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2013 DIGILAW 2032 (ALL)

Rahul Sharma v. Laxita Sharma

2013-08-05

PANKAJ MITHAL

body2013
Pankaj Mithal,J.:- This is an appeal under Section 28 of the Hindu Marriage Act, 1955 against the order of the court below passed under Section 25/27 of the Act granting permanent alimony of Rs.5 lacs to the wife while decreeing her suit for divorce. 2. The appellant has paid court fees of Rs.38/- on the memo of appeal. The Stamp Reporter reported deficiency of Rs.37,869.50 in payment of court fees. On the objection preferred by the counsel for the appellant against the above report, the matter was referred to the Taxing Officer, who in view of the Full Bench decision in the case of Darbari Lal Vs. Smt. Dharamwati AIR 1956 All. 541 (F.B.) over ruled the objections and directed for making good the deficiency in court fees. 3. The court fees has not been made good. 4. Counsel for the appellant submits that the order of the Taxing Officer is illegal and he has not taken into consideration the amended provisions of the Court Fees Act, 1870. 5. Article 21A of Schedule II to the Court Fees Act, 1870 added vide U.P. Act No.44 of 1958 and amended vide U.P. Act 4 of 1961 provides for court fees of Rs.37.50 only on any application, petition or memorandum under the Special Marriage Act, 1954 or the Hindu Marriage Act, 1955. 6. In view of the above provisions of the Act as applicable to the State of U.P. the decision in the case of Darbari Lal (Supra) prima facie would not be attracted as it relates to the position which stood prior to the addition of Article 21A to Schedule II of the Court Fees Act but the question is about the form for disputing the correctness of the order of the Taxing Officer dated 22.7.2013. 7. Section 5 of the Court Fees Act does not provide or confer jurisdiction upon the Judge of the court, who is seized with the appeal or the matter to rule about the sufficiency or insufficiency of court fee or to decide about the validity of the order of the taxing officer and rather provides that the decision of the taxing officer shall be final except where it is referred to the Chief Justice. 8. In Smt. Gindori Bibi Vs. 8. In Smt. Gindori Bibi Vs. Taxing Officer and others AIR 1973 U.P. 490 a Full Bench of this court considering the provisions of Section 5 of the Court Fees Act ruled that the High Court in exercise of writ jurisdiction can quash the decision of the Taxing Officer by issuing a writ of certiorari and command him to re-examine the matter. 9. In Shyam Singh and others Vs. Meerut Mandal Vikas Nigam, Meerut and others AIR 1998 All. 127 a Division Bench of this court held that in view of Section 5 of the Court Fees Act, the decision given by the Taxing Officer shall be final subject to one exception where he himself forms opinion that the question is of general importance and refers the question for the final decision of the Chief Justice of the High Court and therefore, it cannot be reviewed by the Single Judge. 10. In Track Parts of India Mazdoor Sabha Vs. State of U.P. and others AIR 2005 All.77 this question regarding the forum to challenge the order of the Taxing Officer again came up for consideration before this court and it was held that the order passed by the Taxing Officer under Section 5 of the Act is subject to scrutiny by the High Court under Article 226 of the Constitution of India and is otherwise final. 11. In view of above, the only forum available to the appellant to challenge the decision of the Taxing Officer dated 22.7.2013 is by a way of writ petition and not otherwise. 12. The reliance placed by the counsel upon an order of learned Single Judge of this court dated 17.9.2012 passed in Second Appeal Defective No.132 of 2012, Azizuddin Vs. Rashiduddin and another is of no value and assistance. The court therein may have set aside the order of taxing officer as well as the report of the Stamp Reporter with regard to sufficiency/insufficiency of court fee but there the court order was not called upon to address on the forum for challenging the order of the taxing officer. Therefore, it is not a ration on the preposition on the forum available for disputing the correctness of the order of the taxing officer. 13. In view of the aforesaid facts and circumstances, learned counsel for the petitioner has come out with a prayer to allow him reasonable time to do the needful. 14. Therefore, it is not a ration on the preposition on the forum available for disputing the correctness of the order of the taxing officer. 13. In view of the aforesaid facts and circumstances, learned counsel for the petitioner has come out with a prayer to allow him reasonable time to do the needful. 14. As prayed he is allowed two months time either to make good the deficiency in court fees as per the? order of the Taxing Officer dated 22.7.2013 or to challenge the same in the appropriate forum and to press this appeal thereafter. Let the appeal be listed after two months. __________