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Narasimham, J.—These C. R. Ps. raise a somewhat ticklish question whether the Court-fee is payable on amounts deposited towards future mesne profits and drawn out by the plaintiff under orders of Court, relating to which a decree for future profits has not been passed.
The relevant facts giving rise to this question are these: The suits. O. S. 219 of 1946 and 354 of 1946 were filed in the Court of the district Munsif, Tanuku. for ejectment of the tenants after due determination of their tenancy and for recovery of past rents and future profits. The suits were decreed for possession and for rents already accrued due and an enquiry was directed in respect of future mesne profits under Order 20 Rule 12a C. P. C.
The defendants carried the matter in appeal and in further second appeal. It would also appear that the appeals to the Supreme Court were filed by special leave.
During the pendency of the second appeals in the High Court of Madras, the defendants-tenants obtained orders of stay of delivery of possession subject to the condition that they deposited certain amounts towards future profits. The plaintiffs were given, liberty to draw those amounts deposited without furnishing security. It would appear that the amounts were deposited-it would not be necessary to set out the actual amounts - and were drawn out by the plaintiffs without any objection. It would appear in the Supreme Court also they obtained similar orders during the pendency of the appeals. Pursuant thereto, the amounts were deposited and withdrawn by the plaintiffs without any objection.
While so, it would appear that during an annual inspection of the Court of the District Munsif, Tanuku by the District Judge on 9-12-1957, the District Judge had occasion to go through some of the records and that on noticing the withdrawal of the amounts deposited by the defendants, he issued administrative instructions that Court-fee should be collected on the amounts withdrawn by the plaintiffs towards mesne profits. The District Munsif passed on these directions of the learned District Judge for compliance to the parties whereupon they would appear to have filed petitions I. A. No 106 of 1958 in O. S. No. 219 of 1946 and I. A. No. 107 of 1958 in O. S. No. 354 of 1946 u/s 151 C. P. C for the issue of directions that no Court-fee need be collected in respect of the amounts drawn under the orders of the High Court and the Supreme Court during the pendency of the second appeals and the appeals by special leave.
The learned Munsif passed rather a cryptic order on these petitions. It is sufficient to extract the order in I. A. No. 106 of 1958:
As the payment of Court-fees in these matters is incidental to the payment of amounts as per the orders of the Supreme Court, the petitioner is directed to get the position clarified by the Supreme Court. Petition closed.
Similar order was passed in I. A. No. 107 of 1958. It is against these orders that the present revisions are preferred by plaintiffs.
In support of these revisions, Sri Krishna murthy has argued that Court-fee is not payable unless expressly provided under the Court-fees Act and that directions for the payment of Court-fee as such are unwarranted. He submits that as yet there is no decree with regard to the future mesne profits and that an enquiry under Order 20 Rule 12 C. P. C would be consequential on the disposal of the appeals by the Supreme Court of India which are pending. He submits that the Court fee questions with regard to these matters have to be decided with reference to the Court-fees Act, 1870 (Act VII of 1870) as amended in Madras and that S. 11 in so far as it relates to Court-fee payable in respect of mesne profits provides thus:
11 . . .
Where a decree directs an inquiry as to mesne profits from the institution of the suit, and a final decree is passed in accordance with the result of such inquiry, the decree shall not be executed until such fee is paid as would have been payable on the amount claimed in execution if a separate suit had been instituted therefor.
Placing reliance on the express provisions of the section, he argues that the present case is not covered by the said provision. He further submits that in the absence of any specific provision, the party cannot be directed to pay the Court-fee under a fiscal enactment which has to be construed strictly and in favour of the subject.
With reference to this aspect of the matter, the learned Government Pleader seeks to call in aid S. 41 of the Andhra Court Fees and Suits Valuation Act, 1956 which has come into effect from 1st May 1956. He argues on the supposition that this section has retrospective operation in the view that it is merely a rule of procedure.
In support of the premises on which he advanced the argument, he relies on an exposition of the legal position in Craies Statute Law, Fifth Edition (1952) at page 371, which is in these words:
It is perfectly settled that if the Legislature forms a new procedure, that, Instead of proceeding In this form or that, you should proceed in another and a different way, clearly thereby gone transactions are to be sued for and enforced according to the new procedure. Alterations in the form of procedure are always retrospective, unless there, is some good reason or other why they should not be.
He also cites a passage from the American Corpus Juris. Vol. 59 (1932) Art. 700 page 1173- There, under the caption "Statutes relating to remedies and procedure", the following occurs:
A difference is recognised between statutes affecting substantial rights and those affecting only procedure, the courts being more liberal in the interpretation relative to retrospective operation in the latter than in the former case. The general rule that statutes will be construed to be prospective only and not retrospective Or retroactive ordinarily does not apply to statutes affecting remedy or procedure, or, as is otherwise stated such general rule is subject to an exception in the case of a statute relating to remedies or procedure.
He has also cited certain English cases bearing on the application of procedural law and in particular James Gardner v. Edward A Lucas, 1878 3 AC 582 where it was stated thus at page 603:
Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be''''.
I am not inclined to view these suppositions as correct, viz., that Court-fees Act is mere procedural law and that the Act of 1956 was designed to have retrospective operation.
Section 79 of the Andhra Court Fees and Suits Valuation Act, 1956, hereinafter to be referred to as the Act of 1956, is a repeal and saving section, sub-clause (2) whereof is relevant:
All suits and proceedings institutes before the commencement of this Act and all proceedings by way of appeal, revision or otherwise arising therefrom, whether instituted before or alter such commencement, shall, notwithstanding the repeal of the Court-fees Act, 1870 (Central Act VII of 1870) and the Suits Valuation Act, 1887 (Central Act VII of 1887), be governed by the provisions of the said Acts and the rules made thereunder.
This is a saving clause which provides expressly that the Act shall not apply to the suits or proceedings instituted before the commencement of the Act, i.e., 1-5-1956. The Act is to have no application to any proceedings by way of appeal, revision, or otherwise arising from suits or proceedings instituted prior to the Act.
The suppositions of the learned Government pleader that the Act could be given retrospective operations runs counter to the express statute and cannot possibly be acceded to.
Nor can it be summarised with any plausibility that the Court-fees Act, which is primarily a fiscal enactment, is a mere rule of procedure or form of procedure. If the premises cannot be accepted, the argument built on the said premises cannot be acceded to.
Sri Krishnamurthy''s contention that it is a fiscal enactment and there cannot be a levy without any express provisions, seems to be supported by consensus of judicial authority.
He has invited my attention to the weighty pronouncement in this regard from English cases as well as the decisions of the Indian High Courts. The lucidity with which the propositions are expounded in these decisions is inimitable and are better quoted than condensed.
In Partington v. Attorney General, (1869) LR 4 HL 100 Lord Cairns, expounding the principle of fiscal legislation, stated thus:
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 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
This was quoted with approval by Lord Russel in Inland Revenue Commissioner v. Duke of Westminster, 1935 All ER 259 at p 270. The learned Lord added that:
The subject is not taxable by inference or by analogy, but only by the plain words of a statute applicable to the facts and circumstances of his case''''.
To the same effect are the observations in Lord Bray Brooke v. Attorney General, (1861) 9 HL C 150 at p. 179 and Brunton v. Acting Commissioner of Stamp Duties for the State of New South Wales, 1913 AC 747 at p. 760.
With regard to the Indian decisions relied on, those in point are T.S. Ramaswami Aiyar and Another Vs. M.A. Rangaswami Aiyar, where it was observed at page 687 thus:
The Court Fees Act being a fiscal enactment has to be construed according to well-known rules of interpretation. The Courts are not entitled to strain the wordings of the Court-fees Act with a view to tax the subject. It may be that the present is a case of omission. If that is so, it is not a matter for the Courts but one for the Legislature.
In Kalliappa Goundan Vs. Kandaswami Goundan, it was observed at page 499 that,
The Court-fees Act is a taxing statute and it is settled law that the intention to impose a charge upon the subject must be shown by clear and unequivocal language.
The Supreme Court had occasion to remark about the scope of taxing legislation in Commissioner of Sales Tax, Uttar Pradesh Vs. The Modi Sugar Mills Ltd., . In that case they were addressing themselves to the provisions of the Sales Tax Act but in principle they would, apply to other taxing statutes.
The following are the pertinent observations at page 1051:
''''In interpreting a taxing statute, equitable considerations are entirely out of place. Nor can taxing statutes be interpreted on any presumptions or assumptions. The Court must look squarely at the words of the statute and interpret them. It must interpret a taxing Statute in the light of what is clearly expressed; it cannot imply anything which is not expressed; it cannot import provisions in the statutes so as to supply any assumed deficiency.
It is manifest that there is clear authority for the position contended for by Sri Krishnamurthy that in the absence of an express statutory provision in the Court Fees Act of 1870, as amended in Madras, which governs these cases, there cannot be any imposition of Court fee.
The learned Government Pleader has invited my attention to a Division Bench ruling of this Court in Kudapa Suhbanna, In re, In Re: Kudappa Subbamma where the learned Chief Justice had to scrutinise the provisions of S. 11 of the Court Fees Act of 1870. At page 904 the following are his observations about S. 11 of the Court-fees Act:
These provisions, in terms as well as in substance, provide for Court-fee payable in a suit for past and future mesne profits and the stages at which they are payable. There appears to be a lacuna in the scheme from the standpoint of the State-exchequer. A party, who obtains a decree for future mesne profits in the first instance, or, in whose favour a decree for future mesne profits is made on enquiry, can evade payment of Court-fee if he chooses not to execute the decree, or, if the decree is satisfied outside the Court. But, that need not detain us as nothing turns upon that in the present case.
The learned Government Pleader relies on these observations, which seem to be obiter, to lend support to his argument that S. 11 could be interpreted in a way as to give no scope for evasion. It is by projecting this concept that lie argues for the position that the levy of Court-fee is a form of procedure.
It seems to me that this approach is just what was interdicted by a consistent line of judicial authority. In my opinion, I have not the least doubt that I have to accept Sri Krinshnamurthy''s argument that in the absence of an express provision, court-fee cannot be collected.
Sri Sankara Rao, seeks to present his case for the levy of Court-fee on an alternative footing to wit that as deposits were made and withdrawn by consent of parties, that would be equivalent to an ascertainment of profits under Order 20. Rule 12 C P C. and that they would attract S. 11 in its relevant part. The relevant part has been extracted supra in my judgment and need not be reiterated. But, suffice it to say that even on the assumption that there was consent in the matter of the quantum of profits deposited as and for future mesne profits, the relevant provision cannot take in these amounts as it expressly limits the imposition of Court-fee to decrees for mesne profits in the process of execution. Here, as has been indicated, there has yet to be a full-dress enquiry under Order 20 Rule 12 and a decree pursuant thereto. The assumption for this alternative argument seems to be altogether slippery and fallacious.
The learned District Munsif''s orders cannot therefore be supported. These revisions are allowed and the directions for the payment of the court-fee are annulled. There will be no order as to costs.
In this case, I have had very good assistance from the learned counsel and I fix the Government Pleader''s fee at Rs. 100/-. The petitioners need not pay that fee.