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ABOUT THE AUTHOR
Advocate Dr. Rau P S Girwar is an esteemed advocate and has been involved in the field of law since 2010 and has contested cases in the Supreme Court of India and various high courts including the Punjab and Haryana High Court, Delhi High Court, Indore High Court and various district and sessions courts.
He has an excellence and experience in civil, criminal, constitutional and service matters and has a wide range of experiences in various matters including money laundering, narcotic and murder cases.
This article has been written with assistance of his junior Kushaatula Puhanian, who is a second year law-student studying at the Guru Gobind Singh Indraprastha University, New Delhi.
ABSTRACT
Court fees is an important step in litigation and was a concept new to India introduced in the Colonial Era to reduce the false and vexatious litigations that were being filed at that time. This concept has now been embedded in the Indian judicial system and serves as a basis for revenue generation and without which the filing of a litigation cannot be continued. The Court Fees Act, 1870 is the legislation that has been governing the area of court fees since even before independence. This act serves as the basis for court fees while there have been various amendments and repeals made in it as according to the needs and demands of the state. This article helps to understand the meaning of court fees and its difference from costs and also analyses various provisions made in the Court Fees Act, 1870 in detail.
WHAT IS COURT FEES AND HOW IS IT DIFFERENT FROM COSTS?
“Court fees is the fees that is imposed on the litigant to contest a case in the court of law.” It is the fees that is levied upon the people who are seeking judicial remedies by way of a legislation. The first instance of court fees in India was observed by the Regulation 38 of 1795 in the colonial era. What has to be noted is that the court fees not only prevents vexatious litigation but also helps in aiding the economic functions of the court.
“The court fees involves complex and multi-fold management to ensure the disposal of the huge number of pending cases.” The money that is collected by way of court fees is then used for the expenses that are incurred in carrying out the administrative work in the Court. This fees is paid by way of stamps that are attached while filing of cases in the respective courts.
In the case of State of Madras v. Zenith Lamps it was held that the fees collected was the fees for covering the cost of court procedure and it was also held that this fees was strictly not for the States to make revenue.
People sometimes confuse court fees that is taken by virtue of the Courts Fees Act, 1870 with the costs that are imposed by the Court under S. 35 of the Code of Civil Procedure, but these are two different amounts that are taken or imposed under two different circumstances, one for the commencement of hearing i.e. during filing and the other after the hearing is over i.e. after disposal of the case or suit.
Clearing the fog of confusion between the court fees and costs, it can be said that while the court fees is applied while filing of the case as is taken as the fees of better administration, the costs are not mandatory to be paid by all the litigants and they are imposed on those litigations and litigants wherein the Court feels that the Court has no jurisdiction over the matter, the litigation is false and vexatious, or if there is a unreasonable delay during the process of hearing of the case.
The most recent example of difference between the two is the Juhi Chawla’s petition against the roll out of 5G mobile technology. While filing of the case, a certain amount had been paid by Juhi Chawla or her counsel, Deepak Khosla by way of which the fling of the case was completed. After the case came for hearing, the Court found that the claims and the suit and had been filed for publicity, and hence, a fine of ₹ 20 lakhs has been imposed on her. This fine is what is called costs.
HISTORICAL BACKGROUND OF THE COURT FEES ACT, 1870.
The Court Fees Act, 1870 came into existence because of the success of Act XXVI of 1867 that had been created for the rate of stamp fees in the Courts being either of ordinary or of appellate jurisdiction for the High Courts at Fort William, Madras and Bombay. This act had succeeded in reducing the number of litigations in the country to an effective extent in a span of two years and hence, paved way for the Court Fees Act, 1870.
JURISDICTION OF THE ACT
It has to be noted that this act is not exhaustive in nature as can be inferred from the footnotes mentioned under S. 1 of the Act which shows various repeals and amendments that have been brought in this act as according to the changing conditions and needs of every State of India.
This Act makes all documents that have been mentioned in its First and Second Schedule of the Act as chargeable.
Section 4 of the Act talks about all the documents mentioned as chargeable in the High Court when the Court exercises its extraordinary civil jurisdiction, extraordinary criminal jurisdiction, appellate jurisdiction (except in appeals lying from the extraordinary civil jurisdiction, be it single bench or a division bench) and appeals from courts subject to the subordinate jurisdiction of that High Court, and cases that are entertained under the jurisdiction of revision and reference of the Court.
If there is a difference of the fees and checked as paid by the officer and paid by the litigant while in High Court, in such a case, the matter is put forth the taxing officer who is appointed by the Chief Justice of that High Court and if the taxing officer feels the question being of general importance, it is then referred to the Chief Justice of that High Court or a judge appointed for this purpose by the Chief Justice whose decision shall be final. If the same scenario is observed in the Court of Small Causes, then, the matter is put forth the clerk of that Court which he can refer to the first judge of the Court whose decision shall be final.
This act does not only have jurisdiction over Courts but also public offices where any document made as chargeable is annexed, exhibited or recorded in any Court of Justice or furnished by any public officer.
TYPES OF COURT FEES
The two kinds of fees that have been defined in the Court Fees Act are:
- AD VALOREM FEES: this has been described in the Schedule 1 of the act. It means “according to valuation.” “Ad valorem duties are always estimated at a certain per cent, on the valuation of the property as opposed to fixed or specific duties.”
- FIXED OR SPECIFIC COURT FEES: this has been described in Schedule 2 of the act. “When the court fee is the fee paid as according to the prescribed amount fees that has been fixed by the Government.”
EXEMPTION FOR CERTAIN DOCUMENTS
Section 19 of the Act talks about certain documents that are exempted from charges or court fees. These documents are:-
- “Power of attorney to institute or defend a suit when executed by any member of the Armed Forces of the Union not in civil employment.”
2. “Written statements called for by the Court after the first hearing of a suit.”
3. “Plaints and processes in suits before the District Panchayats in the same residency.”
4. “Application or petition to a collector or other officer making a settlement of land revenue, or to a Board of Revenue, or a Commissioner of Revenue, relating to matters connected with the assessment of land or the ascertainment of rights thereto or interests therein, if presented previous to the final confirmation of such settlement.”
5. “Application for service of relinquishment of land or of enhancement of rent.”
6. “First application for the summons of witness to other persons to attend either to give evidence or produce a document in respect of the production of filing of an exhibit not being an affidavit made for the immediate purpose of being produced before the Court.”
7. “Bail bonds in criminal cases, recognizances to prosecutor give evidence, and recognizances for personal appearance or otherwise.”
8. “Petition by a prisoner, or other person in duress or under restraint of any Court or its officers.”
9. “Complaint of a public servant, a municipal officer, or an officer or servant of a railway company.”
10.“Application for permission to cut timber in Government forests, or otherwise relating to such forests.”
11.“Application for the payment of money due by the Government to the applicant.”
12.“Applications for compensation under any law for the time being in force relating to the acquisition of property for public purposes.”
13.The Orissa government had passed a litigation in 1994 by way of which all the women, regardless of nationality or status, are exempted from paying the Court fees with respect to litigation in the state which had also been clarified by the Orissa High Court in the case of Sanjay Kumar Das v. Munmun Patnaik and Ors.
14.“Wherein proper fees has not been for the filing or exhibition of documents in a criminal court, but in the opinion of the presiding judge, it is necessary to prevent the failure of justice, S. 4 and S. 6 of the act, which talk about non acceptance of documents mentioned as chargeable in Schedule 1 of the act without court fees, would not act as a limitation for the same.”
REFUND OF FEES
There are circumstances where, though the fees cannot be exempted but can be refunded. This provision has been provided by S. 13 to S. 16 of the Act. What has to be noted is that these refunds are only possible after a certificate has been issued by the Court which thereafter, is presented before the Collector for the refund of the Court Fees.
Section 13 of the act talks about the refund of fees that has been paid on memorandum of appeal after a plaint has been rejected by the Lower Court on grounds mentioned in the Civil Procedure Code, and has been ordered to be received, or if the suit has been remanded in appeal on the grounds mentioned u/s 351 CPC for a second decision by the lower court, the appellate court would grant the appellant the certificate on the basis of which refund can be initiated after presenting the same to the Collector.
Section 14 of the act talks about the refund of fee on application of review of judgment which has been presented on or after the 19th day from the date of the decree, unless such delay had been caused by the aches on the appellant’s side. In such a case, the refund for the excess fee i.e. compared to the day before the limitation can be refunded after the presentation of certificate issued by the Court to the Collector.
Section 15 of the act talks about refund of fee after the review of a judgment has been admitted, which on rehearing is reversed or modified from the impugned order only on the ground of mistake of fact or law.
What has to be noted is that the only ground of reversal or modification should be mistake of fact or law but not any other.
Section 16 of the act provides for the refund of fees in case of settlement of disputes outside the Court i.e. by way of arbitration, conciliation, judicial settlement including Lok Adalat and mediation. This section provides for all those methods of alternative redressal of disputes as has been provided by S. 89 of the Civil Procedure Code, 1870.
Apart from the refund measures provided in the act, there are various other refund measures by way of which the litigant who are not able to pay charges for litigation can still continue their litigation or file for litigation. These measures have been provided in various acts who provisions relating to the same have been mentioned below:-
1. Suit filed with forma pauperis under Order XXXIII of Code of Civil Procedure: This provision provides for exemption of court fees or fees payable for service of process from the indigent person or forma pauperis as defined by O. XXXIII R. 1 of CPC if the application for the same has been admitted by the Court. “An indigent person is the one who does not possess sufficient means to enable him to pay the fees prescribed by law for the plaint in each suit.”
Even those people who are eligible for legal aid and have been mentioned under S. 12 of the NALSA Act can also file an application for suit filed under Order XXXIII of the CPC in order to avail the exemption from court fees for being an indigent person, though it remains a discretion of the Court to decide where to consider the person or not.
2. Section 35 of Court Fees Act, 1870: This section provides for remission or reduction of fees by way of separate acts or amendment as made by the Centre and State Government from time to time to match the conditions and needs of the people.
Such a legislation was made in Orissa in 1994 wherein immunity from court fees had been given to a women with respect to litigations in the State.
MODE OF LEVYING FEES
Stamps are extremely essential when it comes to court fees as they are the only way to confirm that the fees has been paid. “The stamps are mandatory in the Court to the extent that any document without stamps or proper stamping cannot be filed or acted upon in any proceeding in any Court or office until the stamp has been cancelled.”
Chapter V of the act talks about the mode of levying fees. All the fees under this act, whether processing fees or court fees has to be paid by way of stamps. these stamps can be of four types:
a. Impressed stamps.
b. Adhesive stamps.
c. Partly impressed stamps.
d. Partly adhesive stamps.
These stamps are used as has been directed by the Government from time- to-time. As in the case of high courts, the rules for supply, number and renewal of stamps come under the concurrence of the Chief Justice of the High Court.
It is to be noted that proper stamping is necessary for its consideration as court fees. If by mistake or inadvertency, the presiding judge can order for proper stamping of the document for the continuation of proceedings considering that it had been properly stamped at the very first instance.
However, a fresh stamp is not required in cases where there are amendments made in the documents in order to correct a mistake matching the original intention of the parties.
COMPUTATION OF FEES PAYABLE IN CERTAIN SUITS
There are various suits that are filed for litigation and every suit has a different way of computation of fees which has been described u/s 7 of the Court Fees Act, 1870.
- SUITS FOR MONEY: “in suits for money (including suits for damages or compensation, or arrears of maintenance, of annuities, or of other sums payable periodically) the court fees would be as according to the amount claimed.”
SUITS FOR MAINTENANCE AND ANNUITIES: “in suits for maintenance or annuities or other sums payable periodically, the court fees would be charged as according to the value of the subject-matter of the suit, and such value is deemed to be ten times the amount claimed to be payable in one year.”
1. SUITS FOR OTHER MOVABLE PROPERTY HAVING A MARKET VALUE: “in suits for other movable property other tan money, where the subject matter has market value, the court fees charged would be as according to the market value of the subject matter as was at the date of presenting of the plaint.”
2. SUITS FOR MOVABLE PROPERTY OF NO MARKET VALUE: “for movable property where the subject-matter has no market value, where the case is for enforcement of the right to share in any property, on the ground that it is a joint family property” , “or to obtain a declaratory decree or order where consequential relief is prayed” , “or it is a suit to obtain injunction” , “or it is for a right to some benefit arising out of land” , “or for accounts” , the fees to be paid would be as according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. It is necessary for the plaintiff to mention the amount at which the relief is valued at in the plaint.
3. SUITS FOR POSSESSION OF LANDS, HOUSES OR GARDENS: in suits for possession of lands, houses or gardens, the fees that has to be paid would be according to the value of the subject matter for which separate provisions have been provided under S. 7 of the act.
“When the subject matter of the suit is land, and it forms an entire estate, or a definite share of estate, paying annual revenue to the government, or forms a part of estate and is recorded in the Collector’s register as a separately assessed with such revenue, and such revenue if permanently settled, the court fees is ten times the revenue so payable.”
“When the subject matter is a house or garden, the court fee would be as according to the market value of the house or garden.” “For enforcement of the rights of pre-emption, the value of the land, house or garden decides the court fee.”
“If the suit is for setting aside of attachment of land or of an interest in land or revenue, the fee would be as according to the amount for which the land or interest was attached.” “If there is a scenario where the amount exceeds the value of land or interest, the fee would be as if the suit were a suit for possession of such land or interest.”
“In case of a suit for specific performance, of a contract or sale, the fee would be as according to the amount of the consideration.” “For suit for specific performance of contract of mortgage, the fee would be as according to the amount agreed to be secured.” “Where the suit has been filed for specific performance of contract of lease, the fee would be as according to the aggregate amount of fine or premium and rent agreed to be paid during the first year.” “For a suit filed for specific performance of a reward, the fee would be as according to the amount or value of the property in dispute.”
“If the suit has been filed between the landlord and the tenant, the fee would be as according to the suit which refers, payable for the next year before the date of presenting the plaint.”
4. MEMORANDUM OF APPEAL AGAINST ORDER RELATING TO COMPENSATION: “the fees charged would as according to the difference between the amount awarded and the amount claimed by the appellant.”
COURT FEES IN PROBATES, LETTERS OF ADMINISTRATION AND CERTIFICATES OF ADMINISTRATION.
This chapter i.e. Chapter III A had been added as an amendment in 1875. “Probates are defined as a copy of will certified under the seal of court of competent jurisdiction with the grant of administration of the estate the testator.”
A certain amount of fee has to be paid for the probation of the will which serves as a court fee. But, there are certain circumstances where the fees paid is either too high or too less and provisions for the same have been provided u/s 19A and 19E of the act. “If the fee paid is much more than what the value of the property was which is ascertained within six months of applying for probate or letter of administration, such person produces the probate or letters to the Chief Controlling Revenue authority in which the probate or letters have been granted.” Once this has been done, the authority can, if satisfied cancel the stamp, substitute another for denoting the court fee which should have been paid or make an allowance for the difference between the two.
If a lesser sum has been paid by mistake, and the same is discovered within six months but the full fees is still not paid by the executor of the will to the authorities, he shall be liable to forfeiture of ₹ 1,000/- and with an interest of 10% on the sum that had to be paid as proper court fees.
In case the debts of the deceased have been paid after the probate of the will, the court fee would be reduced in way of return with the difference of the fee paid and the fee after payment of debts within three years. The time period plays an important role in deciding the court fee in S. 19B of the act. This however carries an exception as well wherein the debts were not paid within three years due to legal proceeding.
“Once a grant has been paid for the whole property belonging to an estate, there is no need for payment of fees once again under the act for whole or any part of the same property belonging to the same estate.”
There is a specified procedure for notice of applications for probate or letters of administration that has been mentioned u/s 19 H of the act. “While in case of any Court other than High Court the notice of application is sent to the Collector, the same is sent to the Chief Controlling Revenue authority in case of High Court.”
COURT FEES IN MULTIFARIOUS SUITS
Multifarious suits are those which involves more than one subject matters which are distinct from one another. “These are lawsuits with various causes of actions are improperly joined together in the same suit.”
A special provision has been made for multifarious suit as has been mentioned u/s 17 of the act. “The fees charged on such suits would be the aggregate amount of fees to which the plaints or memorandum of appeal in suits embracing separately each of such subjects would be liable.”
This means that the fees to be paid would be the total of the fees that had to be paid as if the suit had been filed separately for each distinct subject matter.