1. The present petitioners in this revision are the defendants in O. S. No. 42 of 1974 on the file of the Subordinate Judge's Court, Rajahmundry. That suit was filed by one Srirama Murthy, now deceased He had executed a registered settlement deed dated 26th August, 1973 with respect to about 7 1/2 acres of wet land situated in Jegurupadu village, Rajahmundry Taluk, in favour of one of his sons by name Atchuta Venkata Subrahmanyam, the first petitioner herein. Subsequently, he filed the aforesaid suit. O. S. 42 of 1974 on the file of the Subordinate Judge, Rajahmundry for cancellation of that settlement deed on the ground that it had been obtained by fraud, coercion, etc., Srirama Murthy, who started this litigation did not live to see the end of it which, in any case, is out of sight. Some time after he had filed the suit, he had died, bequeathing the litigation and his property by a registered will in favour of the present respondents to this revision petition. After the death of Srirama Murthy, these respondents were brought on record as his legal representatives, not before litigating the issue up to this Court. After the present respondents had thus been brought on record as the legal representatives of late Srirama Murthy, they filed an application. I. A. 1280/79, to amend the plaint so as to include in addition to the relief of cancellation of the aforesaid settlement deed, relief of possession of the property covered by the settlement deed from the present petitioners on the ground that the present petitioners had trespassed into the land some time after the suit was filed by Srirama Murthy and before he died. That application for amendment was allowed by the Court below on 24-9-79. Thereafter, the defendants in the suit who are the present petitioners took a plea that the plaintiff must pay additional court-fee on the new relief of possession which he had prayed for through the aforesaid petition in I. A. 1280/79 to amend the plaint. The legal representatives of Srirama Murthy had naturally resisted that application and contended that according to the provisions of the Court-fees Act, they need not pay any additional court-fee on the relief of possession because they said that relief of possession was merely ancillary and consequential to the main relief of cancellation of the settlement-deed. An additional issue was accordingly framed on 29-1-80 -- 'whether plaintiffs are liable to pay additional court-fee on the relief of possession'. When the learned Subordinate Judge took up this six year-old suit for trial, the defendants filed another application in I. A. 1175/80 contending that the aforesaid additional issue relating to court-fee should be tried first before trial of the case was begun under Order 18 of the Code of Civil Procedure. This application of the defendants was dismissed by the lower Court by its order dated 8-10-80 on the ground that the legislative mandate in Section 11(2) of the Court-fees Act would not apply to a Court of unlimited jurisdiction like the Subordinate Judge's Court. It is against this order of the learned Subordinate Judge, the present C. R. P. is filed.
2. Mr. C.P. Sarathy, the learned Counsel for the petitioners contended that when the defendants had raised the plea that the plaintiffs were liable to pay additional court-fee on the subsequent relief of 'possession' and the plaintiffs had denied their liability to pay any additional court-fee, an issue had arisen relating to the liability of the plaintiffs to pay court-fee and the Court having framed an appropriate issue regarding the plaintiff's liability to pay court-fee on this relief went wrong in not trying that issue as a preliminary issue, preliminary to the trial of the main case, as contemplated by Section 11, Sub-section (2) of the Andhra Pradesh Court-fees and Suits Valuation Act, 1956 (the 'Act', for short). On the other hand, Mr. Ramachandra Rao argued for the plaintiffs that Section 11, Sub-section (2) of the Act would not apply to a case before a Court of unlimited jurisdiction. According to him, the question of proper court-fee need not be tried as a preliminary issue, because whatever amount of court-fee it may be that is payable, a Sub Court being a Court of unlimited jurisdiction would not be without power to try the case.
3. The question raised, is of general importance and depends for its answer on the language and intendment of Section 11 of the Act. It is, therefore, necessary to read that Section in full.
'Section 11: Decision as to proper fee:--
(1) (a) In every suit the Court shall, before ordering the plaint to be registered decide on the allegations contained in the plaint and on the materials furnished by the plaintiff the proper fee payable thereon.
(2) Any defendant may plead that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided before the hearing of the suit as contemplated by Order XVIII in the First Schedule to the Code of Civil Procedure, 1908 (Central Act V of 1908). If the Court decides that the subject-matter of the suit is not properly valued or that the fee paid is not sufficient, the Court shall fix a date before which the subject-matter of the suit shall be valued in accordance with the Court's decision and the deficit fee shall be paid. If within the time allowed, the subject-matter of the suit is not valued in accordance with the Court's decision or if the deficit fee is not paid, the plaint shall be rejected and the Court shall pass such order as it deems just regarding costs of the suit.
(3) (a) A Court of Appeal, in which an appeal is filed, may, either of its own motion or on the application of any party, consider the correctness of any order passed by the lower Court regarding the fee payable on the plaint or written statement or in any other proceeding in the lower Court and determine the proper fee payable thereon.
EXPLANATION: The power exercisable by a Court of Appeal under this clause shall be exercisable even if the appeal relates only to a part of the subject-matter of the suit.
(b) If the Court of Appeal decides that the fee paid in the lower Court is not sufficient, the Court shall require the party liable to pay the deficit fee within such time as may be fixed by it.
(c) If the deficit fee is not paid within the time fixed and the default is in respect of a relief which has been dismissed by the lower Court and which the appellant seeks in appeal, the appeal shall be dismissed, but if the default is in respect of a relief which has been decreed by the lower Court, the deficit fee shall be recoverable as if it were an arrear of land revenue.
(d) If the fee paid in the lower Court is in excess of the proper fee, the Court shall direct the refund of the excess to the party who is entitled to it.
(4) Any question relating to the value for the purpose of determining the jurisdiction of Courts shall be heard and decided before the hearing of the suit as contemplated by Order XVIII in the First Schedule to the Code of Civil Procedure, 1908 (Central Act V of 1908).'
4. An analysis of Section 11 shows that Section 11(1)(a) of the Act directs the Court to decide the proper court-fee payable on the plaint before numbering the plaint as a suit. But Clause (1) (b) of that section declares that this decision of the Court under Clause (1) (a) is only provisional and tentative, subject to the several revisions and visions. Section 11(1)(b) which reads, 'the decision of the Court under Clause (a) regarding the proper fee payable shall be subject to review from time to time as occasion requires', provides for these periodic and frequent disputes being raised regarding the proper court-fee payable. The Sub-sections (2) and (3) of Section 11, give an honoured status to the defendants to raise obstructionist questions regarding proper court-fee payable which, if properly employed would not fail to prevent the trial of real and substantive issues in the suit. Sub-section (2) says, questions of proper court-fee raised by defendants shall be tried as preliminary issues. Sub-section (3) empowers the Court of Appeal to issue directions regarding court-fee. Sub-section (4) of Section 11 of the Act deals with the question of pecuniary jurisdiction of the Court. There is no doubt that Section 11 suffers from 'court-fee obsession' and elevates the question of payment of court-fee to a very high pedestal.
5. Now, an overall view of these subsections and more particularly the clear language of Sub-section (2) of Section 11 of the Act, would show that any defendant may raise a plea regarding the proper court-fee payable or a plea regarding the insufficiency of the court-fee already paid. What is more, the Statute in the form of Section 11 Clause (2) of the Act says that thereafter the Court should put all substantive questions aside and try the questions arising on such pleas regarding proper court-fee before taking up of the suit for hearing as contemplated by Order XVIII of the Code of Civil Procedure. Admission into Temple of Justice is strictly restricted by the high tariff walls of the Court-fees Act only to those who can bring court-fee just as admission to temples of Idols is restricted by the Priests only to those who bring offerings. But what is special about the provisions of Section 11 of our Court-fees Act is the primacy it accords to the trial of the issues relating to the court-fee that might be raised by the defendants.
6. The defendants in this case had raised a question of proper court-fee and called upon the Court to try it first. But the lower Court refused to try the court-fee issue so raised on the reasoning that Section 11 Clause (2) of the Act, does not apply to a Court of unlimited jurisdiction, In other words, the lower Court implied that the clear language of Sub-section (2) of Section 11 of the Act deals not with the question of proper valuation and payment of proper court-fee but with the pecuniary jurisdiction of the Court which is separately dealt with under Sub-section (4) of Section 11 of the Act. This is obviously wrong. The lower Court's characterisation of the present dispute regarding the payment of additional court-fee on the relief of possession as not falling within the language of Sub-section (2) of Section 11 of the Act, does not, appear to me to be correct. I cannot, therefore, support the lower Court's refusal to try the question of court-fee raised by the defendants as a preliminary issue on the grounds which the lower Court has given. The language in Sub-section (2) of Section 11 of the Act does not refer to the question of pecuniary jurisdiction at all. It refers only to the question of payment of proper court-fee. Section 11 Clause (2) of the Act does not make any distinction between questions of court-fee involving any pecuniary jurisdiction and questions of court-fee involving payment of proper court-fee and valuation. Pecuniary jurisdiction is dealt with by the Act in Sub-section (4) of Section 11 of the Act. It, therefore, follows that notwithstanding the fact that the Subordinate Judge's Court, Rajahmundry is a Court of unlimited jurisdiction, the language of Sub-section (2) of Section 11 of the Act would apply to the questions before it now raised by the defendants regarding the proper court-fee payable. In other words, the apparent tenor of Section 11, Clause (2) of the Act, cannot be limited to the trial of issues of court-fee as preliminary issues only to questions relating to pecuniary jurisdiction and not relating to the questions of payment of proper court-fee. I, therefore, cannot agree with the argument of the learned Counsel for the respondents advanced in support of the lower Court's order. It is clear to me that the order of the Court below, cannot be supported on the ground that Section 11, Clause (2) does not apply to the Question of proper court-fee.
7. But the question still remains, whether such a question relating to proper court-fee should be tried as a preliminary issue under Section 11, Clause (2) of the Act. Section 11, Clause (2) literally read clearly supports that view. It directs, 'the Court below to try the court-fee issue first.' But, does the essence of this section consist in its apparent language? Is this language to be construed literally as peremptory and mandatory leaving no choice to the Court below to try the court-fee issue as a preliminary issue? These are questions which we have to consider. Consider we must, but not necessarily on the basis of the language used by the Statute but by going beyond the section.
8. In State of Uttar Pradesh v. Manbodhanlal, : (1958)IILLJ273SC , the Supreme Court was considering the question whether the apparently mandatory language of Article 320(3) of the Constitution is also mandatory in content. Article 320(3) of the Constitution reads thus:--
Article 320(3): The Union Public Service Commission or the State Public Service Commission, as the case may be. shall be consulted-
(a) & (b) .....
(c) on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters:
(d) & (e) .....
The Supreme Court held this language to be directory only and gave the following reasons for that. 'It is well known that the question as to whether a Statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other'. Illustrating the factors that should be taken into account in deciding the question whether a statutory provision is mandatory or directory, our Supreme Court in State of U. P. v. Baburam, : 1961CriLJ773 said the following:--
'The Court may consider, inter alia, the nature and design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or the trivial consequences, that flow therefrom, and above all, whether the object of the legislation will be defeated or furthered.' These rules of interpretation are based on the inadequacies inherent in human language where form is not always its essence. It is therefore clear that the peremptory language of Sub-section (2) of Section 11 directing the trial of the court-fee issue as a preliminary issue is not conclusive of the matter. It is no doubt true that the Statute is intended to be followed and not to be disregarded. But, we must remember that the legislature enacts laws against the backdrop of an unwritten assumption that the provisions of a Statute should subserve the interests of justice. Rules of interpretation evolved by the Courts, therefore, give power and impose a duty on the Court to ascertain the true meaning of a Statute. In doing so. the Courts will sometime travel beyond the Statute in the circumstances, some of which have| been illustrated in the above two judgments of the Supreme Court. Negatively speaking therefore, the use of the particular language in an ordinary Statute like the Court-fees Act directing, 'all questions of payment of court-fee shall be decided before the hearing of the suit,' is no more conclusive of its mandatory nature than the language used in a primordial document like the Constitution of India in Article 320 Clause 3, directing consultation with the Public Service Commission. We must ask what is the purpose of this provision in the Court-fees Act and what consequences would flow from holding it to be mandatory. The purpose of the Act is no more than to facilitate the collection of court-fee from the plaintiff. It is surely not to impede the trial of the suit, nor arm the defendant with the deadly obstructionist weaponry that might sometimes be used to protract the trial of a suit endlessly. By not trying the court-fee issue first, the main purpose of the Act which is to facilitate the collection of court-fee is not, in any way, defeated. The disputed court-fee can be ascertained later and collected sooner as arrears of land revenue. On the other hand, by holding such a direction to be mandatory we would only help drive the litigants to engage themselves in barren, but costly battles on inconsequential issues leaving the decisive questions in the litigious war aside undecided. The trial of every preliminary court-fee issue yields an order which leads to a revision. When then is the main suit to be tried and decided? Further, by holding that the language in Section 11 Clause (2) as mandatory, we will be compelled to invalidate the trial of any suit that took place without first trying the issue relating to proper court-fee raised. The trial of a civil suit commenced or concluded without following the direction to try the issue relating to proper court-fee payable by the plaintiff, would be a trial without jurisdiction and would therefore be of no legal consequence. Considering these questions, I am unable to agree with the argument of the revision petitioners that Section 11 Clause (2) is mandatory. If the argument of the revision petitioners is to be accepted, the progress of a civil suit, already delayed, would be further delayed and would be made largely to turn upon the defendants' ingenuity with regard to raising of proper questions of court-fee. The plaintiffs then may not have their cases tried on merits. They may have to be well satisfied with the questions of court-fee settled and answered.
9. I believe there are values like expeditious trial and doing of justice to the parties which could not have been intended to be waylaid by legislature and subordinated to this obsessive concern for payment of court-fee, particularly at the instance of one of the litigants. Citizen has a right to seek justice and the State is under a duty to render it within a reasonable time. The State duty to render justice cannot constitutionally be so completely subordinated to the State right to safeguard its revenues.
10. I cannot, therefore, agree with the argument of the learned Counsel for the petitioners that the language of Section 11 Clause (2) is mandatory and that the lower Court would be acting without jurisdiction or doing something illegal in proceeding with the trial of the case without first deciding the question relating to the payment of proper court-fee. I read the language of Section 11(2) directing that 'all questions of payment of proper court-fee shall be decided before the hearing of the suit', as merely directory and not mandatory.
11. On the above interpretation which I choose to give to Section 11 Clause (2). I find the order of the Court below suffers from no error of law requiring revisional correction under Section 115 of the Civil Procedure Code.
12. The finding of the Court below in this case is that this application for preliminary trial of court-fee issue was not bona fide and it was made to protract the litigation. If every court-fee issue is to be tried as a preliminary issue, it may well take surely thirty years to decide whether the field left to plaintiff by his ancestors for six generations belongs to him or some stranger three-hundred miles away. Justice should not always be late like the railway trains. The Court must have discretion either to try or not to try the court-fee issue as a preliminary issue.
13. Normally, a public functionary should be allowed a little elbow-room to go about his functions. Too much of discretion would almost always be bad, but too little can sometimes be even worse.
14. Mr. Sarathy referred to a Full Bench decision of this Court in C.C. Reddy v. K.C. Reddy, (1968) 2 Andh WR 616 and also to S.S. Durga Prasadarao v. State of Andhra Pradesh (1969) 1 Andh WR 200 and Kaka v. Kanhayya Lal, (1980) 1 WR 341 and an unreported judgment in C. R. P. No. 1630/71 dated 28-7-72 (short-noted in A. P. L. J. (Vol. II) p. 37). With respect I say, that in none of those cases the question which I have presently considered relating to the mandatory nature of language used in Sub-section (2) of Section 11 of the Act, was never raised and was never considered. A case can only be an authority, for what it decides. A case cannot decide a question not raised. There is, therefore, nothing inconsistent in those cases with the view I take. On the other hand, the judgment of Chinnappa Reddy J., in S. S. Durga Prasadarao v. State of Andhra Pradesh, by implication, supports the view which I have taken here. That was a revision petition filed against an order of the learned Subordinate Judge revising under Section 11 Clause (1) (b) an earlier order regarding the court-fee payable. By the impugned order, the learned Subordinate Judge directed payment of additional court-fee. Apparently, the language of Section 11 Clause (1) (b) which says, 'that the decision of the Court regarding the proper fee payable shall be subject to review from time to time as occasion requires,' supports this view of the learned Subordinate Judge. But, Chinnappa Reddy J., did not follow the literal meaning of Section 11(1)(b) of the Act. He had set aside that order holding that Section 11(1)(b) of the Act must be read along with the other provisions of the Act, like Sections 11 (2), (3) and 16. In doing that the learned Judge assigned to those Sections a purpose which is to collect court-fee and ruled that so long that purpose is not defeated, literal compliance of Section 11 is not called for. The Judgment, in my opinion, is an authority that the literal meaning of Section 11(1)(b) of the Act need not be followed and that the language of Section 11 is not immutable. The judgment of Kondaiah J., (as he then was) in C. R. P. No. 1630/71 was a judgment of Section 11 Clause (4) which dealt with the question of pecuniary jurisdiction of the Court and did not relate to the question of proper court-fee payable in a Court of unlimited jurisdiction. The other two cases have nothing to say on the present question.
15. In the circumstances of the case and on the findings recorded by the lower Court, I hold that the learned Subordinate Judge committed no error in refusing to try court-fee issue raised by the defendant as preliminary issue. The C. R. P. is accordingly, dismissed with costs.
16. There shall be a direction to the Court below that this six years old suit must be expeditiously disposed of within four months from the date of receipt of this order.