or any person authorised by him shall take the certified copy of the order under challenge and/or of any order required under Rules of the High Court or under any other statute. If the certified copy is at all not required to be filed then Clause (e) of Rule 6 of Chapter lll-A of the Patna High Court Rules would be redundant and otiose. Filing of certified copy in fact is not an empty formality. Filing of a certified copy enaures that whatever is filed before the Court is a true copy and not a true copy but is certified to be a true copy by the Officer, who his issued the same. Filing of a certifified copy in fact avoide any pension or likelihood of a mistake. One must net ordinarily oritioise the munner of filing ordinary typed copies, but as tha issue is raised before me, I must say that the true copies which are filed in the High Court are filed in reckless manner, the copies in fact are not true copies but the Counsel and the parties relying upon the wisdom of the Typist, who types whatever he understands are filing those. Sometimes when certified copy is not filed it becomes almost impossible for the Court to understand that what is written in the original or in the certified copy. 10. In my opinion in a case like present and in all cases where the certified copies are required to be filed, one cannot taken the shelter under Sub-rule (2) of Rule 4 of Chapter III of the Patna High Court Rules. 11. Undisputedly sec. 10. In my opinion in a case like present and in all cases where the certified copies are required to be filed, one cannot taken the shelter under Sub-rule (2) of Rule 4 of Chapter III of the Patna High Court Rules. 11. Undisputedly sec. 4 of the Court Fees Act, 1870 provides that 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 of the said High Courts in any case coming before such Court in the exercise of its Extraordinary Original Civil Jurisdiction; or in the exercise of its Extraordinary Original Criminal Jurisdiction. The same is the law in relation to the Appellate Jurisdiction of the High Court so also in relation to the Courts of Reference and Revision. Item No. 8 of Schedule I provides that when copy of any revenue or judicial proceeding or order not otherwise provided for by this Act or copy of any account, statement, report or the like, taken out of any Civil or Criminal or Revenue Court or Office of any Chief Officer charged with the executive administration of a Division is filed then for every three hundred and sixty words or fraction thereof, Court fee of Rs. 10.00 is to be paid. If a certified copy is filed then this Court fee cannot be avoided. But when an ordinary copy is filed then this Court fee is avoided which causes loss of revenue to the State. Ordinarily the Court Fees Act is to be interpreted in favour of a person who is required to pay the Court fee but when the provisions are specific, unambiguous and are absolutely clear then there is no scope for any further interpretation, Any document as referred in Item No. 8 of Schedule I of the Court Fees Act, 1870 , if is filed in the Court then the Court fee in accordance with the Schedule I has to be paid. 12. I hereby order that in all cases which are filed, the Stamp Reporter-cum-Designated Officer shall see that henceforth the certified copies of all such orders which are under challenge are filed, provided the certified copies can be obtained, and proper Court fee is also paid on the said certified copies. 12. I hereby order that in all cases which are filed, the Stamp Reporter-cum-Designated Officer shall see that henceforth the certified copies of all such orders which are under challenge are filed, provided the certified copies can be obtained, and proper Court fee is also paid on the said certified copies. In matter where the Notifications, Acts, validity of the Acts, Administrative Orders, Notices etc. are under challenge, the certified copies of the orders cannot be filed, therefore, cases of such nature would certainly be exempted from the scope of this order. 13. The members of the Bar submitted that in number of cases the tribunals or the Administrative Officers or Revenue Officers or the Licensing Authority do not issue the certified copies, therefore, it would become almost impossible for the petitioner and the Counsel to file the certified copy of the impugned order. In the opinion of this Court, this submission should not detain this Court unnecessarily. In a case like that, the Counsel or the party can always file a copy of the application for grant of certified copies or receipt thereof and make a statement in the writ application that the party had applied for the certified copy but the concerned officer either has refused to issue the copy or is not issuing the copy. In such a case this Court may take into consideration the ordinary copy and may require such Officer to show cause to this Court as to why the certified copy was not being issued to the party making the application. 14. Let the learned Counsel for the petitioner file a certified copy of the order impugned along with authentication fee within a period of one week from today. 15. Let the persons shown as Defendants No. 7 to 22 in Annexure-2 be joined as party-respondents. This be done within one week, Issue notice to the Respondent No. 6 and the newly joined respondents. Requisites etc, must be filed within one week under ordinary process. 16. Trial of the Election Petition may continue but the Election Tribunal shall not pass any final order in the matter until further orders from the Court. 17. Let a copy of this order be sent to the Stamp Reporters Section of the Court for its strict compliance and be also supplied to the learned Counsel for the State Mr. A.K. Singh.