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Judgment
K. Subba Rao, C.J.—These two applications have been referred to this Court for its opinion in regard to the court fee payable on applications filed under Sections 9 and 13 of the Hindu Marriage Act 1955.
The relevant portion of these sections read :
SECTION 9:
When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party in apply, by petition to the district court for res(sic)tution of conjugal rights.
SECTION 13 :
(1) Any marriage solemnised, whether befo(sic) or after the commencement of this Act may a petition presented by either the husband or t(sic) wife, be dissolved by a decree of divorce on the ground that the other party
(i) is living in adultery.
Under the aforesaid two sections, the liefs provided thereunder could be obtained filing a petition. Schedule II, Art. 1 of the Hyderabad Court Fees Act provides for an application thus :
Application: Sub Court, Sessions Court Darul Qaza Court and all other civil courts high in rank than the Munsif''s Court but lower than the Sub Court, District Taluqdar and Controllor General of accounts and Audit w(sic) application is made for decision of disputes.
One rupee
The application for divorce was filed the City Civil Court, Hyderabad and the ot(sic) was presented to the District and Sessions Co Nalgonda. As the second petition was filed the Sessions Court, Nalgonda, there win not any dififculty in holding that court fee of Re. should be paid thereon under Schedule II, Ar(sic) of the Hyderabad Court Fees Act.
In the case of the application filed be: the City Civil Court, the question is whether City Civil Court is one of the courts discrimination Col. 2 of the Article. To come under t(sic) Article, it must either be a Sub-Court or a ((sic)Court higher in rank than the Munsif''s C(sic) but lower than the Sub-Court. Sub-Courts abolished some time back and we understand that the present City Civil Court to some ex(sic) takes its place. But, unfortunately the Article wag not amended so as to make it clear tha(sic) takes in all civil courts such as district court and City Civil Court in this State.
But the practice seems to be that the Civil Court has been treated as one of the co(sic) contemplated by that Article and, indeed be us both the learned counsel proceeded on basis that the City Civil Court is one of courts. If go, we do not see any difficulty applying that article also in regard to the application before the City Civil Court for divorce was suggested in the court below that court is payable u/s 13 of the Hyderabad Court Fees Act (VI of 1324) which says : Plaint or memorandum of appeal in every s(sic) where it is not possible to estimate the mon(sic) value and which is not otherwise provided j(sic) by tills Act.
Where the plaint is presented to or the memorandum of appeal is against the decree of
(a) a Munsif''s Court... RS. 1
(b) a District Court or a sub Court or High Court in its original Jurisdiction... Rs. I
This section obviously applies only to a plaintiff a memorandum of appeal in a suit. The application filed in the instant case are not pl(sic) and, therefore, the operation of this section excluded. We hold that the correct ccur(sic) payable on the application made u/s 12 and 13 of the Hindu Marriage Act is Re 1/- (sic) Schedule II Art. 1 of the Hyderabad Court Act.
We answer the reference accordingly.
The petitioner may take appropriate proceedings, if open to him, to recover the excess court fee paid.