Court Fees Act, 1870

 

 

Section-8(c)

It appears from the written statement that the contesting defendants took the objection in their written statements that the suit has not been properly valued but no such issue was framed by the trial court, the defendant did not bring it to the notice of the trial court that an issue should be framed as to the valuation of the suit — in revision, cannot be allowed to raise an objection as to valuation of the suit because they slept over the matter after raising the same objection in their written statement. [Para – 18]

Sananda Mohan Barua & Ors. Vs. Niranjan Proshad Barua & Ors 4 BLT (HCD)-187

Court Fees Act, 1870

 

Court Fees
Act, 1870

(VII OF
1870)

 

Section—7(VI-A)

Article—17
(VA) of Schedule II

A
simple suit for partition is to be filed with a fixed court fee under Article
17 (VA) of schedule II of the Court Fees Act when the plaintiff asserts that he
is in possession of the suit property. But when a suit is filed for partition
and for recovery of possession then he is required to pay advalorem court fee
on the value of his share of the suit property under Section 7 (VT-A) of the
Court Fees Act. Even if the plaintiff claims to be in possession of his share
of the suit property but he prays for declaration of his title and partition
then also he is required to pay advalorem court-fee on the value of his share
of the suit property under Section 7 (IV) (C) of the Court-Fees Act.

Mahmudul Huq
and others Vs Nowab Au Chowdhury and ors, 16 BLD (HCD) 195.

 

Sections—7(XI),
8C and 8D

Code of
Civil Procedure, 1908, Order VII Rule 10

Return of
Plaint

Section
7(XI) of the Court-Fees Act provides an objective standard for valuation of a
suit for eviction of a monthly tenant by the landlord. In such a case, the
subjective satisfaction of the plaintiff is of no avail.

Under
Order VII Rule 10 of the Code of Civil Procedure the Court may return a plaint
to the filing Advocate when it finds that he has no jurisdiction, either
pecuniary or otherwise, to entertain and try the suit. A plaint cannot be
returned on the ground of incorrect valuation of the suit or for want of
adequate court fees. If it appears that the suit has not been properly valued
and sufficiently stamped, the Court is required to make an enquiry either by
himself or by any other person appointed by him on that behalf to determine the
correct valuation of the suit in terms of sections 8C and 8D of the Court Fees
Act, The learned Assistant Judge clearly erred in law in returning the plaint
to the filing Advocate ignoring the express provisions of law regulating the return
of the plaint and the valuation of the suit.

Didar
ali  and others Vs. Naziur Rahman, 18
BLD(HCD)269

Ref:
19DLR287(Special Bench)—Cited

 

COURT FEES ACT, 1870

 

COURT FEES ACT, 1870

(VII OF1870)

 

Section 6(2)

Payment of deficit Court fee—Whether the Court is to pass a
penal order by way of notice to comply with Court’s order—While passing an
order to pay the deficit Court fee within a certain time the Court need not
pass a continual or penal order by way of giving notice that in the event of
failure to comply with the Court’s order the memorandum of appeal will be
rejected—Code of Civil Procedure (V of 1908), Ss. 148 and 149.

District Priinaiy Education Q/ficer Vs. Jaynal Abedin and others;
9BLD(HCD,)69

Ref: 52 C.W.N. 684. Section—6

 

Discretion of the Court under section 6 of the Court Fees Act
and sections 148 and 149 of the Code of Civil Procedure, whether is independent
of the proviso to Rule I I of Order 7 of the Code.

Discretion of the Court under section 6 of the Court Fees Act
and sections 148 and 149 of the Code of Civil Procedure is in respect of the
proviso to Rule 11 of Order 7of the Code and it cannot control the provisions
of the discretionary power of the Court and as such the significant provision
of Rule ii of Order7 of the Code of Civil Procedure should be reconciled and
harmonised with the provision of section 6 of the Court Fees Act and sections
148 and 149 of the Code of Civil Procedure. for making a room for reasonable
elasticity to facilitate justice and further its ends—The provisions of Rule I
I of Order 7 is directory and not mandatory—Code of Civil Procedure (V of
1898),Ss. 148 and 149.

Jesmin Ara Begum Vs. Golani Mainuddin; 12 BLD (HCD) 353

Ref: A.I.R. I 936(Cal) 22 I; A.E.R. 1941 (Oudh) 30.Section—7 (VA)

 

Partition suit—Minor
ousted from possession
—His title not extinguished till the lapse of three
years after attainment of majority even though 12 years passed after
dispossession—Suit for partition filed after. one year of attainment of
majority—Suit competent without a prayer for declaration of title—Only
advalorem court-fees is to be paid—Limitation Act (IX of 1908), Ss. 6 and 28,
Art. 144.

Sanjib Kumar Bose and another Vs. Syed Sharnsuddih and anr.; 1 BLD
(AD)311

 

Schedule I, Article 13A
and Schedule II, Article I

Revision before the
District Judge
—By specific provisions in Article I 3A of Schedule I read
with Article I of Schedule II(d)(i)(a) and (b), Court fee is charged at the
rate of Tk. 7/50 or Tk. 1 5/ -as the case may be in the case of an application
under section 115 of the Code of Civil Procedure filed before the High Court
Division—It cannot be contended that the High Court’s power of revisions has
been delegated to the District Judge—This appears to be a new provision as
contained in section 115(2) of the Code of Civil Procedure—The legislation did
not make appropriate provision in the Court—Fees Act in that behalf—This
indicates that it was not intended by the legislature to impose any special fee
on an application for revision before the District Judge under section 115(2)
of the Code of Civil Procedure—Thus it is concluded that the appropriate
court-fee for an application under section 115 (2) of the Code of Civil
Procedure to the District Judge is Tk. 1/- as prescribed by Article of Schedule
II of the Court-fees Act and this is not controlled by Article 13A of the
Schedule I of the Court-Fees Act.—Code of Civil Procedure (V of l908),S.
115(2).

Messrs R. Ahmed and sons Vs. Messrs Eastern Technique and others; JBLD
HCD)67

 

Section—7(v) and(XII)

Court-Fees—Suit for
eviction of licensee— Market value of the property will not determine the value
of the suit for the purpose of jurisdiction and court-fees— The suit will be
governed by Clause (Xii) and not by Clause (V) of Section. 7.

Salahuddin Ahmed Vs. Bangladesh Hotels Ltd; I BLD(HCD)182

Ref: I9DLR 287; 65C.W.N.I; AIR. 1947 (Bom)482;A.I.R. I
927(Pat) 140; 1 5All63; A.I.R. 1949(Cal) 621; 24C.W.N.167; AIR. l950(Pat) 237;
A.I.R.1952 (MB) 123; AIR. 1954 (Cal) 101; A.I.R.l954 (Mad) 200; 63 C.W.N.380;
59 C.W.N.606; A.I.R.l96 (Pat) 308, 64C.W.N.80: I6DLR(SC)169.

Section—7(V)

Subject-matter—’S
ubject-matter’ in section 7(v) refers only to land, buildings or gardens as the
case may be and the suit shall have to be valued according to the market value
of the property in suit for the purpose of court fees where there is no net
profit arising out of the land, building of or garden during the year next
before the date of presenting the plaint.

Salahuddin Ahmed Vs. Bangladesh Hotels Ltd; 1BLD (HCD)182

Ref: 19 LDR 287.

 

Section—7 (iv) (C) 8C
and Article 17(iii) of schedule II

Declaration for getting
back possession from Receiver
—Property attached under section 145 Cr.P.
Code and receiver appointed—Suit for declaration that plaintiff was in
possession till taking over of possession by the receiver and that he was
entitled to get back possession—Possession of receiver is equivalent to
possession by the true owner— Payment of advalorem court-fees not required—Specific
Relief Act (I of 1877), S. 42—Code of Criminal Procedure (V of 1898). S.145

Miah A.M. Noor Vs. Abu
Naser Ahmed; 2BLD (AD) 97

 

Suit for Partition—A
co-sharer is not dispossessed only because he was kept out of
possession—Possession of a co-sharer is possession of all—A co-sharer can claim
title by adverse possession by ousting another cosharer—Such an ouster to
amount to dispossession must be hostile in assertion of sole titleand founded
upon facts—in such a case the plaintiff would be required to ask for possession
on payment of ad valorem court fee— Non-payment of court fee would however be a
mere irregularity entailing no reversal of a decree.

Shashi Kumar Vs. Nagendra Natli; 2BLD (HCD)36

 

Schedule I Article I
and schedule II Article II

Court—fees on memorandum of appeal— Appeal filed against order
rejecting plaint on the ground of lack of jurisdiction of Court— Order of
rejection of plaint amounts to a decree for all purposes—Value of the subject-
matter of appeal is same as the value of the subject-matter of the original
suit—Ad valorem court—fees of the amount paid in original suit should be paid
on memorandum of appeal— Code of Civil Procedure (V of 1908), S2(2)

Md. Basiruddin and
others Vs. Jamiruddin and others; 2BLD(HCD,)201

Ref: I 3DLR836; I 9DLR268; 41 C.W.N. 157; A.I.R. I 929(Pat)61
5; AIR. I 935(Nag)83.

 

Sections—7(iv)(c),
7(v)(a) and 8C Court-Fee
—Court fees to be paid in a suit for declaration
and recovery of possession— Whether Court fee is to be paid on the own
valuation of the suit made by the plaintiff or on the market value of the suit
property—Recovery of possession is dependent upon the declaration that by and
under the impugned kabalas no title was created in favour of the defendant in
the disputed land and the plaintiff’s title to the land was not lost by such
transfer and the prayer for recovery of khas possession is ancillary to the
main relief sought for—The suit not being one for recovcry of khas possession
simpliciter but being one for declaration and recovery of possession—Section
7(iv)(c) of the Court Fees Act and not section 7(v)(a) is attracted—Under
section 8C of the Court Fees Act a Court is empowered toembark upon an enquiry
with regard to the adequacy or inadequacy of the relief valued and to determine
the correct valuation in a suit falling under section 7(iv)(c)—Although the
Court is empowered to hold enquiry as to valuation and revise it in a suit
falling under section 8C, which is an enabling provision where in its opinion
the subject matter of suit is wrongly valued but the Court is not to resort to
such an enquiry and revise the valuation of the relief on the ground that
valuation computed on the basis of the consideration of the kabala is incorrect
and ii should be valued on the basis of market price in a suit where valuation
of the relief sought for is that certain kabalas are without consideration and
ineffective against the plaintiff, if the consideration amount admittedly is
lesser than the market price of the land transferred— In a suit where the
relief is sought for is th certain kabalas are not binding the plaintiff and
for recovery of possession, where the market price of the property is either
more than or equal to the consideration money thee consideration money will be
the object standard for valuing the relief sought for but W the market price is
less, then market prize would be the objective standard for valui the relief
sought for.

Syed Ahined Vs. Keshab Cliandra a# another; 8BLD(HCD)60.

Ref: I3DLR71OPLD 1963 (Dac) 115: DLR 646; 1927(Lah)890; 1914 214
(F.B 1924 Pesh. 4; 1933 Lah. 246: 38C.W.M 589(F.B.); A.1.R. 1920 Cal 205: AIR.
1935 Mad, 346: A.1.R. 1948(CaI)200: AIR. I9 (Cal)506; 41 C.L.J.1330.

 

Article II of Schedule
II

Court Fee—Court fee
payable in an appeal against an order dismissing an application for revocation
of a probate—Whether dvalorem court fee is payable on such app or fixed court
fee—Whether such an apply against dismissal of an application for reaction of
probate is an appeal against order decree—The order passed in a revocation oceeding
is not decree—The court fee payable on memorandum of appeal against an order a
a probate proceeding is governed by Article I I of Schedule—li of the Court Fee
Fixed Court fee and not ad-valorem court is payable on such memorandum of
appeal.

Golak Chaiidra Dey Vs. Niva Rani Guha Roy; 8BLD(HCD)447

Ref: AiR. 1928 (Al1)51; I.L.R.33 (Born) 256; 9 IC. 538.

 

 

Sections—7( III), (IV)
(d) and 8 C

Valuation of suit—Court
fee payable in a suit for mandatory injunction for recovery of movable
property—In determining the nature of suit for the purpose of court fees, the
Court should look to the framing of the suit to find its substance—Where the
real nature of the suit is not a declaratory one but in effect a substantive
relief, the plaintiff must pay ad valorem court fee—On perusal of the plaint
and the written statement if it is found that it is not a suit for simple
injunction, nor for movable property having no market value, it is in substance
a suit for recovery of a launch having a market value and court fees should be
paid accordingly.

M/s. Nawab Askari Jute Mills Ltd. and others Vs. Md. Giasuddin Ahmed,
9BLD (HCD)394

Ref: A.1.R. 1949 (Nag) 368; A.I.R 1952 (M.B.) 196;
A.l.R.l954(M.B.)6; I IDLR57; 22 DLR646; 26DLR82: 29DLR56.

 

Section—7( VIII A)

Deficit Court Fee—Rejection of plaint— Before rejection of
plaint of a suit on the ground of incorrect valuation of the relief or
non-payment of proper and sufficient court fees, the plaintiff must be given
time to correct the valuation of the suit and for payment of deficit court fee.

Ayezuddin Sheik and others Vs. Md. Abdul Kariin Sheikh and others;
IOBLD (HC’D)139

Ref: 22 DLR (SC) 102; A.I.R. 1957(Cal) 242:26 DLR (AD)1; 38
DLR(AD)33.

 

Section—8C

Determination the
valuation of suit
— Where there is objective standard of valuation of a
suit, whether the Court is to hold an enquiry and determine the valuation?.

The Court is to hold an enquiry under section 8C of the Court
Fees Act and deter- mine the valuation of a suit where there is objective
standard of valuation—The objective standard of valuation is the consideration
money of the disputed kabala or market price prevailing at the time of
institution of the suit, which is less.

Ahrned Kabir Vs. Haji Mazahar Ahined and others; I1BLD (HD)431

Ref: 22 DLR 646; 8 BLD6O.

 

Section—8(C)

The Court whether is to hold enquiry and determine the
valuation where there is objective standard of valuation—Whether there is
embargo on the part of the Court to make enquiry in the absence of written
statement?

The Court is to hold an enquiry and determine the valuation
where there is objective standard of valuation of the suit—The objective
standard of valuation is the consideration money of the kabala or market price
prevailing at the time of institution of the suit, which is less.

There is any embargo on the part of the Court to make such
enquiry in the absence of written statement in a suit where the objection has
been raised, regarding valuation of the suit and where objective standard for
valuation is available.

Ahined Kabir Vs. Haji Mazahar Ahrned and others; 12BLD(HCD)166

 

Section—35A

Court Fees—Advalorem
Court fee payable on the valuation of suits, appeals and applications—Where the
valuation exceeds Tk. 2,000/- but does not exceed Tk. 15.000/- the advalorem
Court fee leviable shall be reduced by 15% but where the valuation exceeds Tk.
15,000/- it shall be increased by 15%.

Golam Rabbani Raj Vs. Kasiman Bewa and others; 3BLD(HCD)254

 

Section—35A

Court Fees—Advalorem
Court fees payable on the valuation of suit, appeals and applications—It shall
be increased by 15% — Amendment of Schedule I of the Court Fees Act by Finance
Act, 1981 has not repealed section 35A of the Court Fees Act by implication.

Pubali Bank Vs. Juihas Miah; 3BLD (HCD)255

 

Section—35A and
Schedule I

Court Fees—Levy
of—Whether after the substitution of schedule I of the Court Fees Act in 1981
provision of section 35A of the Court Fees Act providing for reducing or
increasing by 15% of the advalorem court fees is applicable—Section 35A is very
much there in the statute and its provision is not inconsistent with Schedule I
of 1981—It must be acted upon unless it is found that it has been repealed by
necessary implication—But it is a settled law that the Court shall presume
against repeal of a statute by necessary implication—If section 35A is read
along with all the relevant schedules starting from 1960 till 1981 it will be
clear that the intention of the legislature was to super impose the provision
of section 35A upon the amounts of advalorem court fee as shown in the schedule
which may be amended from time to time—Substitution of one law for another
clearly amounts to repeal followed by re-enactment—Section 35A will run along
with the schedule as re-enacted unless any different provision is expressly
made in the statute.

Sonali Bank, Local Office, Dhaka Vs. Gazi Abdur Rashid and others; 7
BLD (AD)269

Ref: A.I.R. l963(SC) 1961; A.I.R.l970 (SC)164l

 

Section—35A

Interpretation of
statute
—Repeal and reenactment—Whether by amendment and substitution of
Schedule I of the Court Fees Act in 1981 there is repeal and reenactment—
Whether section 8(1) of the General Clauses act will apply—By Finance Act of
1981 Schedule I of Court Fees Act has been amended and substituted in place of
old schedule—Legally it amounts to the same thing as saying that the old
schedule has been repealed and re-enacted with modification—Section 35A of the
Court Fees Act is included and contemplated within the meaning of any other
enactment’—In the instant.case Finance Act of 198 1 or any other law does not
speak of any different intention that reference to schedule I in section 35A
shall not be construed as reference to the re-enacted schedule lof 1981.

Sonali Bank, Local office, Dhaka Vs.Gazi Abdur Rashid and others; 7 BLD
(AD)269

Ref: A.I.R.1944(Bom)259; (1941)2 K.B. 89; I4DLR47. DECLARATION
AND ALTERATION OF MUNICIPALITY RULES, 1987

 

Rules—3 and 4

Declaration of urban
area
—Whether a mere declaration of a rural area to be an urban area by the
Government by notification in the Gazette under section 3(1) of the Paurashava
Ordinance, 1977 does ipso facto make it a Municipality or make it included in
the limits of an existing Municipality by way of extension- “Municipality”
means an urban area, declared to be a Municipality under the Paurashava
Ordinance, 1977—The proviso to sub-section( I) of Section 3 of the Pourashava
Ordinance, 1977 clearly expresses the intention of the legislature by stating
that notwithstanding the declaration of a rural area to be an urban area, it
will continue to be tinder the relevant Union Parishad until the said urban
area is declared to be a Municipality or declared to be included in a
Municipality— Section 4 of the said Ordinance specifically gives the discretion
to the Government to declare or not to declare an urban area, in the prescribed
manner, to be a Municipality or to be included in an existing Municipality
byextending its limits.

Harunar Rashid Vs. Bangladesh, Represented by its Secretary, Ministry
of Local Government and others, 7BLD (HD)254

Ref: 38DLR296-Cited.

 

Court Fees Act, 1870

Court Fees Act, 1870 (VII of 1870)

 

Section-8(c)

It
appears from the written statement that the contesting defendants took the
objection in their written statements that the suit has not been properly
valued but no such issue was framed by the trial court, the defendant did not
bring it to the notice of the trial court that an issue should be framed as to
the valuation of the suit —in revision, cannot be allowed to raise an objection
as to valuation of the suit because they slept over the matter after raising
the same objection in their written statement.

Sananda Mohan Barua
& Ors. Vs. Niranjan Proshad Barua & Ors. 4BLT (HCD)-187

Section-8(c)

Held: we
are of the view that the trial court shall be at liberty to consider the matter
of valuation of the suit property at the time of trial of the suit and shall
pass necessary orders as deemed fit according to law as to payment of Court
fees, if any by the plaintiff.

Md. Saimuddin Vs.
Amjad Ali & Ors 16 BLT (AD) 74.

Sectlons-8-C & 8-D

The
combined effect of sections 8-C and 8-D of the Court Fees Act is that a suit
can be valued in accordance with a revised assessment which may be fixed by the
Court on inquiry. The power to direct such an inquiry is no doubt discretionary
but it is a discretion which must be judicially exercised and there must be
some enquiry either by the court itself or by somebody appointed in this behalf
to enable the court to come to a correct assessment of the valuation of the
suit.

Sola Bibi & Ors. Vs. Amiron Nessa &
Ors 5BLT (HCD)-117.