Damodar Prasad vs Masudan Singh

Jwala Prasad, J.

This is a fiscal Reference by the Taxing Officer u/s 5, Court-fees Act and the question referred to is: Is a memorandum of objection filed under Order 41, Rule 26 liable to the payment of Court-fee. Admittedly there is no express provision in the Court-fees Act making such a memorandum of objection liable to duty. It is said that it is a petition presented to the High Court which would come under Clause (d) of Article 1, Schedule 9, Court-fees Act.

If the memorandum of objection is a petition presented to the High, Court then undoubtedly it could be chargeable. It would be straining the language of the Act to make a memorandum of objection filed under Order 41, Rule 26 synonymous to a petition presented to the High Court. Fiscal statutes have to be construed strictly so far as they impose liability on the subjects. So says Lord Cairns in Partington v. Attorney General [1869] 4 H.L.C. 100:

I am not at all sure that in a case of this kind--a fiscal case--form is not amply sufficient because, as I understand the principle of all fiscal legislation, it is this: If the person sought to be taxed comes within the letter of the law he must be taxed, however great the hardship may appear to the judicial mind to be. On the other hand, if the Crown, seeking to recover the tax, cannot bring the subject within the letter of the law, the subject is free, however apparently within the spirit of the law the case might otherwise appear to be.

No equitable construction is permitted for the purpose of imposing tax upon the subject. The document in question has been expressly described under Order 41, Rule 26, as a "memorandum of objection" to any finding on remand. It could never have been intended by the legislature that such a document should entail a liability upon the parties to pay Court-fees, the only object being to permit them to present their objection to the findings of the Court below upon remand with respect to the issues undetermined by that Court at the first trial. A remand for the purpose of trying and returning findings on issues left undetermined by the Court below pre-supposes that an appeal originally presented to the Court on full Court-fees is still pending and undisposed of and the hearing of the appeal after the receipt of the findings of the Court below is a continuation of the previous hearing. There is no new appeal, no new parties and the Court-fee paid in the first instance for the entertainment of the appeal is sufficient.

No taxation is, therefore, required because a party objects to the new findings of the Court below on the undetermined issues. The omission of a memorandum of objection filed under Order 41, Rule 26 from Section 19, Court-fees Act, is immaterial. It is not by omission but by an express provision that a document can be charged with Court-fee.

I accordingly decide that no Court-fee is chargeable upon the memorandum of objections filed under Order 41, Rule 26. There have been contradictory views taken in some cases by the Taxing Officers of this Court--S.A. No. 1289 of 1923 (Mr. Williams) and F.A. No. 168 of 1920 (Mr. Scroope).