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5, the respondent was not heard. Section 307 (2) specifically prohibits the Judge, when be considers it necessary to submit the case by way of reference to the High Court, from recording any judgment of acquittal or of conviction on any of the charges on which the accused had been tried. We cannot accept the submission of the learned Counsel for the appellants that the action of the Judge in recording a judgment is a mere irregularity.
It is conceded that the question of court fees must be considered in the light of the allegations made in the plaint and its decision cannot be influenced either by the pleas in the 131 1032 written statement or by the final decision of the suit on the merits. The words "with the case so submitted" make it quite clear that a reference under s. Normally the dispute between the litigant and the Registry in respect of court fees arises at the initial stage of the presentation of the plaint or the Advocates (try what he says) appeal and the defendant or the respondent is usually not interested in such a dispute unless the question of payment of court fees involves also the question of jurisdiction of the court either to try the suit or to entertain the appeal.
But before the High Court could exercise the powers conferred on it under s. This was, in our opinion, a condition precedent to the exercise of such power by the High Court. Indeed, in the present case the Judge having accepted the jury's verdict and having recorded a judgment of acquittal under s. On the other hand, on behalf of the IntervenerAdvocate- General of Madras as well as on behalf of the respondent, it was sought to be urged before us that both the plaint and the memorandum of appeal ought to be valued for the purposes of payment of court fees under s.
307(3) as the reference made thereafter is not of the entire case with respect to the accused. The argument, however, is that if all the material allegations contained in the plaint are fairly construed and taken as a whole it would appear that the plaintiff has been ousted from the enjoyment of the properties in suit and his claim for partition in substance is a claim for possession of . 307(3), it was necessary for it to consider the entire evidence in the case, which obviously it could not do if the trial judge had already recorded a judgment.
Having heard the learned counsel for the appellants and the learned counsel for the respondent State and having bestowed our serious consideration to the materials placed before us and the judgments of the Trial Court and that of the High Court, we are convinced that no interference is called for with the impugned judgment. By recording a judgment the trial Judge prevents the High Court from properly exercising its powers under s. -1 Rameshwar Lal who was the previous owner of the property from whom the plaintiff purchased the said property.
307(2) and the judgment so recorded is illegal. Section 307(3) provides for the powers which the High Court may exercise in dealing with the case so submitted and it enjoins that although the High Court may exercise any of the powers conferred on it, when hearing an appeal, it should consider the entire evidence and after giving due weight to the opinion of the Sessions Judge and the jury, either convict or acquit the accused of any offence for which he was tried, and if it convicted him of an offence for which the jury should have convicted him, pass such sentence as might have been passed by the Court of Session.
This appears to us to be clearly the effect of the provisions of ss. In our opinion, the decision of the Division Bench of the Madras High Court that the memorandum of appeal should be taxed for the purposes of court fee under s. There is no doubt that the question about the adequacy of the court fees leviable on the appellant's memorandum of appeal was properly referred by the Master to the learned Chief Justice of the Madras High Court and has been decided by the Division Bench of the said High Court in pursuance of the requisite order made by the Chief Justice in that behalf.
This prohibition is mandatory and a Judge, who records a judgment of acquittal or of conviction on an of the charges on which the accused had been 966 tried, contravenes the provisions of s. In order that the High Court may be in a position to properly exercise its powers under s. 307(3) it was necessary that the reference under s. It may be that when the Division Bench of the Madras High Court considered this matter under reference made by the Master under s.
306 and 307 when read together. 307 should have been according to law. 7(iv)(b) of the Act is final under the provisions of s. On the contrary, it has relied upon the statement of P. 304/149, Indian Penal Code, in the case of each accused, took it out of the hands of the High Court to deal with the case of each accused with Advocates (try what he says) re- ference to the other charges framed against him. The question about proper court fees leviable on plaints in which Hindu plaintiffs make claims Advocates - try what he says - for partition under varying circumstances has given rise to several conflicting decisions in the High Courts of India.
7(v) would apply to the present suit or whether the present suit would fall under s. We are, however, not called upon to consider the point as to whether s. 307(1) must be of the whole case against the accused and not a part of it. In the considered opinion of this Court, such finding in the statement of the plaintiff cannot be treated to be trustworthy or in consonance with law. the suit properties and as such falls within the provisions of a.
The Advocates [view website] trial court was under obligation to draw adverse inference for the non-appearance of the plaintiff in the witness-box. 5 of the Act and it cannot be reopened at this stage.
