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Kumarika Subarna Rekha Mani Devi and ors. Vs. Ramakrishna Deo and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.O. Nos. 165 and 176 to 179 of 1965 and S.R. No. 37685 of 1965
Judge
Reported inAIR1968AP239
ActsAndhra Court-fees and Suits Valuation Act, 1956 - Sections 6(4), 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 50(2), 52 and 77 - Schedule - Articles 1 and 3; Orissa Court of Wards Act, 1947 - Sections 53 and 54; Code of Civil Procedure (CPC), 1908 - Sections 2(2), 2(14), 47, 48, 91, 92, 96, 100, 104, 109, 110, 144 and 151 - Order 7, Rules 1, 11 and 13 - Order 9, Rule 2 - Order 21, Rule 63 - Order 43; Indian Court Fees Act, 1870 - Schedule - Articles 1, 11, 17, 17A and 17B; Specific Relief Act, 1877 - Sections 42; Constitution of India - Article 133 and 133(1); Orissa Estates Abolition Act; Orissa Court of Wards (Amendment) Act, 1957; Madras General Clauses Act, 1891; Town and Country Planning Act, 1947; Land Acq
AppellantKumarika Subarna Rekha Mani Devi and ors.
RespondentRamakrishna Deo and ors.
Appellant AdvocateW.V.V. Sundara Rao and ;M. Sitarama Rao, Advs.;2nd Govt. Pleader
Respondent AdvocateD. Sitarama Sarma, Adv.
Excerpt:
civil - non payment of court fees - sections 22, 23 (b), 24 (d), 27 to 29, 38 (2), 39 (c), 47, 49, 50 and 77 and schedule 1, article 1 (c ) and schedule 2, article 3 (iii) of andhra court-fees and suits valuation act, 1956, sections 53 and 54 of orissa court of wards act and order 7 rule 11 of code of civil procedure, 1908 - matter regarding payment of court fees in appeal filed against order dismissing plaint under order 7 rule 11 - suit was dismissed for not giving notice under sections 53 and 54 - order rejecting plaint was decree and not order - does not come within purview of article 11 of schedule 2 - held, assessable to ad valorem fee under article 1 of schedule 1. - - (b) where the relief claimed is undervalued and the plaintiff on being required by the court to correct the.....jagan mohan reddy, c.j.1. i have had the advantage and benefit of perusing the judgments of my learned brothers kumarayya j., and venkatesam, j. as the contentions, urged before us having been set out by kumarayya, j, in his judgment. i find it unnecessary to reiterate them in any great detail.2. the question before us is what is the court-fee payable under the andhra court-fees and suits valuation act (vii of 1956) (hereinafter called 'the act') on a memorandum of appeal filed against an order rejecting the plaint under order 7, rule 11 c pc. order 7 rule 11 mentions four grounds on any one of which a plaint may be rejected. it reads thus:'the plaint shall be reiected in the following cases: (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued and.....
Judgment:

Jagan Mohan Reddy, C.J.

1. I have had the advantage and benefit of perusing the judgments of my learned brothers Kumarayya J., and Venkatesam, J. As the contentions, urged before us having been set out by Kumarayya, J, in his judgment. I find it unnecessary to reiterate them in any great detail.

2. The question before us is what is the court-fee payable under the Andhra Court-fees and Suits Valuation Act (VII of 1956) (hereinafter called 'the Act') on a memorandum of appeal filed against an order rejecting the plaint under Order 7, Rule 11 C PC. Order 7 Rule 11 mentions four grounds on any one of which a plaint may be rejected. It reads thus:

'The plaint shall be reiected in the following cases:

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued and the plaintiff on being required by the Court to correct the valuation within a time to be fixed bv the Court, failed to do so;

(c) where the relief claimed is properly valued, but the plaint is written on paper insufficiently stamped and the plaintiff does not make good the deficiency within the time, if anv granted by the Court:

(d) where the suit appears from the statement in the plaint to be barred by any law '

It may at once be noticed that in so far as the reasons for rejection in Clauses (b) and (c) are concerned, the subject-matter of appeal is capable of valuation, while the cases in Clauses (a) and (d) are incapable of valuation.

In A. A. O. Nos. 176 to 179 of 1965, as pointed out by both my learned brothers, the Subordinate Judge gave findings after full trial on all the points touching the merits as well as on the question of the suits, being bad for non-compliance with sections 53 and 54 of the Orissa Court of Wards Act, 1947, by omitting to give the required suit notices. On each of the memoranda of appeal, court-fee of Rs. 10/ was paid under Article 3(iii) of Schedule II of the Act, on the ground that it is an appeal under Section 47 C.P.C. to the High Court against an order of the Subordinate Judge which relates to a suit of the value exceeding Rs. 1000/-. The sufficiency of the court-fee paid is sought to be sustained on the ground that even though the prayer in each of the appeals is that a decree may be passed as prayed for, nonetheless the relief is confined only to the order rejecting the plaint; or, in the alternative, it is contended that the dismissal of the suit is an order under Section 47 C.P.C, relating to execution, discharge or satisfaction of a decree.

I agree with the view expressed by my learned brother Venkatesam. J. that the court has jurisdiction to give a finding on all the issues notwithstanding the fact that the question of maintainability of the suit is also one of the issues raised before it and that if in giving a finding on all the issues, it nonetheless comes to a conclusion that the suit is not maintainable, that is not to deny the jurisdiction of the Court to give the findings on the other issues or to make those findings non est for the purpose of considering the value of the subject matter in appeal The very order declaring the suits to be not maintainable for not giving notices under sections 53 and 54 of the Orissa Court of Wards Act is being challenged in appeal and if the appellant is successful, the Appellate Court could also go into the merits and adjudicate upon the findings given by the trial Court.

The memorandum of appeal is therefore capable of valuation and certainly covered by Section 49 of the Act which provides that the fee payable in an appeal shall be the same as the fee that would be payable in the Court of First Instance on the subject matter of the appeal. The instant case is governed by the main Section itself without having to apply the proviso or any of the Explanations thereto. Under the Indian Court-fees Act (VII of 1870), Article I of Schedule I contained general provision for payment of court-fee on a memorandum of appeal, the value being the value of the subject matter in dispute in appeal. It may however be stated that the value of the subject matter in the suit is not always necessarily the same as in appeal, which will have to be determined on the facts of each particular case, the general test being what is the value of the relief granted which is sought to be got rid of by the appellant: see In re, Porkodi Achi, ILR 45 Mad 246 : (AIR 1922 Mad 211). I, therefore, agree with respect with the conclusions of both my learned brothers that ad valorem court-fee is payable on the memorandum of appeal.

3. The other question which arises in S. R. No. 37685 of 1965 is what is the court-tee payable on the memorandum of appeal against the order of rejection of the plaint, where the plaint was rejected for non-disclosure of a cause of action, under Order 7, Rule 11 (a) C. P. C. On this matter, two different views have been expressed one by Kumarayya, J. and the other by Venkatesam J. While both my learned brothers held that the memorandum of appeal against the rejection of a plaint under Order 7, Rule 11 (a) or (d) C.P.C. is incapable of valuation and that court-fee is not provided for on such memorandum of appeal -- a view with which I respectfully agree. Kumarayya, J. is of the view that Section 47 read with Section 49 of the Act is applicable, on the basis that Section 47 will also cover suits whether capable of valuation or not, as long as they are not otherwise provided for I agree with Venkatesam, J. with respect, that this conclusion does not necessarily follow

I give below Section 47 and the relevant provisions of Section 49 for a better appreciation of the contentions arising for determination:

'Section 47: 'In suits not otherwise provided for fee shall be payable at the following rates:

When the amount or value of the subject-matter in dispute--(i) is less than Rs. 3,000/- ...... Rupees fifty(ii) is not less than Rs. 3,000but does not exceed Rs. 5.000/- ...... Rupees one hundred.(iii) exceeds Rs. 5000 but does notexceed Rs. 10,000/- ...... Rupees two hundred.(iv) exceeds Rs. 10,000/- ...... Rupees three hundred. Section 49 :-- the fee payable in an appeal shall be the same as the fee that would be payable in the Court of first instance on the subject matter of the appeal:

Provided that, on levying fee on a memorandum of appeal against a final decree by a person whose appeal against the preliminary decree passed by the Court of First Instance or by the Court of appeal is pending, credit shall be given for the fee paid by such person in the appeal against the preliminary decree.

Explanation (1) :-- Whether the appeal is against the refusal of a relief or against the grant of the relief the fee payable in the appeal shall be the same as the fee that would be payable on the relief in the Court of first instance.

Explanation (2):-- x x xx

Explanation (3) :-- xx x x x

Explanation (4) :-- Where the relief prayed for in the appeal is different from the relief prayed for or refused in the Court of first instance, the fee payable in the appeal shall be the fee that would be payable in the Court of first instance on the relief prayed for in the appeal.

Explanation (5) -- x x x x '

4. It may be stated that Section 47 is a new section, inasmuch as no provision similar to it is found in the Central Act. Under the Indian Court-fees Act, Article 1 of Schedule I provides for payment of ad valorem court-fee in suits not otherwise provided for, but under Section 47 of the Act, which is a residuary provision governing all suits which are not otherwise provided for, a fixed court-fee is levied according to the scales indicated therein. The value for purposes of iurisdiction in such cases is governed by Section 50 (2) of the Act, which provides that in a suit where fee is payable under the Act at a fixed rate, the value for the purpose of determining the iurisdiction of Courts shall be the market value of the moveable property or three-fourths of the market value of the immoveable property where it is not possible to estimate it at money value the amount stated in the plaint.

5. Before I deal with the applicability of any of the provisions of the Act or schedule to an appeal against an order rejecting the plaint, which comes under clauses (a) and (d) of Order 7. Rule 11 C.P.C. it will be profitable to examine the previous law and to ascertain from the provisions of the Act whether the Legislature had intended a different result to follow by enacting the Act. I am not here dealing with cases coming under Order 7 Rule 11 fb) and (c) but will confine myself only to the relevant provisions of law applicable to Rule 11 (a) and (d). Under the Indian Court-fees Act, 1870, Schedule . I dealt with ad valorem court-fees and Schedule . II with fixed court-fees. Under this Act, as also under the Madras amendment, court-fee payable in respect of a plaint or memorandum of appeal in suits where it is not possible to estimate at a money value the subject matter in dispute and which is not otherwise provided for by that Act, was dealt with under Article 17. Schedule . II and a fixed court-fee of Rs 10/- was payable. The several States had amended this provision, but we are only concerned with the Madras amendment which added Article 17-A and 17-B.

Article 17-A dealt with plaint or memorandum of appeal in a suit (i) to obtain a declaratory decree where no consequential relief is prayed; (ii) to set aside an award; and (iii) to obtain a declaration that an alleged adoption is invalid or never in fact took place or to obtain a declaration that an adoption is valid, while Article 17-3 which is in identical terms as Article 17 (vi) of the Central Act, fixed a graded court-fee for Revenue Court, . District Munsif's Court or City Civil Court. District Court or Sub-Court. Article 17-B lays down two conditions, one is, that the suit must be incapable of valuation in terms of money and the other is that it must not have otherwise been provided for by the Act. In the Central Act. Article 11 of Schedule . II dealt with Memorandum of Appeal when the appeal is not from a decree or an order haying the force of a decree. The question is whether this Article or Article 17-B would be applicable to appeals against orders of rejection of plaints.

In other words though under Article 11 an order rejecting the plaint is deemed to be a 'decree' within the meaning of Section 2(2) of the Civil Procedure Code and a decree so defined is specifically excluded from the definition of 'order' in Section 2(14) C.P.C., did that Article deal with orders m generic term without regard to the above definitions in the C.P.C. It was held that Article 11 is not applicable as it certainly excluded orders of rejection of plaints from the purview of that Article. The Madras amendment, however, gave a different heading, viz.. memorandum of appeal when the appeal is from an order inclusive of an order determining any question under Section 47 or Section 144 of the Code of Civil Procedure, 1908, which gave rise to a contention that this amendment did not adhere to the definition of 'order' under Section 2(14) C.P.C. and had by re-defining it to include what was excluded under it, by its inclusion in the word 'decree' as defined in Section 2(2). Even though the word 'decree' or 'order' has not been defined in the Central Court-fees Act, under Section 3 of the present Act these words unless the context otherwise requires are to have the same meaning as those given in the C.P.C.

My learned brother Kumarayya, J. has, examined this aspect of the matter in great detail, not only vis-a-vis the position as it existed under the Central Act and the Madras amendment, but also under the present Act. and has expressed the view with which with great respect I agree that an appeal from an order rejecting the plaint being a decree and not an order as defined in Section 2(14), is not governed by that Article or Article 3 of Schedule . II of the present Act. In so far as the previous law is concerned, the matter was considered by a Bench of the Madras High Court in S. R. No. 1923/23 (unreported) cited by Satya-murty Aiyar in his book on Court-fees and Suits Valuation Acts (3rd Edn.) p. 423. Two points were urged in that case, namely, (1) that a memorandum of appeal against rejection of a plaint fell under Article 11, Schedule II of the Central Act us amended by the Madras Act (V of 1922) and (2) even if it is considered that the memorandum of appeal is from a decree, the memorandum of appeal would attract either Article 17-B of Schedule II on the basis that the subject matter of dispute in appeal is incapable of valuation, or Article 1 Schedule I where it is capable of valuation. Schwabe C. J., expressed the view that the Legislature intended to follow the definitions contained in the C.P.C and drew confirmation of his view from the specific inclusion of orders under Section 47 and Section 144 C.P.C. in Article 11 of Schedule II with respect to which he said:

'. . . . it is to be observed, that though those two are included in the word 'order' no doubt because they would be otherwise be excluded as being things to be reckoned amongst decrees and not amongst orders: an order rejecting a plaint, which is to be deemed to be a decree under the Code of Civil Procedure, is not included under Article 11 of Schedule II of the Court-fees Act.'

On a consideration it appears to me that ii 'order' is used in its generic term to include all orders including those deemed to have been included within the definition of 'decree' under Section 2(2) C. P. C. thrn there was no purpose in again including that in the word 'order' as used either in Article 11 of Schedule II of the Madras amend-ment or in Article 3 of Schedule II of the present Act. If Articlp 3 Schedule II of the Act taken as giving a new definition of the word 'order', even then that does not specifically include orders under Order 7, Rule 11 C. P C. The conclusion is therefore inescapable hat orders under Order 7 Rule 11 C.PC. dealing with the rejection of plaints do not come within the purview of Article 11 of Schedule II of the Central Act as amended by the Madras Act or under Article 3 Schedule II of the present Act.

If not, does Article 17-B apply to memo-randum of appeal relating to Order 7, Rule II (a), and (d) But before I answer this question, it may be stated that an order reject-ing a plaint has not been provided under any of the provisions of the Central Act or the Schedules nor was it the subject-matter of any of the amendments nor for that matter, even in the present Act has it been provided for. That is the reason why it is necessary to consider whether any of the residuary Articles deal with this aspect of the matter. I have already stated that in so far as Article 1 Sch I is concerned, advalorem Court-fee specified therein is leviable on memoranda of appeal dealing with the rejection of plaints coming under cls. (b) and (c) of Rule 11 or Order 7, as being 'not otherwise provided for' Schwabe. C. J. in the aforesaid Court-fee reference also took a similar view.

6. We are all agreed that the reliefs sought under Order 7, Rule 11 (a) and (d) are incapable of valuation and that there is no provision or Article in any of the schedules which provide for the levy of court-fee on memorandum of appeal if such relief is the subject-matter in appeal. While this is so, Article 17-B of the Madras amendment as already stated provides for fixed court-fee where the subject-matter is not capable of pecuniary valuation and is not other-wise provided for so that both the requirements are satisfied in respect of the reliefs under Order 7, Rule 11 (a) and (d), while Schedule I, Article I will apply to the reliefs under clauses (b) and (c) because the subject-matter of the suit is capable of pecuniary valuation and it is equally not otherwise provided for. In ascertaining what court-fee is payable it is first necessary to determine whether there is any specific provision in the Act attracting court-fees in respect of the subject-matter of the suit or appeal. If so, the court fee provided therein will be levied. If there is no specific provision and the Act has not provided for such cases, then il has to be considered whether the subject-matter of the suit or appeal is capable of pecuniary valuation. If it is capable of pecuniary valuation, court-fee provided in Article I. Schedule I. will be attracted as court-fee payable in cases not provided for. If the subject-matter is not capable of such valuation, then obviously Article 17-B Schedule II of the Madras Amendment will apply This appears to me from a plain reading of the provisions of the Court Fees Act together with its Madras Amendment before the enactment of the present Act.

But even before the enactment of the Act. there have been some cases where it has been held that though, otherwise the suit would have come under Article 17-B of Schedule II because the plaintiff had himself stated some amount as the value of the relief, the suit must be treated as being capable of pecuniary valuation and so chargeable with ad valorem court-fees. I cannot, however, accept the reasoning adopted in the line of cases because it is contrary to the plain reading of the provi-sions Schwabe. C. J.'s observations in the Bench decision cited above fortify my view. The Bench was considering the contention that either the subject-matter which governs the rate of fee payable is incapable of valuation and, therefore, comes under Article 17-B of Schedule II. or that the subject-matter in dispute is the difference in the stamp claimed by the lower Court and stamp which the plaintiff is prepared to pay or as contended by the Crown that as the suit involves title to lands, the value of those lands as given in the suit, would be the value for the purposes of court-fees on the memorandum of appeal. As we have already observed, the Bench held that where the subject-matter in dispute is the difference between the stamp claimed by the Court and the stamp which the plaintiff is prepared to pay the fee is payable on what is leviable in cases covered by the relief asked for namely the difference.

Schwabe, C. J. observed as follows:

'It is agreed that the subject-matter in dispute means the subject-matter in dispute on appeal, and it would indeed be strange if the position were this; that if the whole case had been heard and there had been a decision of one point upon which the plaintiff wished to appeal, he would in coming up to this court only have to pay court-fee based on the value of the item In respect of which he was appealing; while if his case had not been heard at all, and the question was about the maintainability of the suit; in order to come upto this Court to ask that the case should be heard, he would have to pay a court-fee equal to what he would have had to pay if he had lost the whole of the suit and had desired to appeal in respect of the whole. It is almost inconceivable to my mind that the Legislature could have intended such a result, and, unless one is driven to the conclusion by very clear words that that was the intention of the taxing statute, it would, be in my judgment, impossible so to hold. I find no clear words in this Arti-cle to drive me to that conclusion I think that the subject matter in appeal, has the simple meaning applicable to those cases namely the amount of stamp in dispute between the parties.'

7. Next dealing with the case where the subject-matter in dispute is not the difference in the two fees, he observed:

'.... .then I think it would be a subject-matter which is incapable of valuation. The question whether this case has to be heard or not and I confess that I have had very correct to say (sic) that the real subject matter is whether the case is to be heard or not and not what fee is to be paid.. ... '

The above passage gives a clear indication, that where a dispute was not the difference in two fees to be capable of valuation under Article I of Schedule I. the subject-matter of the suit being incapable of valuation the inference is that Article 17-B would apply. What is to be ascertained is the value of the relief granted which is sought in the appeal to be Rot rid off. If the relief granted is the rejection of the plaint and be it noted not dismissal of the suit, it can be on any of the following grounds namely. (1) undervaluing the relief claimed and not correcting the value as required within the time fixed by the Court or where the relief claimed it properly valued but the plaint is written on a paper insufficiently stamped and the plaintiff does not make Rood the deficiency within the time granted by the Court, and (2) where the suit does not disclose a cause of action or appears from tha statement in the plaint to be barred by any law. In first of the two cases, it attracts ad valorem court-fee. In the second of the cases the relief being incapable of valuation and not otherwise provided for, it would attract the court-fee under Article 17-B.

While most of the cases which have been referred to before us including the S. Rs. decided by Gopal Rao Ekbote, J. and Anantanarayana Ayyai. J. are all cases dealing with the first category of reliefs, excepting the decision of the Rajasthan High Court in Dharam Chand v. Punam Chand, with which I shall deal presently, there are no specific cases dealing with the second category though as I have shown Schwabe C .J had observed that if the subject-matter in dispute were not the difference between the two fees, it would be a subject matter which is incapable of valuation. Venkata Subba Rao, J., delivering the judgment of the Bench in Kalliappa Goundan v Kandaswami Goundan, AIR 1938 Mad 498. has dealt with two contentions, one of which is the subject-matter of dispute it, the different between the court-fee paid and the court fee demanded which according to the learned Judge seems to be the natural and plain meaning of the words and that it was wrong to put a forced construction on the language. The other contention dealt with by him is that the subject-matter in dispute is the subject-matter of the suit itself which was rejected. This view was rejected by Niyogi, AJ.C. in Ganapathi v. Venkatesh AIR 1935 Nag 83 (FB) in his dissenting judgment and the Bench of the Madras High Court in AIR 1938 Mad 498 (supra) has agreed with the view of Nivogi A. J C. who pointed out that the rejection of a plaint means only a refusal to entertain the suit and can in no ca'se imply a conclusive deter-mination of the rights of the parties. Venkata Subba Rao. J, said, Order 7. Rule 13, C.P.C. which provides that the rejection of a plaint, inter alia, for failure to pay the deficit court-fee, shall not preclude the plaintiff from presenting a fresh plaint, lends support to their view.

8. In (supra), the Bench of the Rajastan High Court, to which I have already referred, were no doubt considering a case under Rule 11(a) of Order 7 which is incapable of valuation and while it held that orders under Order 7. Rule 11 are decrees and are not Covered by Article 11 of Schedule II they nonetheless held that these orders are cover-ed by Article 1 Schedule I and attract ad valorem court-fee. The Bench seems to have been influenced by a decision in Appavao Sesh Rao v. Mt. Bhagubai. AIR 1949 Nag 1 which is certainly not a case where the relief was incapable of valuation, but was one under Order 7, Rule 11 (c). In that case, with great respect, no attempt has been made to distinguish between the several kinds of reliefs that can be asked for in an appeal from an order under Order 7, ft 11, those which are capable of valuation and those which are incapable of valuation, and the applicability of Article 1 Schedule I to those that are capable of valuation and Article 17{vi) of Schedule II to those which are not possible to estimate at a money value -- and appeals On any of the four grounds specified in respect of rejection of plaints seem to have been all treated as if they are capable of valuation attracting ad valorem court-fee under Article 1 Schedule I. With this view, with great respect. 1 must disagree.

9. This being the state of law prior to the enactment of the present Act in respect of court-fees payable on subject-matter of appeals capable of valuation, and those in which it is not possible to estimate at money value of subject matter of dispute, and it being accepted that in the present Act no specific provision has been made by any of the Section or schedules in respect of appeals where the subject matter of dispute is not capable of valuation, is it possible to construe, that Section 47 which is a residuary provision, will apply to appeals against orders of rejection of plaintf, which are incapable of valuation The Section does not specifically deal with subject-matters of dispute which are incapable of valuation; but it is thought that it may be interpreted to cover such cases also either on the assumption that the order rejecting the plaint is directed to be received, heard and decided on merits, or on the assumption that the appeal cap be valued on the same basis as if a suit to set aside such an order could be filed. I must with great respect say that construction so strained as this would amount to a pre-disposition that the Legislature has successfully executed its intention in the enactment by providing for lew of court-fee for every relief. We have to apply certain well-accepted canons of construction relative to the interpretation of fiscal and taxing statutes and those rules do not permit us to adopt a liberal construction with a view to construe the provision in favour of the State as against the citizen. In my view, though it may be necessary where the constructions are possible to harmonise them it is not permissible in interpreting a taxing statute to harmonise a particular construction against the subject. As aptly observed by Wright J. in London County Council v. Aylesbury Dairy Co.. (1898) 1 Q.B. 106 at page 109:

'.. .Where there is an enactment which may entail penal consequences., you ought not to do violence to its language in order to bring people within it, but ought rather to take care that no one is brought within it who is not brought within it in express language.'

Or, as Rowlatt, J., has tersely put it in Cape Brandy Syndicate v. Inland Revenue Commissioners, (1921)1 1 K.B. 64:

'It simply means that in a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used.'

In Pithapuram Taluk Tobacco Cigars and Soda Merchants Union v. State of Andhra Pradesh, 1958-9 S.T.C. 723 : AIR 1958 Andh Pra 558 where, delivering the judgment of a Bench consisting of Subba Rao, C. J. (as he then was) and myself, I had summed up the rule as under at p. 744 (of STC) = (as p. 567 of AIR)

'To sum up, the principle deducible from these authorities, is that there are no special rules for construing a taxing statute or of applying to it too narrow or fanciful a construction for holding against the State or in favour of a citizen. The ordinary rules of construction as are applicable generally in construing a statute for ascertaining the intention of the legislature are applicable to taxing statutes also and if in so construing it, two equally opposite constructions are possible, the one in favour of the tax-payer should be adopted and that in so construing the provisions, the context as well as the other provisions of the statute must be taken into consideration.'

Applying these well accepted canons of construction, I agree, with great respect, with the view taken by my learned brother Venkatesam, J in negativing both these assumptions.

10. Section 47 is a residuary Section prescribing graded court-fee payable in suits not otherwise provided for, on 'the amount or value of the subject-matter in dispute.' Section 49, as has been seen, provides that the fee payable in an appeal shall be the same as the fee that would be payable in the court of first instance on the subject-matter of the appeal. Explanation (1) applies to appeals preferred against the refusal of a relief or against the grant of the relief in the suit, and provides that the fee payable is the same as the fee that would be payable on the relief in the court of first instance. Explanation (4) is in respect of an appeal where the relief prayed for in the appeal is different from the relief prayed for or refused in the court of first instance, in which case the fee payable in appeal is to be the fee that would be payable in the court of first instance on the relief prayed for in the appeal The question is whether these two sections. Sections 47 and 49, can be read together as applying to orders rejecting plaints under Order 7, Rule 11(a) and (b).

11. Section 47, it may be noticed, uses two phrases, -- one. 'amount or value' and the other 'subject-matter in disput'. 'Subject-matter of dispute' in a suit or an appeal in my view, without attempting of an exhaustive definition, ts the relief or the right asked for or claimed in that suit or appeal. The subject-matter of dispute need not necessarily be the same in the suit and the appeal. This position is too well understood for me to labour; nor is it necessary to reiterate that subject-matter of dispute may be either capable of valuation or incapable of valuation. What is capable of valuation. -- whether it is the 'marki-t value' or 'proper value' or 'real value'.--is in any case its money value.

The word 'amount' connotes the aggregate sum or money value and the word 'value' used with a disjunctive 'or' is intended to convey the same meaning, viz., that the value also has to be measured in money: both these words, namely 'amount' or 'value', when read with the graded money values given of the subject-matter to dispute, for payment of fixed court-fee makes it amply clear that anything which has no money value was not intended to be covered by Section 47. In other words, the subject-matter of suits which are incapable of valuation are not governed by Section 47 either by giving a wider meaning to the phrase 'subject-matter' or by holding that an amount under Rs 3,000/- would also include zero, something that has no money value at all; nor can the provisions of Section 50 (2) be pressed into service for the purpose of attracting Section 47 in matters which are incapable of valuation, by holding that the value given for the purpose of jurisdiction would be the value of the subject-matter of dispute for purposes of court-fee within the meaning of Section 47.

Merely because sections 38 (2) and 39 (e) refer to Section 47 for the determination of the court-fee in cases where the market value cannot be ascertained, it does not follow that Section 47 deals with subject-matter of disputes which are incapable of valuation. Section 38 (1) deals with suits to set aside attachments or to set aside an order passed in an application made to set aside an attachment, under which the market value of the property under attachment or the amount for which the property was attached, and not the amount of the decree, that is taken as the value of the suit for the purpose of determining the court-fee. Section 38 (2) deals with suits to set aside a summary decision of a civil or revenue court similar to Order 21. Rule 63 C.P.C. applicable to civil court attachments and applies to both movable and immovable properties. It is evident that this provision is applicable to property actuallv attached and it must necessarily have market value. But if it has no market value, which means that it has no value in the market, such, for example, as a temple or res extra commercium (though the cost of the building of the temple can be valued in money), Section 38 (2) indicates payment of court-fee under Section 47, because it is a matter otherwise provided for.

Section 39 deals with suits tor specific performance of contracts, with or without possession which necessarily involve some tangible property (moveable or immove-able) which property may have either market value or no market value. Sub-clause (1) of Section 39 deals with contracts of sale, court-fee on which is to be computed on the amount of the consideration; clause (b) deals with a contract of mortgage, court-fee being computed on the amount agreed to be secured by the mortgage; clause (c) says that in the case of a contract of lease, court-fee should be computed on the aggregate amount of penalty or premium, if any, and of the average of the annual rent agreed to be paid; clause (d) provides that in the case of a contract of exchange court-fee is to be computed on the amount of consideration or as the case may be, on the market value of moveable or three-fourths of the market value of the immoveable property sought to be taken in exchange: and clause (e) says that in other cases, where the consideration for the promise sought to be computed on the market value of the movable property or three-fourths of the market value of the immoveable property, or where such consideration has no market value, at the rates specified in Section 47, In all these cases, Section 39 deals with a contract or promise sought to be enforced in relation to property whether movable or immoveable, so that under Section 39 (e) when it is provided that where the consideration has no market value, court-fee is to be computed as specified in Section 47, it is only dealing with enforcement of the consideration for the promise relating to moveable or immove-able property, which may not have any value in the market, but which nonethe-less can bo valued in money.

12. The same phrase 'amount or value of the subject-matter in dispute' as used in Section 47 is similarly used in Section 110 C. P C. and Article 133 of the Constitution of India, for obtaining a certificate for leave to appeal from judgments, orders or decrees of the High Courts to the Privy Council and now to the Supreme Court, over a certain money value, which before the Constitution wa? Rs. 10,000/- and after it Rs. 20,000/-. In construing those provisions, it has been held that where the amount or value of the subject matter in dispute cannot be measured in terms of money, it is incapable of valuation and the applicant cannot ask for leave to appeal as a matter of right, but could only do so under thf specific provision for granting of leave as a fit case.

In Radhakrishna Ayyar v. Swaminatha Ayyar, 48 Ind App. 31 : (AIR 1921 PC 25) their Lordships of the Privv Council were considering the question whether the grant of the certificate for leave to appeal is under Section 110 for an appeal under Section 109(a) and (b) or whether it falls within Section 109 (c) and Section 110 as a case otherwise fit for appeal. To meet the requirements of Section 109 (a) or (b), the amount or value of the subject matter of the suit in the court of first instance must be Rs. 10,000 or upwards and the amount or value of the subject matter in dispute on appeal to the Privv Council must be the same sum or upwards. In laying down the principle governing these cases, Lord Buck-master said: at page 33 (of Ind. App): Mat p. 26 of AIR):

'..... as an initial condition to appeal to His Majesty in Council, it is essential that the petitioners should satisfy the Court that the subject matter of the suit is Rs. 10,000/-, and in addition that in certain cases there should be added some substantial question of law. This does not cover the whole grounds of appeal, because it is plain that there may be certain cases in which . it is impossible to define in money value the exact character of the dispute: there are questions, as for example, those relating to religious rights and ceremonies, to caste and family rights, or such matters as the reduction of the capital of companies as well as questions of wide public importance in which the subject matter in dispute cannot be reduced into actual terms of money. Sub-section (c) of Section 109 of the Civil Procedure Code contemplates that such a state of things exists, and Rule 3 of Order 45 regulates the procedure. It is there provided that the petition of appeal should state the grounds of appeal, and pray for a certificate that either as regards amount or value and nature, the case fulfils the requirements of Section 110. or that it is otherwise, i.e., under Section 109, sub-section (c) a fit case for appeal to His Majesly in Council.'

Again in Radhakrishna Ayyar v Sundara-swami Iyer, 49 Ind. App. 211 :(AIR 1022 PC 257) Lord Shaw of Dunfermline at pages 215. 216 (of 1A) (at p. 258 of AIR) said:

'In the first place, the sum of money actually at stake may not represent the true value. The proceeding may, in many cases, such as a suit for an instalment of rent or under a contract raise the entire question of the contract relations between the parties and that question may, settled one way or the other, effect a much greater value, and its determination mav govern rights and liabilities of a value bevond the limit '

Even under the earlier Civil Procedure Code of 1882, in Banarsi Pershad v. Kashi Krishna Narain. (1893) 28 Ind APP 11 (PCI it was observed by Lord Hobhouse. at pace 13 thus:

'It is true that bv sections 305 and 600 an appeal may be granted if the High Court certifies that the case is fit for appeal 'otherwise' i.e.. when not meeting the con-ditions of Section 596. That is clearly intended to meet special cases such, for exam-ple, as those in which the point in dispute is not measurable of money, though it may be of great public or private importance.'

That the position continues to be the same is also evident from the subsequent cass law, with respect to which I may refer to two cases. In Balarami Reddy v. Masthan Saheb, : AIR1953Mad968 , the Bench was considering a case where in a suit for a declaration that the plaintiff is a validlv appointed trustee of certain mosque and that the appointment of the defendant was void and inoperative, there is an ancillary prayer for recovery of possession of properties and sums of money on a rendition of accounts, and a prayer for a permanent injunction restraining the defendant and his men from interfering with the plaintiff's right to manage the mosque and its endowments., It was held that the essential subject matter of these suits is the post of trusteeship of the mosque and nothing more, and as such, incapable of valuation and para (1) of Section 110 C. P. C. and sub-clause (a) of Article 133(1) of the Constitution do not apply. Govinda Menon, J., observed at page 968:

'Therefore we have to take it that the real relief asked for is with respect to trusteeship and if that is so. clause (1) (a) of Article 133 of the Constitution cannot be invoked.'

This case hah own followed by Srinivasan and Venkatadri. JJ. in Mohd. Sayeed v. Mohd. Jaffar, : AIR1966Mad313 , which deals with the Mutavalliship of a mosque, where; admittedly the properties were worth more than Rs. 20,000/-. It was held that the question of mutavalliship relates only to the office and not to the properties, and that being so, it does not satisfy the requirements of Article 133(1)(a), of the Constitution, That case has also referred to an unreported judgment in Chockalinga Sethu-rayar v. Arumainavagam S. C. P. No. 28 of 1960 (Mad) where Ramachandra Iyer, C. J. ''and Ramakrishnan, J., followed the decision of Govinda Menon and Basheer Ahmed Saheed. JJ. The fact that as a result of the decision of the Court in respect of the trusteeship of the mosque, the trustee so declared would take possession of the properties was not a matter to be taken into consideration in determining the amount or value of the subject matter in dispute.

13. I am, therefore, clear in my mind that Section 47 read with Section 49 will not cover a case where the subject-matter of an appeal is incapable of valuation, and that in drafting the Act a provision was omitted to be made, -- and I think inad-vertenty. -- to provide for payment of court-fee in suits or appeals where the subject matter in dispute is incapable of valuation. In this view, there seems to be no provision for levying court-fee on appeal from an order rejecting the plaint under of 7. Rule 11 (a) and as such, I agree with Venkatesam. J. In my view, it is for the legislature to remedy this defect and to provide for payment of court-fee in suits or appeals which are incapable of valuetion on the basis similar to the one contained in Article 17-B of the Madras amendment to the Indian Court-fees Act.

14. KUMARAYYA, J.: A. A. O. Nos. 176 to 179 of 1965 purporting to be filed under Section 47 C. P. C. with a fixed court-fee of Rs. 10/- against the order of rejection of plaint on the grounds stated in Order VII Rule 11 (d) of Civil Procedure Code made by the Subordinate Judge, Visakhapatnam, in O. S. Nos. 18 31, 41 and 90 of 1963 and S. R. No. 37685 of 1969 purporting to be filed under sections 96 and 151 C. P. C. with the same fixed court fee under Article 3 Schedule II of the Andhra Pradesh Court-fees and Suits Valuation Act (hereinafter referred to as the Act) against the order of rejection of plaint of the Subordinate Judge, Warangal on the ground mentioned in Order VII Rule 11 (a) C. P. C., raise a common question as to the correct court-fee due on the said memoranda if appeal. The Office, receiving these memoranda, entertained a doubt whether Article 3 of Schedule II could at all be applicable to the Orders which are deemed to be decrees under Section 2(2) C. P. C. and having regard to the dictum of Justice Gopal Rao Ekbote in S. Rule No 22299 of 1963 (AP) and of Justice Anantanarayana Ayyar in S. H. Nos. 227 and 228 of 1964 (API and various decided cases of the High Courts, submitted a note for orders of the court that the appellants be directed to convert the A. A. Os. into appeals under Section 96 C. P. C. and pay the court-fee calculated on the amounts mentioned in the plaint which must form the subject-matter of the appeals as well. When the matter came up for orders, one of us (Venkatesam J.) in view of the importance of the question, referred the matter to a Bench. The Division Bench consisting of two of us, (the learned Chief Justice and E. Venkatesam J.) on a further consideration thought It necessary to refer the matter to a Full Bench. That is how the matter is before us.

15. It is necessary to notice the facts leading to the above appeals and the scope and effect of the memoranda of appeal filed in order to find out what should be the correct provision or provisions of the Act applicable to them. O. S. Nos. 18. 31 4] and 90 of 1963 out of which the above four A. A. Os arise are suits for recovery of legacy amounts due to respective plaintiff under a will dated 19-8-1935 some of the legacies having been augmented by reason of subsequent deaths of certain legatees. The testator Maharaja Sri Vlkram Deo Varma admittedly died on 14-4-1951 leaving vast estates both in the State of Andhra Pradesh and of Orissa. The defendant, the adopted son of the said Maharajah, succeeded on the death of the latter to the family properties including the ancestral joint family impartible estate of Jeypore. He being then a minor the Orissa Court of Wards took up the entire management of the estate which devolved on him by survivorship. Before lung the Impartible estate of Jeypore was abolished by reason of the advent of the Orissa Estates Abolition Act and became vested in the Government of Orissa on 29-12-1952. There were huge arrears of income tax and other liabilities due from the late Maharajah. They had to be, of necessity, collected by way of attachment and sale of the properties in the hands of the defendant. On the application of the defendant himself the government of Orissa declared him as a ward under the Court of Wards Act and the Collector was put in charge of the management of the properties.

While the matters stood thus the present actions were laid against the defendant for recovery of the legacy amounts. The defendant disputing the truth and validity of the will and the plaintiffs right to claim any amounts without a due succession certificate, set up sections 53 and 54 of the Orissa Court of Wards Ad against the maintainability of the actions It was urged that the suits must fail for want of due notice under Section 53 which more or less corresponds to Section 80 C. P. C. and further they were bad in law as the defendant was not represented by the court of wards as the guardian as provided under Section 54 of the Court of Wards Act. These pleas were not taken up for decision as preliminary issues. The matter went to trial. The parties joined issues. The learned Subordinate Judge after hearing the arguments found almost all the issues in favour of the plaintiffs but held at the same time that Sections 53 and 54 of the Orissa Court of Wards Act, 1957 applied to the cases and on that basis rejected the plaints in all the four suits. It is against this order that the plaintiffs have filed their respective ap-peals.

16. It is significant that these memoranda of appeals while purporting to be against an order of rejection of the plaint are not confined to reliefs arising therefrom but go much beyond so as to claim decrees on the findings reached by the trial court on other issues. They seek for decrees in some form or other dependant on the decision on the preliminary issues. In all these appeals the plaintiffs-appel-lants have alleged that whatever may be the view to be taken on the preliminary issues there could be no impediment in passing a money decree with a charge on the properties in Andhra Pradesh State or at anv rate to the passing of simple money decrees against the defendant and to leave all other matters of detail to br worked out in execution proceedings. They contended also that there was no impediment even in decreeing the suits as praved for as sections 53 and 54 did not apply at all.

17. It is thus plain that the reliefs claimed for in these appeals are not confined to setting aside the order of rejection but include a further relief for a decree on the findings reached by the trial court on other issues. Of course the same is not the case with S. R. No. 37685/65 where the plaint has been rejected on the ground that it does not disclose a cause of action. The action laid was one for possession questioning the validity of the sale deed executed by one late Yadgiri the husband of plaintiff and father of the plaintiff No. 2 in favour of the Rajalaxmi who in turn sold it to Laxmi Narayan. The preliminary issue raised was that a female whether a wife or daughter has no vested right in the property owned and held by a male owner and cannot therefore question his transfers inter vivos. This plea was accepted and the learned Subordinate Judge, Warangal passed an order of rejection of plaint on the ground that the plaint did not disclose cause of action.

Aggrieved by this order the plaintiffs-appellants have filed this S. R. The appellants herein simply seek to get rid of the order of rejection so that the suit may be heard and disposed of on merits.

18. This, in short, is the exact scope of the various memoranda of appeal and we have V see what is the correct court fee to be paid thereon.

19. The main contention of Mr. Seetha-ramarao is that this case falls squarely within the provisions of Article 3 of Schedule II to the Act. That provision reads thus:

Article Particulars Proper fee8 Memorandum of appeal from an order inclusive of anorder determining any question under Section 47 orSection 144 of the Code of Civil Procedure 1908, andnot otherwise provide for when presented--(iii to the High Court -(2) where the order was passed by a subordinate courtor other authority--(a) it the order relates to a sun or proceedings thevalue of which exceeds one thousand rupees Ten rupees.

Evidently it is intended to be but a residuary provision for appeals against orders. This intention of the legislature is obvious in view of the plain and clear language used. Two conditions must necessarily be satisfied in order to come within its ambit. Firstly the appeal must be from an order and secondly the court fee therefor must not be provided otherwise than by this provision. To put it differently it must not be covered by any other provision Both these conditions are not mutually exclusive but complementary to each other. Absence of either or any of these elements will take the case out of the purview of this provision.

20. The first question then is whether the appeal in question is from an order within the meaning of this provision. The term 'order' has not been defined in this or in the earlier Acts. However, this expression as employed in the earlier Court-fees Acts was understood in the samp way as in the Civil Procedure Code. The present Act has taken care to state in Clause (iv) of Section 3 that expressions used and not defined in the Act or in the Madras General Clauses Act 1891 (Madras Act I of 1891) but defined in the Code of Civil Procedure 1908 (Central Act V of 1908). shall have the meanings respectively assigned to them in the said Code, This of course is subject to the opening clause of Section 3. (viz), 'unless the context otherwise requires'. That is to say that given clear or requisite context the expression may mean differently or have narrow or extended meaning. This expression is not defined in Madrab Act 1891 either 'Order' according to sub-section (14) of Section 2 C. P. C. means the formal expression of any decision of a civil court which is not a decree.' It is thus other than a decree. In fact it is used in contradistinction to a decree for the purposes of the Code of Civil Procedure.

'Decree' according to sub-section (2) of Section 2 C. P. C. means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final, or partly preliminary or partly final It shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 C. P. C. or Section 144 C, P. C.. but shall not include--(a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default.

21. The distinction between orders and decrees is thus obvious from the above definitions. Of course both alike are a formal expression of decisions of a civil court. The distinction however lies in the nature of the decision itself, whether it is an adjudication of a particular kind or not rather than in the manner of such expression. The definition of decree in Section 2(2) C. P. C. as noticed introduces a statutory fiction by making a deeming provision in relation to particular orders which would not otherwise have been decrees. Ah order rejecting plaint does not conclusively determine the rights of parties nor is it a formal expression of adjudication determining the rights of parties with reference to any matter in controversy in the suit. Indeed, rejection of plaint on any of the grounds mentioned in Rule 11 of Order VII does not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action as provided by Order VII Rule 13 C. P. C., it does not mark the due termination of a suit on merits but only takes away the basis of the suit as though it was never filed. Nevertheless Section 2(2) enacts that an order rejecting a plaint under Order VII, Rule II C.P.C. should be deemed to be a decree. This is apparently because rejection of a plaint conclusively determines that the plaintiff is not entitled to bring his suit on a court fee stamp of a value less than what has been found by the Court or that the plaint, as filed, is barred by any law or does not disclose any cause of action and to this extent there is a final decision so far as that court is concerned with regard to the said matters in controversy in the suit. Be that what it may, the truth remains that the order of the kind would not have been strictly within the meaning of the decree but for the deeming provision.

So also the determination of any question under Section 47 or Section 144 C.P.C. Thus by introducing a statutory fiction these orders which could not otherwise be strictly within the meaning of decree have been assimilated with the concept of 'decree' for purposes of Civil Procedure Code with all the legal incidents flowing therefrom. The purposes of a deeming provision may be manifold. The Bombav High Court in Khatira Bai Mohammed Ibrahim v. Controller of Estate Duty Bombav. ILR (1959) Bom 1603 = AIR 1960 Bom 61 considered the scope and province of this expression and observed thus:

'The expression 'deemed' is used a great deal in many modern statutes and for many purposes, it is at times used to give a special glossary or paraphrase to an expression or an artificial construction to a word or phrase. It is at times used to introduce artificial conceptions which are intended to go beyond settled legal principles. It is at times, used to remove uncertainty or leave no scope for doubts and denotes which may involve defined and ingenious points At times it is used to give extended or restricted operation to a rule which cannot be given to it if it be read as enacted. This last is of considerable importance when the Legislature lays down a rule the extent and operation of which according to ordinary canons of construction would be confined--we shall take an illustration close to the case before us--to property or the intention is that rule should have wider extent and embrace more than what it states. In such a case, the legislature may well lay down and add that more than what is stated in the rule shall be deemed to be included in the meaning and concept of the words or phrase used in the rule. In such a case the language of the rule notwithstanding the operation and extent of it is widened by the 'deeming' provision.'

The principle, however, is beyond doubt that a deeming provision introducing statutory fiction must be given its full effect. The Supreme Court had occasion to consider this aspect in State of Bombay v. Pandurang Vinayak, : 1953CriLJ1049 . Therein their Lordships made the following observations: -

'When a Statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion, (vide Lord Justice James in Ex parte, Walton. In re. Levy, (1881)17 Ch. D. 746 at p. 756). .... '

In ECast End Dwelling Co., Ltd. v. Finsbury Borough Council, 1952 A. C. 109. Lord Asquith while dealing with the provisions of the Town and Country Planning Act. 1947 made reference to the same principle and observed as follows:--

'If you are bidden to treat an imaginary state of affairs as real you must surely unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from and accompanied it ......The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.'

22. It may further be seen that whilei by a deeming provision the Civil Procedure Code takes in the above orders within the meaning of decree, it in terms excludes cer-[ tain other adjudications which may otherwise come under this definition, such as orders from which appeals lie as appeals from orders and any order of dismissal for default. If that were not so the clause 'but shall not include' would be without meaning. Not only this, in its various provisions certain adjudications partaking of the characteristics of a decree have been expressly stated to be only orders e.g.: orders under Order IX, Rule 2 etc. Further there are also cases where certain orders have been given the force of a decree treating them as if they were decrees by making express provision in that behalf, but without including them in the definition (e. g.) orders under Order XXI, Clause (2) of Rule 50 which are reckoned in Clause (3) as though they are decrees. They are, indeed, impressed with the incidents of a decree though they are not brought within its definition in Section 2(2) C.P.C. It is thus clear that C. P. C. has determined the true limits and province of a decree by showing what is and what is not a decree and what is it which it has only the force of a decree.

23. The importance of making a distinction between an order and a decree lies in the fact that whereas in an adjudication which is a decree an appeal invariably lies therefrom and a second appeal also on the grounds mentioned in Section 100 C.P.C. No appeal lies from an order unless it is expressly provided under Section 104 or Order 48 C.P.C. end in any event no second appeal lies.

24. Such indeed is the meaning province and incidence of the orders and decrees under the clear provisions of the Civil Procedure Code. We are however, concerned with the said term used in Court-fees Act. As already noticed the Court-fees Act also has adopted the meaning of these expressions as defined in the Civil Procedure Code, of course subject to the only qualification that unless the context otherwise requires. In other words, the Court-fees Act may give a different meaning to these expressions, but that should be apparent from the context.

25. Now Article 3 Schedule 2 says, 'memorandum of appeal from an order inclusive of an order determining any question under Section 47 or 144 of the Code of Civil Procedure'. The word 'inclusive' is pregnant with meaning. It cannot be said that it is unnecessarily used. It implies that but for it the order under Sections 47 and 144 would not have been within the ambit of that provision. The expression 'inclusive of orders determining question under Sections 47 and 144' would have been quite unnecessary if 'memorandum of appeal from on order' did of its own force and effect include such orders. Apart from the legislative practice and the meaning to be given to the term 'inclusive' the further context in the provision and even reference to the Code of Civil Procedure therein must necessarily indicate that the Act for the purposes of said provision sought to include in the term orders even orders determining anv question under Section 47 or Section 144 CP.C. which it could do only by specific mention thereof for according to the definition in the C.P.C they are deemed to be included in the term decree. At tht same time it is equally manifest that it did not choose to include an order of rejection of plaint falling likewise within the definition of decree. This again is a further indication that orders which are deemed to include in decrees under Section 2(2) of the C.P.C. are not within the ambit of this provision save, such of the orders as are pecifically mentioned in the provision. In other words, for the purpose of this provision the meaning of the order has been extended only to that extent and no further. It it not obvious how a different con-clusion can follow from the above premises. To my mind, it is clear beyond per adventure that this provision as its language clearly indicates is intended for memoranda of appeals from orders and the legislature wanted to include in that term also the orders under Section 47 and Section 144 C.P.C. which, unless specifically mentioned so, would not have come within its ambit as they are indeed decrees within the definition of the Civil Procedure Code, which definition the Act has adopted. It is only by, reason of the context created by express reference to them that orders under Section 47 and Section 144 C.P.C. have been taken out from the definition of decrees for purpose of court fee under this provision and have been included in the orders.

26. Even so, it is argued that the term 'order' is not used in its technical sense in the Act but as a term of wide amplitude covering orders of every kind, even though such orders may be within the definition of a decree under Section 2(2) C.P.C. In this connection attention is inivited to the term 'order' used in Section 48 ox the Act and also to the decision in Dodla Malliah v. State of Andhra Pradesh, : AIR1964AP216 . We may read here Section 48 which is as under:

''48. The fee payable under this Act on a memorandum of appeal against an order relating to compensation under any act for the time being in force for the acquisition of property for public purposes shall be computed on the difference between the amount awarded and the amount claimed by the appellant.'

This Section corresponds to the old Section 8 and the language used in both is practically the same. It treats the award in compensation cases as an order and makes specific provision for court fee payable on memorandum of appeal from such orders. Indeed the question of court fee on such cases arises only at the stage of appeal alone. It is urged if the legislature intended to use the expressions in the same? sense as in the Code of Civil procedure it would not have treated the award as an order in this section, but only as a decree. Concerned as Section 3 of thf Act is with the expressions as used in Civil Procedure1 Code and not in any taws other than specified in that provision, in the absence of any context in the definition in Section 2(2) C. P. C. itself to bring award within its ambil, it is not easy to see how such a contention can at all be tenable. If an award has been deemed to be a decree within the meaning of Section 2(2) of C. P. C for purposes of appeal it is only by reason of a provision enacted in a special Act viz., the Land Acquisition Act, to which Act Section 3 bears no reference The reasons for that provision besides seems to be rather historical.

It may he seen that Section 54 of the Lund Acquisition Act as it stood previously gava no right to carry the award to the Privy Council in appeal. In fact the Privy Council in Rangoon Botatoung Co. Ltd. v. Collector. Rangoon, 1912-39 Ind App 197 (PC) made it abundantly clear that it gave only a limited right of appeal from the award of the Land Acquisition Court to the High Court and gave no further right to carry the matter to the Judicial Committee as if it were a decree of the High Court made in the course of its ordinary jurisdiction. This pronouncement was responsible for subsequent amendment in S, 54 providing for a second appeal against the decision of the High Court, formerly to the Privy Council and now to the Supreme Court and also enabling the adjudications of the Land Acquisition Court executable as decrees. The amendment of Section 54 to that effect necessitated further the addition of sub-section (2) to Section 26. making it clear that the award of the Land Acquisition Court shall be deemed to be a decree, and the reasons given therein would be a judgment.

26A. Thus it would appear that the award was deemed to be a decree by reason of the provision made in the Land Acquisition Act and not by reason of the very definition in the Civil Procedure Code. If therefore, the Act in Section 48 used the term order which it would ordinarily be in terms of the Civil Procedure Code as it is a formal expression of a decision of civil court it would mean no inconsistent with the language and purpose of Section 3. As already observed the Act consistent with the provision in Section 3 expressly or by necessary implication could give a different, or extended or narrow meaning assigned to the terms in C. P C. If it has made a special provision for memorandum of appeals against awards treating them as appeals against orders, it cannot be said by reason thereof that the legislature notwithstanding its declaration in Section 3 chose to depart from it and used the word 'order' loosely throughout the provision? of thr Act.

Section 48 is a special provision intended for specific cases. If the word 'order' has been assigned extended meanina for the purpose of that provision or even used loosely as determined by its context it does not follow that that word has a similar extended or other meaning in other sections even though then may be no such context. It is plain to my mind that the argument based on Section 48 cannot advance the case of the appellants that the order referred to in Article 3, Schedule II of the Act must cover also orders deemed to bo decrees within the meaning of Section 2(2) besides those specifically mentioned therein. No such conclusion can follow even from the observations in : AIR1964AP216 (supra). Thereafter dealing with the amendment in Section 54 and consequent addition of sub-clause (2) to Section 26 of the Land Acquisition Act the learned Judges observed that 'an award of a Land Acquisition Court in fact is not a decree but is deemed to be a decree and the reasons in the award a judgment. Having regard to the implication of a deeming provision they further said that 'it is a decree for purposes of appeal to the High Court'. Then again OTI a consideration of the Full Bench decision of tha Madras High Court in Manavikraman v. Collector of Nilgiris, 41 Mad 943 : (AIR 1919 Mad 626) (FB) they observed that 'the adjudication of the Land Acquisition Court is an order of a civil court for purposes of appeal under Section 54 of the Land Acqui -sition Act and the provisions of the Civil Procedure Code. That being so it is an order within the meaning of Section 48 of the Court-fees Act.''

On a review of several cases decided by various High Courts they said thus:

'We follow the principle laid down in these two cases and held that the legislature with a view to give a wider ambit used the word 'order' in Section 8. Court-fees Act 1870 as well as Section 48 of the Act so as to include orders relating to compensation which are not decrees but which are nonetheless appealable.'

It follows from the observations referred to above that the legislatures in order to give a wider ambit to the word award used the word 'order' which indeed it was, being a formal expression of a decision of the civil court and which by reason of deeming provision in Section 26 of the Land Acquisition Act became a decree for purposes of appeal under Civil Procedure Code. These observations do not render assistance to the theory that the word 'order' wherever used in the Act is loosely used and has to be widely construed irrespective of the context. It is but fundamental that no case can be brought within the ambit of any provisions unless it comes squarely within it. If the language is clear there is no scope for construction at all. Such cases alone and no other as are well within its language can be held to come within its scope. In this premises, I am unable to agree with the contention that the memorandum of appeal from the order of rejection of plaint, is within the ambit of Article 3 Schedule II of the Act. I am fortified in my conclusion by the dicta in various decided cases dealing with Article 11 of Schedule IT of the Court-fees Act of 1870 which is in pari materia with the first part of Article 3. Schedule II of the present Act. The latter part viz.. 'not otherwise provided for' did not find place therein. That question however falls for consideration only if the first condition it satisfied. The cases that we propose to consider are of various High Courts. Not all the States had included orders under Section 144 in the provision. Calcutta cases deal with a provision which included only orders under Section 47 while the cases of the other High Courts deal with provisions in pari matsria with the Madras Law.

27. The earliest of the Madras decisions is of Schwabe, C. J. in S. R. No. 1923 of 1923 (Mad) (unreported) an extract whereof finds place in Court-Fees and Suits Valuation Acts by Sri R. Satyamurty Aiyar, (3rd edition) at page 423. There, the suit was brought in the Court of the Subordinate Judge. The Subordinate Judge found that the Court fee paid was inadequate and called upon the plaintiff to pay the full amount. On failure to comply with the same, the learned Subordinate Judge rejected the plaint. The plaintiff appealed. The question arose what was the court-fee payable. Two points were taken firstly it was argued that the memorandum of appeal in that case fell within Schedule II, Article 11 of the Court-fees Act of 1870 as amended by Madras Act V of 1922. The appeal being an order presented to a High Court, it was said, it carried a fixed fee of Rs. 20. Secondly it was urged that even assuming that it was a memorandum of appeal from a decree either the subject matter in dispute in appeal is incapable of valuation in which case a fixed court fee under Schedule II. Article 17B would be payable or being an appeal not otherwise provided for Article 1 Schedule 1 would be attracted in which case ad valorem court fee as due thereunder would be payable.

The learned Chief Justice after considering the definitions of 'order' and 'decree' under Section 2(14) and Section 2(2) of the Civil Procedure Code observed thus :--

'I think that the Court-fees Act, which Itself contains no definition of either the word 'order' or the word decree must have meant to follow the definition contained in the Code of Civil Procedure and I am strongly confirmed in this view by the words of Article 11 of Schedule II which include in the word 'order' orders determining questions under Sections 47 and 144 of the Code of Civil Procedure. These are orders and it is quite unnecessary to say that the words 'memorandum of appeal when the appeal is from an order', are to include these orders if they would be included without their being specifically mentioned; and when one looks to find why it is that the Court-fees Acf has gone out of its way to say that 'order' in Article 11 of Schedule II shall include two particular named orders, one finds the solution very ready to hand by looking at the definition of decree in the Civil Procedure Code because that definition deems as decrees not only orders rejecting plaints but also orders under sections 47 and 144, the very things referred to in Article 11 of Sch IT of the Court-fees Act: and it is to be observed, that though those two are included in the word order no doubt because they would otherwise be excluded as being things to be reckoned amongst decrees and not amongst orders, an order rejecting a plaint, which is to be deemed to be a decree under the Code of Civil Procedure is not included under Article 11 of Schedule II of the Court-fees Act.'

It is obvious that in the view of the learned Chief Justice, Article 11 of Schedule II had no application to memorandum of appeal against an order of rejection of plaint.

28. Then he considered the case on the basis that it is a memorandum of appeal from a decree. The question posed was 'what then was the subject-matter in dispute?', for that is the element which governs the fee payable. It was represented on behalf of the Government that the subject matter in dispute was the subject matter of the entire suit. The learned Chief Justice did not accept this contention and he remarked that it would be strange that if the suit were heard and decided on merits and the aggrieved party carried the matter in appeal on that part of the judgment which went against him, he will have to pay court fee on the value of that item in respect of which he was appealing 'while if his case had not been heard at all, and the question was about the maintainability of the suit, in order to come up to the High Court to ask that the case should be heard, he would have to pay a court fee equal to what he would have had to pay a court fee equal to what he would have had to pay if he had lost the whole.' Such a situation, the learned Chief Justice, observed was far from the minds of the legislature and there was nothing in the Act that would lead to a different conclusion. According to him what is meant by 'subject matter in dispute' is the subject matter in dispute In appeal so far as that case was concerned was the amount 'f stamp in dispute between the parties.

In support of this conclusion he relied on an old case Durga Prasad v Raghubar Dayal, 1882 All WN 244 and differed from the view taken in Surendra Narain Sinha v. Habibur Rahman, 30 Ind Cas 379 = (AIR 1016 Cal 276) which gave no reasons for the decision. The learned Justice did not accept the contention that the subject matter in dispute in that case was incapable of valuation so that the provision of Schedule II, Article 17B which directed payment of a fixed stamp may be attracted The only Article that was attracted was Schedule T Article 1. As no provision was made in relation to such suits, other than Schedule I, Article 1, he directed payment of the difference of the court fee demanded by the lower court and that paid there.

Of course the Nagpur court in Govinda v. Bansilal, AIR 1927 Nag 100 held thai the relief in such cases was incapable of valuation and the case had to fall under Schedule II, Article 17. But in a latter case in Harihar-rao v Sahu Bai, AIR 1927 Naff 2Rfi C258) the same court held that the fee payable on the memorandum of appeal in such cases was ad valorem on the amount arrived at. In AIR 1935 Nag 83 (FB) (A Full Bench case of that court) Grille. J C. and Pollock. A. J. C. were of the view that where there was failure to pay additional court fee demanded and as a result the plaint was rejected and an appeal was preferred therefrom, the order rejecting the plaint being a complete final determination of the rights of the parties the subject matter of the appeal is the same as the subject-matter in the whole suit and the same court fee was payable on the appeal as on the plaint. Niyogi, A. J, C. differed from this view on the ground that rejection of plaint means only refusal to entertain the suit and in no sense implied the conclusive determination of the rights of the parties with regard to the matters in controversy in the suit. If there was any conclusive determination it was to the effect that the plaintiff is not entitled to bring his suit on a stamp of the value less than what has been found by the court. So then, the matter in dispute can be whether the appellant was liable to pay court fee demanded of him or not and the court fee should be paid accordingly.

29. The Madras High Court in AIR 1938 Mad 498 endorsed the view of Niyogi A. J. C. that rejection of plaint in no case is a conclusive determination of the rights of the parties. Assuming that rejection of plaint amounts to a decree within the meaning of the Code, the learned Judges observed that the question that still remains to be determined would be what is the subject-matter in dispute. The learned Judges accepted the view of Schwabe. C. J., that tha subject matter in dispute would be tha amount of stamp in dispute between tha parties. Venkata Subbarao, J., who delivered the opinion of the court further remarked that the possible argument that the subject matter is incapable of valuation and that therefore Schedule II, Article 17B applied may at once be dismissed.

30. Before I proceed further J may read here Article 1, Schedule I. and also Article 17B which was introduced by the Madras Amending Act of 1922. Thev are as below:--

Article 1, Schedule 1- Proper fee.Number.1 Plaint or written statement pleading a get off or ... ...counter claim or memorandum of appeal (not otherwise) provided for in this Act presented to any Civil or Revenue Court except those mentioned in Section 8.To ascertain the propet fee leviable on the institution of a suit see the table annexed to this schedule. Article 17-B Schedule II.17-B. Plaint or memorandum of appeal in every suit When the plaint is presented towhere it is not possible to ascertain at a money value or the memorandum of appeal itthe subject matter in dispute and which is aot other- against the decree of--wise provided for by this Act.A Revenue Court, A Dist. Munsiff Court, or the City Civil Court. ... Rule 15/. A Dist Court or a su -Court. ... ... Rs. 100/.

Whereas both the provisions are applicable to memorandum of appeal as well, and are attracted when they are not otherwise provided for, the distinction between the two lies in the fact that the latter is attracted only if the further condition that the subject matter in dispute is incapable of being estimated at a money value is satisfied. Indeed that is a sine qua non for the application of Article 17-B and further it should also be not otherwise provided for if it is capable of valuation certainly the case would fall under Article 1, Schedule 1 of the old Act provided of course it is not otherwise provided for (i. e.) otherwise than by the provision itself.

31. Now coming back to the authorities on the question of the correct court-fee payable on a memorandum of appeal from an order under Order VII Rule 11(b) and (c) while there is consensus of opinion that Article 11 Schedule II is not applicable to such cases, there is indeed some divergence of opinion in the courts in India on the sole question whether the court fee it payable on the difference in the two fees that is, the fee demanded and the fee paid or on the entire value of the subject-matter of the suit. The Madras cases as already noticed, approve of the first view. The view taken by the Allahabad High Court also is the same as in 1882 All WN 244 to which reference has been already made.

32. In Amartalal Kumar v. Sisir Kumar, AIH 1926 Cal 427. however, the Calcutta High Court took a different view and said thai in cases where the plaint was rejected for insufficiency of court-fee and the plaintiff preferred appeal valuinS it in the samp way as in the plaint, the Court was bound to go into the question of the true value of the properties and without going into the question it could not hold that the appeal was insufficiently stamped. Thus the court fee payable was on the value of the properties in the suit.

33. That was also the view in Raghu-nath Ganesh v. Gangadhar Bhikaji. (1886) ILR 10 Bom 60. But the Punjab, Nagpur and Patna cases fall in line with the Madras cases that the court-fee assessable is the difference between that held by the Court to be paid and that paid by the plaintiff. The Punjab High Court in Udav Chand v. Mohanlal, in fact referred to this divergence of opinion and said that that court approved of the view taken by the Madras, Patna and Nagpur High Courts that the proper court-fee payable in such an appeal was ad valorem court fee being the difference between the court fee as paid by the plaintiff and that found by the lower court as payable. Then again in Atma Singh v. Mohan Lal, the same High Court reiterated this view citing with approval the views expressed by the NaRpur, Patna and Madras High Court's. In a Full Bench case of the Nagpur High Court in AIR 1949 Nag 1 (FB), where the moot point was whether ad valorem court fee has to be paid on the full value of the plaint or on the difference between the court fee paid and the court fee demanded, the learned Judges held that the court fee must be paid on the amount representing the difference between that paid and the amount demanded in the lower court. Thev observed further :--

'We have no doubt in our mind that under Schedule 1 Article 1. Court Fees Act the court fee must always he ad valorem on the subject matter in dispute unless it is incapable of valuation. In other words, the court fee has always to be ad valorem unless for the special reasons given in Schedule 1, Article 17. the appeal can be brought on fixed fee. . .'

34. Similarly in Gorakh Sahu v. Sheo Nandan Singh, AIR 1939 Pat 571 a Bench of the Patna High Court held that in cases like these the court fee should be ad valorem and must be the difference between the value of the stamp on the plaint and the value of the stamp demanded bv the Subordinate Judge.

35. It must be remembered that nune of these cases approved of the contention that court fee in such cases was payable under Article 11, Schedule II of Act. 1870. All these indeed, were cases in which the Question of rejection of plaint on the grounds slated in Clauses (b) and (c) of Order VII. Rule 11 did arise and not on grounds in Clause (a) or (d) with which we are now concerned. The only case that dealt with this aspect, however, was . That was a case where the plaint in a suit to recover damages of Rs 10,000 for malicious prosecution had been rejected under Order VII Rule 11(a) C. P. C. The memorandum of appeal was filed with a court fee stamp of Rs 2 instead of Rs. 475 on Rs. 10,000 Relihance was placed on Schedule II, Article 11 of the Court-fees Act for the contention that the fixed court fee paid was sufficient. The learned Judges held that the order being under Section 2(2) of the Civil Procedure Codo which is deemed to be a decree it would not be covered by Schedule II, Article 11. Then reliance was placed on the Full Bench decision of the NaRpur High Court in AIR 1949 Nag 1 (FB) (Supra). Wanchoo C. J.. (as he then was) who delivered the opinion of the Court said that -

'We are not concerned here with a case where the plaint has been rejected on the ground of deficiency in court fees not having been made good and do not express any opinion on the question as to how a memorandum of appeal in such a case should be valued. But this decision clearly shows that appeals from orders rejecting plaints under Order VII, Rule 11 are covered by Schedule I, Article 1 of the Court Fees Act and not by Schedule II, Article 11 as contended on behalf of the appellant.'

Finally the learned Chief Justice reached the conclusion that an order rejecting a plaint under Order VII, Rule 11 amounts to a decree and court fee has to be paid ad valorem under Schedule I, Article 1 and in that case the valuation of the memorandum of appeal should only be the valuation in suit itself, namely Rs 10,000. and the appellant has therefore to make good the deficiency amounting to Rs. 475/-.

36. It follows from the above discussion that there is a large consensus of judicial opinion that memorandum of appeal against an order of rejection of plaint under Order VII, Rule 11 C. P. C. is not governed for purposes of court fee by Schedule II, Art, 11 of the Court Fees Act of 1870 which corresponds to Schedule II, Article 3 of the present Act. This view in my judgment is unexceptionable on the clear language of the provision. Similar is the consensus of opinion that memoranda of appeals against order of rejection of the plaint under cls. (b) and (c) of Order VII, Rule 11 C. P. C. are assessable to ad valorem fee under Schedule 1 of Article 1 of the Act of 1870. No exception can be taken to this view either for the court fee must be assessable ad valorem on the subject matter of dispute in appeal which is capable of valuation.

However, in the changed state of law we have to ascertain what is the corresponding appropriate provision governing such cases. There is some divergence of views as to what exactly should be regarded ths subject-matter in dispute on appeal in such cases' whether it should be the subject-mat-ter of the suit itself on the ground that the court is bound to 20 into the question of the true value of the properties to determine what exactly is the full court fee payable or should it be mere difference of value or amount as evidenced bv the rival contentions to which alone the dispute is confined in appeal. We have noticed Madras. Nagpur Punjab and Patna High Courts have subscribed to the latter view on grounds which I feel are strong and must, in my judgment prevail. There is however, paucity of case law in relation to rourt fee navable on memorandum of appeal from the order of rejection of plaint on ground shown in Clauses (a) and (d) of Order VII. Rule 11 C. P. C. The only case cited is of the Rajasthan High Court. That is a case where the plaint was rejected under Clause (a) of Order VII, Rule 11 C. P. C. That case also takes the view that Schedule II, Article 11 is not the relevant article. The appropriate article according to it even for such cases is Schedule 1, Article 1 and the valuation of the memorandum of appeal can only be the valuation of the suit itself.

37. This in short is the state of law as determined by authorities as it existed prior to the advent of the present Act. The old Act on which the decisions are based is no longer in force in this State. The matter has, therefore, to be decided in the light of the provisions in the new Act. Of course if there are parallel provisions we may take full advantage of the cases cited above. The present Act, as a consolidating and amending Act, replaces the old Act of 1870 which had outlived its time. No doubt attempts were made to keep it in tune with the needs of the day, by making certain amendments therein from time to time. But the obscurity of its draftsmanship and the rapid growth of legislation both in variety and complexity and demand of times rendered it necessary to give reorientation to the laws on court fees and suits valuation. At long last the Madras and the Andhra States came with fresh enactments in the years 1955 and 1956 respectively. The object of the Act evidently is to lay down rules for collection of fees having in view that apart from the fact that it furnishes sufficient income to defray the expenses of judicial administration it acts as an effective check on the unnecessary and vexatious litigation.

There was indeed a time where no institution fee was ever paid. But those are the days of remote past where the State having regard to the size of judicial establishment could with little difficulty defray the expenses without any institution fee. The need for institution fee was felt in the case of civil suits for the first time in the year 1795 and it was in fact levied under the Bengal Regulation 38 of 1795, of course, not as a source of revenue but for.purposes of preventing vexatious litigation. However, the idea of furnishing source of public revenue soon crept in from the vear 1797. From that time onwards there were several regulations which, in quick succession levied court fee with that object. The idea of source of public revenue tended to develop with the result that with each enactment the rate increased and the amendment carried on in the previous Act had also that set purpose in view. The present Act provides for fees which are sufficiently high especially at certain levels. It is rightly said that the court fee under the present Act which has grown in volume in every direction is the heaviest in India.

38. In this Act of course serious attempt has been made for rationalisation of law relating to court fees and suits valuation and organising the method of payment on a more realistic basis. It is divided into VII chapters. Chapter IV prescribes the method of computation of fee. It deals with various classes of suits independently under separate provisions. There is also a residuary provision relating to suits not otherwise provided for. One characteristic feature of this Act is that provision is made for payment of fees both by the plaintiff and also the defendant to the extent they seek and obtain relief. Further in fixing not on the mere form but on the substance of the pleadings and memoranda of appeal the fee payable is in proportion to the value of the subject matter in dispute. The court fee to be paid is either ad valorem or fixed. Ad valorem fee is made to depend on the value of the subject matter and care has been taken to see that the valuation is not left to the arbitrary choice of the party. Fixed fee is prescribed in certain specified classes of suits. All these are no doubt consistent with the basic principles of the old Act and the law declared by the courts from time to time. If there are improvements in the present Act they seem to have been warranted by the needs of the time and the growth of litigation ever since.

39. I now propose to notice some of provisions of the Act so far as it is necessary for our present purpose. Section 19 of the Act says that the fee payable under the Act shall be computed in accordance with the provisions of chapters IV, VI and VII and Schedules I and II. Sections 20 to 46 relate to the computation of the fee for various categories of suits and Section 47 is a residuary provision. The fee prescribed is either ad valorem on the value of the subject matter or a fixed fee. Section 20 relates to suits for money. It was under this provision that the suits out of which A. A. Oa in question arise have been valued for purposes of court fee. Section 24 is the provision relating to declaratory suits. The suit out of which S. R. No. 37685 of 1965 (unnumbered A.A.O. in question) arises has been valued under that section. This Section deals with declaratory suits whether with or without consequential relief. Clause (d) thereof says that in cases other than those in Clauses (a) to (c), whether the subject matter of the suit is capable of valuation or not, fee shall be computed on the amount at which the reliefs sought for is valued in the plaint or at which such relief is valued by the court, whichever is higher.

40. As already said the fee payable under the Act is either ad valorem or fixed. Fixed fee is prescribed in classes, of suits mentioned in sections 34(2), 36(1). 38 (2), 43, 44 and 45 (1) and 47 of the Act. Section 38 (2) deals with suits to set aside any summary decision or ordT of a civil or revenue court, other than those mentioned in Section 38 (1). If the subiect matter of such suit has a market value, fee shall be computed on one fourth of such value and in other cases fee shall be payable at the rates specified in Section 47. Section 39 dealing with suits for specific performance in Clause (e) says that in cases other than mentioned in Clauses (a) to (d) of the Section where the consideration for the promise sought to be enforced has a market value that a fee has to be computed on the market value of the movable property or three-fourths of the market value of the immovable property and where such consideration has no market value, at the rates specified in Section 47. I have referred to the wording of Section 38 (2) and Section 39 (e) because I thought it necessary for appreciating and understanding the meaning and implication of Section 47 which, in my opinion, is material for our purpose inasmuch as it is a residuary provi-sion governing all suits which are not otherwise provided for and in that sense corresponds to Article 1 of Schedule I and also to Article 17B of Schedule II of the previous Act. Unlike Article 1 of Schedule I it IB intended to cover cases which are not capable of valuation also as the clear language of Section 86 (e) and Section 38 (2) would pointedly signify. Section 47 read thus:

'47. Suits not otherwise provided for-

In suits not otherwise provided for, fee shall be payable at the following rates:

41. When the amount or value of thesubject matter in dispute-

(i) is less than Rs. 3000 ... rS. 50/.(ii) is not less than Rs. 8,000but does not exceed Rs. 5,000 .- Rs. 100/-(iii) exceeds Rs. 5,000 but does ...not exceed Rs. 10,000 ... Rs. 200/.(iv) exceeds Rs. 10,000 ... Rs. 300/.

Then Section 49 relates to appeals. It reads thus:

'49. Appeals -- The fee payable in an appeal shall be the same as the fee that would be payable in the court of first instance on the subject-matter of the appeal.

Provided that, in levying fee on a memorandum of appeal against a final decree by a person where appeal against the preliminary decree passed by the court of first instance or by the court of appeal is pending credit shall be given for the fee paid by such person in the appeal against the preliminary decree.

Explanation (1) -- whether the appeal is against the refusal of a relief or against the grant or the relief, the fee payable in the appeal shall be the same as the fee that would be payable on the relief in the court of first instance.

Explanation (2)... .Explanation (3).....

Explanation (4) -- Where the relief prayed for in the appeal is different from the relief prayed for or refused in the court of first instance, the fee payable in the appeal shall be the fee that would be payable in the court of first instance on the relief prayed for in the appeal.

Explanation (5). ....

Then there are sections 6 (4) and 48, also relating to appeals. We are concerned with Section 49 alone which I may deal with at some length at a later stage. Section 50 of the Act relates to the value for purposes of determining the jurisdiction of courts. In its sub-clause (2) referring to suits on which court fee is payable at fixed rates it inter alia says that if it is not possible to estimate at a money value, the amount stated in the plaint will be the value for purposes of jurisdiction. Sec-tion 77 is one of the general sections relating to the power of the Government to frame rules. The Government does not appear to have made any rules so far nor laid them before the legislature as contemplated by that section. These are the various relevant provisions in the different chapters of the Act.

42. Then there are schedules. Schedule I relates to ad valorem fees. Article 1 (c) thereof takes in all memoranda of appeals presented to any court whether from decrees or orders unless they are within any other specific provision. Article 4 is the only other provision in that Schedule which relates to memoranda of appeals but it is confined to appeals against orders under the Indian Succession Act. Schedule II is concerned with fixed court-fee. Article 1 thereof in its sub-clauses (ii), (iv) to (vii) refers to memoranda of appeals under various special acts. Article 3, as we have already noticed, relates to appeals from orders not otherwise provided for and Article 4 to appeals under Section 39 of the Arbitration Act. These are the only provisions in relation to memoranda of appeals in the Schedule.

43. It may be seen, whereas Article 1 in Schedule I of Act 1870 refers to memoranda of appeal not otherwise provided for in the Act, and Article 17 and Madras Amendments to the said article viz.. Articles 17-A and 17-B of Schedule II which provide for fixed court fee, refer to the memoranda of appeal in some specified suits (e.g.) suits for setting aside (a summary order?): declaratory suits and suits for setting aside award and also memorandum of appeal in any suit where it is not possible to estimate the money value of the subject-matter in dispute and which is not otherwise provided for there are no corresponding provisions in the schedules to the present Act. Instead we find such provisions in the various sections of the Act., i.e., sections 38, 43. 44. 24, 37, 25 and . The basis of the computation of the court fee and rates also differ. There are, besides, various provisions in the present Act which were not found in the old Act.

44. Section 49 which is extracted above, lays down the general rules that fee payable in an appeal is the same as the lee that would be payable in the court of first instance on the subject matter of the appeal. This principle enshrined in the Section subject to the proviso mentioned therein has been explained in five specific clauses therein. Explanation (1) removes all possible distinction that may be made on the basis of the refusal of relief or grant of the relief to a plaintiff or defendant. The court fee in both cases is the same. Explanation (2) refers to the circumstances where the costs are treated as the subject matter of appeal and directs payment of additional court fee therefor as well. Explanation (3) relates to Interest accrued due during the pendency of the suit till the date of the decree. Explanation (4) which is material for our purpose says that where the relief prayed for is different from the relief prayed for or refused in the court of first Instance, the fee payable in the appeal shall be the fee that would be payable in the court of first instance on the relief prayed for in the appeal. Explanation (6) relates to the determination of the value of the subject-matter of appeal for purposes of computing or determining the fee payable. It further says that the market value of the appeal is the same at on the date of presentation of the plaint. As already said it is clear from Section 48 that the fee payable on appeal is the same as in the court of first instance on the subject matter of the appeal. The subject matter of the appeal may not be exactly the same as the subject matter of the suit. The fee has to be paid having regard to the relief or reliefs sought for in appeal. Where the relief sought for is different from . what it was In the suit, the value thereof shall be computed having regard to the court fee payable on that part of the relief in the suit itself. Above all it is the substance of the relief or reliefs manifest from the memorandum of appeal and not mere form in which it is expressed that should determine the relevant provision by which it is governed for purpose of court fee.

45. It is plain that the schedules are not exhaustive of the provisions relating to memoranda of appeals. Various sections in the Act are, therefore, necessarily to be looked into. In fact Section 19 has made it abundantly clear that computation of fee should be made having regard to chapters IV. VI and VII besides the Schedules I and II. Section 49 which embodies the general principle is specific that it is the subject matter of the appeal that is to be considered in determining the fee payable in memorandum of appeal. That is the principle which was of universal application even under the old Act.

I may in this behalf refer to observations of Kumaraswami Sastri J.. In He Parkodi Achi, ILR 40 Mad 246 :(AIR 1622 Mad 211). In appeals where the value of the subject matter in dispute is or can be determined the learned judge said that the court fee payable on the memorandum of appeal must be calculated on the value of the subject matter. The test should be what is the value of the relief granted that is sought to be got rid of. The learned Judge was concerned there with a suit for delivery of possession against the vendee from a widow questioning the validity of the sale deed executed by her in his favour and also for mesne profits and costs. The suit was valued at Rs. 2,300/- on the finding reached that there was legal necessity only for a sum of Rs. 3881-4-0 out of a consideration of Rs. 8000/- set out In tha sale deed, decree for possession on payment of Rs. 3881-4-0 was passed. That decree was sought to be got rid of by way of appeal. The learned judge, after referring to various authorities on the question came to the conclusion, that the value of the appeal is not in all cases the value of the suit as originally filed but the value of relief granted. In that view of the matter he directed payment of court fee on the memorandum of appeal on the amount which the respondent was directed to pay and which he seeks to avoid, namely, Rs, 3881-4-0.

I respectfully agree with this view as It correctly lays down the law. It is quit in tune with the current of authority in that behalf. Explanation (4) to Section 49 of the Act we have noticed, makes it abundantly clear that if the relief prayed for in the appeal is different from the relief asked for or refused in the court of first instance the fee payable in the appeal shall be the fee that would be payable in the court or first instance on the relief prayed for In the appeal. It is therefore, the relief or reliefs capable of valuation and sought for in the appeal which have to be kept in view for determining the subject matter of the appeal. Indeed the subject matter of the appeal would consist of all the reliefs that the appellant or respondent, as the case may be, seeks for. Some of those reliefs may be different from the reliefs in the suit, as those reliefs depend on the way in which the case is disposed of. The object of an appeal or memorandum of objection is always to get rid of only such order as is prejudicial to the appellant or respondent as the case may be. It is therefore not so much the subject matter in the suit as the subject matter of appeal that is pertinent in matters of court fee in appeal. Of course, if the subject matter is the same, court fee will be the same. If the appeal is filed only against a part of the subject-matter of the suit which can be separately valued to that extent alone the fee is payable.

In the same way if the appeal is from a decree which does not substantially grant the same reliefs as prayed for in the suit but such other reliefs as the court may deem proper on the facts and circumstances of the case, this relief being different from what has been prayed for in the suit, the fee in the appeal shall have to be computed on the value of that relief and the value of that relief would be the same as would have been if that relief was sought for in the suit itself. If the relief prayed for is incapable of valuation and no court fee is fixed by law apart from the value of the subject matter in dispute that or if relief is so inseparably connected with the subject matter of the suit, that such a relief cannot be granted without considering the subject matter of the suit itself, the value of the subject matter in dispute in that event cannot but be the value in the suit itself. That seems to.be obvious from the provisions of tection 49 judged in the light of the scheme of the Act. In this premises it is now to be seen what is the correct fee payable in these appeals in question. As I have already said, we have to look for this purpose firstly to the scope and effect of the memorandum of appeal. It is not so much the form but substance that is material for purposes of determination of court-fee. It is to be ascertained what exactly is the subject matter in dispute in appeal and what is the value thereof. What the appellant in S. R. No. 37685/65 seeks to avoid is the order of the trial court rejecting the plaint under Order VII, Rule 11 (a) CPC which was made on the ground that the plaint does not disclose any cause of action. It is manifest that the appellant therein prays that the order of rejection of the plaint be set aside and consequently his suit be directed to be heard and disposed of according to law on merits. That is the relief that he seeks and no further in this court. The prayer is not that the suit should be decided on merits in this court. Of course, the suit as filed in the court below, was one for possession of immovable property against a vendee on the basis that the sale deed executed by the deceased in favour of the vendee was void in law and the court fee in the court below was paid in accordance with the provisions of Section 24 of the Act. the value of the subject matter of the suit determined thereunder being Rupees 6000/-.

Now, whereas the relief claimed in the court below was for a decree for declaration with consequential relief; the relief in this appeal is confined only to setting aside the order of rejection of plaint. Evidently the appeal is not against dismissal of suit on merits so that the whole subject matter of the suit may be in issue in this appeal. There is a basic difference between the dismissal of a suit and rejection of a plaint. In the latter it is permissible to bring a fresh suit as though no such suit was filed before. It is also clear that the relief prayed for in this appeal is necessarily limited in scope when compared to that asked in the suit. The question then is what is the value of this relief which forms the subject matter of his appeal and what should be court fee payable and whether there is any specific provision for suits with such a relief. It seems to me plain that a suit with such relief is not amongst those suits which may come within any of the sections from sections 20 to 46 in the Act.

46. It is argued that the relief claimed is a declaratory one inasmuch as in substance the appellant herein prays that his suit may be received, heard and disposed of on merits and that it must, therefore, fall within Section 24 (d). Section 24, as already noticed, is concerned with a suit for declaration with or without consequential relief not falling under Section 25. Clause (d) thereof is a residuary Clause applicable to suits not covered by sub-clauses (a) to (c). It provides for the computation of fee at the amount at which the relief sought is valued in the plaint or at which such relief is valued by the court, whichever is higher irrespective of the fact whether the subject matter of the suit is capable of valuation or not. It is difficult to agree that the relief claimed in this appeal can come under Section 24 (d). In other words, an appropriately framed suit with the relief of this kind cannot fall within the ambit of Section 24 (d), as obviously enough the relief prayed for is not declaratory but that the order of rejection be set aside. Of course if this relief is granted the suit has to go back to be tried and disposed of on merits. That is but consequential on the grant of relief prayed for. The case cannot on that account come directly within Section 24 (d).

46-A. Then the question is whether the suit of the kind i. e., where such relief is prayed for comes under Section 38. It is not easy to conclude that the relief of the kind is virtually a relief for setting aside a summary decision or order of a civil court within the meaning of Section 38. Section 38 (1) deals with suits to set aside attachment etc., of any immovable or move-able property or of any interest therein. Sub-section (2) refers to any other summary decision. The term 'other' must be construed on the principle of ejusdem generis. In any event, rejection of plaint cannot be said to be a summary decision as if is a decree and an appeal is of right open against the said decision. This expression, in fact, has been interpreted in a Full Bench case in Maharajah Dhera Maha-tab Chand v. Bacha Ram Hazra (1884) 13 Suth WR 74 (FB), where Couch C. J. while expressing the difficulty in determining the exact meaning of 'summary decision' however observed that it is a decision of a court which hear? and determines the matter but does not finally conclude the parties. He further said: 'It may also be that by a summary proceeding is meant where no appeal lies, and where the decision of the tribunal which hears and determines the matter is final. 'It is in this view of the matter that I have said that it is difficult to conclude that the order of rejection of plaint ia a summary decision within the meaning of that term under Section 38 (2). Even if It were so the court-fee calculable would be at the rates specified in lection 47 itself which is a residuary provision. Barring these no other provision from Section 20 to 46 can come up for consideration. It is clear that none of those provisions has any application to a relief of this kind. It necessarily follows that it must then come under the residuary provision, viz., Section 47.

That provision again refers to the amount or value of the subject matter in dispute, but obviously enough it is not possible to estimate at a money value the relief of this kind. On the face of it, it is Incapable of valuation. Should it then ba assumed that it is out of the scope of Section 47 as well and no court fee is payable us there is no provision in the Act which directs so?. If we look to the various provisions of the Act, it would be clear beyond shadow of doubt that Section 47 is intended to cover suits whether capable of valuation or not provided only that they are not otherwise provided for. This conclusion must necessarily follow even on perusal of Sections 38 and 39. At the risk of repetition I refer once again to Section 38 (2) which says that in a suit to set aside any other summary decision or order, if the subject-matter of the suit has a market value, fee shall be computed on one-fourth of such value and in other cases, fee shall be payable at the rates specified in Section 47. Likewise Section 39 (o) Fays that in other cases where the consideration for the promise sought to be enforced has a market value fee shall be computed on the market value of the movable property or three-fourths of the market value of the immovable property or where such consideration has no market value, at the rates specified in Section 47. Thus the legislative intent is obvious that Section 47, purporting to determine the fixed rates having regard to the value of the subject matter in dispute has been designed even for suits which are incapable of valuation subject to the only condition that they are not otherwise provided for. Such a conclusion is irresistible on the harmonious interpretation of the various provisions of the Act.

If the case thus comes under Section 47, the question still arises what is the value of the subject matter in dispute in appeal. When once it is clear that the legislature intended that this Section should be applicable alike to cases whether capable of valuation or not if they are not otherwise provided for effect must necessarily be given to that intent by construing the various parts of the provision in a manner as would advance the purpose. The Section no doubt has referesce to the amount or value of the subject matter in dispute. Two things must be borne in mind when we refer to the terms 'value' and 'subject matter in dispute' as used in the Act. The value of the subject matter under the scheme of the Act need not necessarily be actual. It may as well be statutory or even notional. I need not refer to the first two expressions as they are self-evident. So far as notional value is concerned various provisions of the Act bear testimony to the fact that wherever the subject matter is not capable of being estimated in money value, and the statute intended ad valorem fee to be levied, the plaintiff has been given the option to value it. He cannot, however, arbitrarily exercise this choice, for it is always left to the scrutiny of the court. It is open to the COUP to form opinion as to its value and it is the higher value that will be taken into consideration.

We may note in this behalf sections 22 and 24 etc. The Government is given the power to make rules under Section 77 to carry out the general purposes of the Act. But such rules do not appear to have been made so far and this has been observed in various cases of this court. Sunkani Neela-kantam v. State of Andhra Pradesh, (1960) I Andh WR 106 and K. Muthayya v. P. Swarajyam, (1960) 1 Andh WR 350 Section 50 says that if no specific provision is made in the Act or in any other law regarding the value of any suit for the purpose of determining the jurisdiction of courts value for that purpose and value for the purpose of computing the fee payable under the Act shall be the same. Of course this is not a provision for purposes of court fee but only for purposes of jurisdiction. In cases where fixing of valuation is left to the discretion of the party under the provisions of the Act and the party values it for purposes of jurisdiction and does not give any value for purposes of court fee. it must be necessarily implied under the provisions of Section 50 that he intended to give the same value for purposes of court fee. If at all Section 50 has got any relevancy it is only to that limited extent So far with regard to the term 'value'

Then the other fact to be noted is that the expression 'subject matter in dispute' like cause of action must be susceptible of a wider and narrower meaning. While the 'relief may be almost a synonym for subject matter in dispute (in its narrower meaning), the term subject matter in dispute by its own force has a wider meaning. Nothing illustrates this better than Section 47 itself Knowing it for certain that i1 is a provision applicable to both the types of cases, namely cases which are capable of valuation and also cases which are not could it be said consistent with its context that subject matter in dispute therein must in cases not capable of valuation mean only the reliefs claimed in appeal? If so, what could then be the amount and value of this subject-matter in dispute?. To say that the provision is applicable, to cases which are incapable of valuation and to fix at the same time, the standard of assessing the court fee as the amount or value of the subject matter in dispute must, on the face of it, be contradiction in terms. If effect has to be given to the real intent of the legislature this apparent contradiction has necessarily to be resolved by benevolent construction which would advance the cause and suppress the mischief which would otherwise render the provision futile or absurd.

The question naturally arises whether the legislature by enacting Section 47 and providing for the various rates according to the money value, intended that the value of the relief alone would be the test and cases which are incapable of valuation must come in the very first clause, viz., when the amount or value of the subject matter of dispute is less than Rs. 3000/-' Can that expression take in cases of nil value also? If not i. e., in other words If it be construed that it should have some money value and not zero value, then certainly on such literal construction of the provision cases incapable of valuation will not come in. But in the context of sections 38 and 38 as I have already said cases incapable of valuation also do come within this provision. Therefore if the above construction is not acceptable, the term subject matter as used must necessarily have a wider meaning. So then where the relief asked for is incapable of valuation, the value of the property Involved i.e., in relation to which relief is asked for should determine the question of court fee and jurisdiction. Then it is not the value of the relief itself but the value of the suit with which the relief is concerned would determine fee. In that view the subject-matter in dispute for purpose of court fee in cases of rejection of plaint would not be merely whether the order of rejection of the plaint should be set aside which may be the relief prayed for but whether the suit should be directed to be received, heard and decided on merits, so that the plaintiff if found entitled may be granted a decree by the trial court which is the main object of the suit.

Whereas in cases where a suit is partly dismissed or decreed and the appeal is only against that part of the case which is capable of valuation there may be difficulty in holding that the subject matter of appeal is confined to that part and relief claimed, must denote the subject matter in dispute, it is not possible to say with equal precision as to relief being in this oase tantamount to subject matter in other oases especially when relief claimed by itself is incapable of valuation. Indeed as a rule it may not be possible at all to construe mere relief or the very point involved in the case on which the final relief depends, as subject matter in dispute. If a suit is dismissed on ground of limitation or any other preliminary legal ground can it be said that in an appeal against such order of dismissal which is a decree, the subject matter in dispute in appeal for purposes of court fee is only the legal point in dispute or the setting aside of the order based on limitation and the value thereof alone must be the value for purposes of court fee. If the setting aside of the order by itself be the subject matter in disputt Intended by the Court-fees Act it is evidently incapable of valuation. The court fee it not assessable on that basis. It is the subject matter of the suit or the value of the property Involved in the suit which would be material for the purposes though the value thereof may be determined in the manner provided in the Act. It is obvious that in point of fact the relief by itself does not invariably determine the subject matter in dispute for purpose of court fee. The term subject matter employed by the Act, indeed is an expression of wider amplitude. Even in the context that it is used in Section 47 or certain other provisions of the Act,(e. g.) sees. 23(b), 24(d), 26(c), 27, 28 and 29 etc., it has a wider meaning than the relief itself. It is also well settled that it is always iust legitimate and proper to give extended meaning to any expression in a legislative enactment If the context or legislative in-lent so warrants. I may deai with this aspect at a greater length at a later stage in this judgment. For the present my attention is confined to the various possible view on the true interpretation of this provision consistent with the legislative intendment T have already referred to two views.

I may now refer to the third one on which stress has been laid by the learned Government pleader. It was urged that in cases where the subject matter in dispute is incapable of valuation and the court fee has to be paid ad valorem the policy of the enactment seems to be to leave it to the plaintiff or the appellant to give his own valuation subject, of course, to the control of the court and in fact this valuation is not left to the arbitrary discretion of the plaintiff Section 50 further says that the valu-tion for purposes of jurisdiction would be the same as that for assessing the court fee. So then, even if the appellants have given the valuation for purposes of jurisdiction though they may not have given any valuation expressly with regard to court fee by necessary implication it will follow that the value for computing the court fee is the same.

47. Of the three views referred to above, the second seems to my mind, more probable, reasonable and quite in keeping with the legislative intent without straining tht language. It ii obvious that the legislature would not have fixed various rates if it did not postulate that where the reliefs claimed are not capable of valuation, the subject matter in relation to which the relief is sought and which alone is capable of valuation should be taken into account in determining the fixed court fee. If what is asked for is the setting aside of the order of rejection of plaint, the plaint which is rejected being the subject matter in dispute and in relation to which the relief is sought for, the value thereof must determine the rate of fixed court-fee as warranted by Section 47. The relief thus sought for indeed is manifestly inseparably connected with the plaint which is sought to be directed to be received, heard and disposed of setting aside the order of rejection of that plaint. It seems to me plain that in cases of this kind, it is the value of the plaint, or in other words, the value of the suit that should represent the amount or value referred to in Section 47 for determining the court fee. In fact the same is the value stated in the memorandum of appeal for purposes of jurisdiction.

In short it seems to me due effect cannot possibly be given to the provision unless the expression used in Section 47, viz.. amount or value of the subject matter is construed accordingly. It cannot be said that that expression cannot bear such construction, or cannot have that import on a proper construction. T have already referred to the Rajasthan case where such a view has been taken. Of course, that case was decided on the language of a previous law, but the provisions of the oresent Act are more favourable for such a view, the present law, which does not make any specific provision like article 17B of Schedule II in its Schedule nor does it determine any fixed court-fee in Section 47 without reference to monetary value in cases which are not otherwise provided for cannot but lead to this inevitable construction. If the expression 'subject matter in dispute in appeal' is not thus construed, Section 47. so far as reliefs incapable of valuation are concerned, will reduce the legislative purpose ineffective in this behalf and lead to futility and inconsistency with the clear intention of the legislature.

As said by Maxwell on Interpretation of Statutes, 11th Edn Page 6:--

'In construing wills, and indeed, statutes and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnancy or inconsistency with the rest of the instrument in which case the grammatical and ordinary sense of the words, may be modified so as to avoid that absurdity and inconsistency but no further.'

Again at page 7 the learned author said:

'At the same time if the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for purposes of bringing an effective result.'

The same author at pp. 17 and 18 said thus:

'The equivocation of ambiguity of words and phrases and especially such as are general, is said by Lord Becon to be the great sophism of sophisms. They have frequently more than one pqually obvious and popular meaning. Words used with reference to on' subject matter or set of circumstances may convey a meaning quite different from that which the same words used with reference to another set of circumstances and another subject matter would convey general words admit of indefinite extension or restriction according to the subject to which they relate and the scope and object in contemplation. They may convey faithfully enough all that was intended and yet comprise also much that was not; or to be so restricted in meaning as not to reach all the cases which fall within the real intention. Even therefore where there is no indistinction or conflict of thought there is enough in the vagueness and elasticity inherent in the language to account for difference so frequently found in ascertaining the meaning of an enactment with the degree of accuracy necessary for determining whether a particular case falls within it.'

Such being the canons of construction which must take into account the context the circumstances, the general meaning of the words and the real intent of the legislature. I do not think by taking the value of the plaint where the appeal is from the rejection of plaint itself for a relief which is incapable of valuation a grievance can bo legitimately made that value other than that of the subject matter in dispute has been taken into consideration. The utmost that can be said is that the words Value of the subject matter in dispute' have been construed in their wider sense, so as to giv* full effect to the real intent of the legislature as the context warrants. Of course If this expression was to be construed narrowly so as to restrict it to the value of relief claimed which is incapable of valuation the purpose and intention of the legislature which is so well manifested in the provisions of Sections 38 and 39 making Section 47 applicable to cases which are incapable of valuation would be defeated. It has been the established practice of the courts to construe the words in their wider or narrower sense as the context warrants. The pendulum of judicial opinion in this behalf doet not seem to have ever swung the other way. This court had in fact after the advent of the present Act occasion to express its opinion, though, incidentally on the question of court fee in appeals against order of rejection of plaints in some of the cases at 9. R. stage.

The order made by Ekbote, J., and Ay-yar, J., in these S. Rs. have bsen relied on by the office and the learned Government pleader for the contention that in such cases ad valorem fee on suit valuation is in fact payable. S. R. No. 2299 of 1963 (A.P.) in which Ekbote J., expressed his view was a case where the suit was dismissed as barred by special enactment. It was not an order of rejection of plaint though the ground on which the suit was dismissed was virtually covered bv Order VII, Rule 11 (d) C. P. C. The dlscus-sion therein turned also on the question whether a memorandum of appeal against en order passed under Order VII, Rule 11(d) would come within Article 3 Schedule II of the Act. The plea as rdvanced was that it being a case virtually against an order of re-lection of plaint and the relief being in substance restricted to setting aside that order, which in fact, is incapable of valuation, a fixed court fee under Article 3 Schedule II was payable. The learned judge repelled the contention that the decree against which the appeal is filed was an order within the meaning of the said Article. He also repelled the contention that the subject matter in dispute in appeal for purposes of court fee was but a legal question incapable of being estimated in money value. He remarked if that to be acceptable line of approach extraordinary, lay startling results will follow and even in suits which are dismissed on the ground that they are barred by limitation the contention would prevail that the court fee should be paid having regard to the value of the question of bar of limitation, and not the amount in the suit Itself . even though the whole suit is dismissed on that ground. Such an argument, according to the learned Judge is untenable and in the words of the learned Judge needs to be mentioned only to be rejected. The learned Judge observed that the sublect matter in such appeals is not the question of law but it continues to be the same as in the original suit and the court fee should be paid ad valorem as on the plaint on the valuation of the subfect matter of the suit itself.

In S. R. 227 and 228 of 1964 where the appeal was against the order of rejection of plaint for non-pavmenl of deficit court fee and also against order of costs but court fee was paid under Article 3. Schedule II, H. A. Avyar, J.. held that ad valorem court fee must be paid Likewise in another case in S. Rule No. 42255 of 19R5 which relates to an appeal against an order under Sec 8 of the Partition Act which is to be deemed to be a decree within the meaninr of Sec 2(2) of the Code of Civil Procedure thf question that fell for determination was whether Article 3 Schedule II applied to the case. The learned Judge (H A.. Avvar. J.) held that appeal was against the decree and not an order and Article 3 had no application and the court fee was payable ad valorem. In a L. P. A. (S. R. No. 44747 of 1963) which was against the decree and judgment in the suit as being barred under the Administration of Evacuee Property Act, a Divisional Bench of this court consisting of Hou-ble the Chief Justice and another learned Judge directed payment of ad valorem court fee being an appeal against decree and not an order. All the above S. Rs. are of little assistance for our purpose as most of them were against decree other than order of rejection of plaint and the point in the way in which it is presented before us did not fall for consideration there. If they are of any help it is only on the question that subject matter in dispute has a wider meaning than the relief.

The Madras case in Re, Vidyudavalli Thayar, : AIR1959Mad14 decided by Rama-swami J, also does not lend much assistance for the present purpose. It is a case of rejection of plaint. The appellant, therein was refused leave to sue as pauper. The question arose what was the court fee chargeable on the memorandum of appeal preferred from a final order passed on failing to pay the court fee within the prescribed time after the petition to sue as above was rejected. The learned Judge considered three possible views and adopted the third view and directed payment of court fee payable under section 52 corresponding to Section 49 of our Act read with section 50 corresponding to Section 47 of our Act. It was fixed at Rs. 200 having regard to the value of the subject matter. The learned Judge proceeded on the basis that since the dispute is not as to the liability to pay court fee or the quantum thereof which is in fact admitted by the appellant but onlv as to his remedy in pauper form which relief is incapable of valuation being an abstract right to seek remedy on a scheme of deferred payment of court fee, the third view of the subject matter being incapable of valuation would be attracted and the court fee shall have to be paid in accordance with Section 50 corresponding to Section 47 of the present Act.

48. It is not necessary for me to pronounce on the soundness of this view. All that need bf said is where the relief claimed has been assumed to be incapable of valuation, the court fee has been directed to be paid under the correspondine provision to Section 47 of the Act read with Section 49 that must necessarily indicate that though the relief may be incapable of valuation the subject matter in dispute, for purposes of Section 47, is nevertheless capable of valuation and fixed court fee shall be paid according to the rates prescribed under Section 47 on the said value. This decision to this extent in effect though not in terms, recognises the principle that the terms 'relief and 'subject matter in dispute' are not necessarily interchangeable and the word 'subject matter in dispute' has a wider connotation.

49. It follows from the above discussion that Article 3 of Schedule II to the Act has no application to appeals against orders of rejection of plaints which are 'decrees' within the meaning of Section 2(2) C. P. C. The said provision is intended only to orders and does not cover 'decrees' within the meaning of the said Section excepting such of these as have been included under orders by specific reference thereto in that provision. Even in cases of orders such of them as have been provided for specifically in any other provision in the Act are out of the purview of that Article. Thus all the appeals in question being appeal from orders of rejection of plaints they are in no way lor purposes of court fee governed by that Article.

50. There is no specific provision for appeals against orders of rejection of plaints ,as such so that all the appeals of that nature may be governed by that provision alone. The grounds of rejection of plaints may be many. Order VII, Rule 11 C.P.C. refers to such grounds in Clauses (a), (b), (c) and (d). These grounds are of different nature. They may not be exhaustive of cases of rejection of plaints. So then no single provision of universal application can possibly be made applicable to all such cases against orders of rejection of plaints.

50-A. The question whether a memorandum of appeal for purposes of court fee is governed by one provision or the other must turn on the scope of the appeal and substance of the reliefs claimed therein. The general principle as laid down in Section 49 is that the fee payable in appeal shall be the same as the fee that would be payable in the court of first instance on the subject matter of appeal. The subject matter of appeal may not necessarily cover the entire subject matter of the suit as it depends upon the way in which the suit is disposed of in the court of first instance. If the relief or reliefs prayed for are the same, no difficulty would arise. The court fee as paid in the court of first instance shall be the fee in appeal. If only some of the reliefs and not all are prayed for in appeal, the court fee will be paid according to the value of those reliefs in the suit. If the relief prayed for is different from that prayed for or refused in the court of first instance the fee payable shall be the fee that would have been payable in the court of first instance on the relief craved for in the appeal. The fee payable may bp ad valorem or fixed. In view of these various qualifications each case must necessarily turn on its own facts and circumstances.

So far as appeals against orders of rejection of plaints on grounds mentioned in Clauses (b) and (c) of Order VII, Rule 11, C.P C are concerned if the relief is limited to that matter and not to the merits of the suit itself the court fee payable on the memorandum of appeal, as a rule, is under Article 1 (c) of Schedule I to Act and the subject matter in dispute would be the value representing the difference between the court fee demanded and that .paid. The appeals from rejection of plaints under clauses (a) and (d) of Order VII, Rule 11 C.P.C. stand on a different footing and may not, however, fall under the said Act, if they are confined to the relief or setting aside the order of rejection of plaint alone and do not extend further. As already said. It must all turn on the particular facts and circumstances of each cass. The scope of the appeal and the relief claimed would determine the issue and in the cases before us so far as S. R. No. 37685/65 is concerned I am of opinion that as the trial court has not gone into the merits of the suit but simply rejected the plaint on the ground mentioned in Clause (a) of Order VII, Rule 11 C.P.C. and the appeal is confined to that relief alone and as the relief claimed is incapable of valuation and the court fee is not provided for otherwise than under Section 47 read with Section 49 having regard to the value of the suit itself, i. e., Rs. 6000 shown in the memorandum of appeal, the court fee required for the said appeal would be Rs. 200. The same cannot be said of A. A. Os. 176 to 179 of 1965 for the appeals are not limited to the question of setting aside the order of rejection of plaints. In them the reliefs claimed go beyond and contain a prayer that the suits should be decreed. The memorandum of appeals, therefore, cannot come under Section 47 as the reliefs prayed for are capable of valuation and the appeals are governed by Article l(c) of Schedule I. The court fee has to be paid ad valorem and would be the same as in the suits themselves.

51. It is urged that though it is stated in the memorandum of appeals that the appellants are entitled to decrees, on the findings reached by the trial court the trial court should have decreed the suits, the relief prayed for was in substance and in essence confined to the rejection of plaints. It is difficult to accept this contention having regard to the scope of the memoranda of appeals filed. As I have already noticed, the ordinary rule is that court fee payable in appeal shall be the same payable in the court of first instance. The subject matter of appeals being the entire relief including the setting aside the order of rejection of plaints, the case would fall under Article 1(c) of Schedule I and court fee should be paid accordingly.

52. The reference is answered accordingly.

Venkatesam, J.

52-A. I had the advantage of studying the judgment of my learned brother, Kumarayya, J., and as he stated the facts and the contention fully, 1 do not think it necessary to repeat the same.

53. In A. A. O. Nos. 176 to 179 of 1965, the learned counsel for the appellants contended that they yre all appeals against orders rejecting the plaints, and. therefore, they are not liable to pay ad valorem court-fee under Article 1(c) of Schedule I of the Andhra Court Fees and Suits Valuation Act, VII of 1956 (hereinafter referred to as 'the Act'). It is, no doubt, true that in those suits, the trial Court in paragraph 17 of its judgment considered the applicability of the provisions of Sections 53 and 54 of the Orissa Court of Wards Act. 1947, and found that the suits were bad for non-com-pliance with Sections 53 and 54. The Subordinate Judge nonetheless gave findings on the other issues in the suit touching the merits, and found them substantially in favour of the appellants Even so, by reason of the default in giving the notices, the suits were dismissed.

54. In the Memoranda of appeal it was contended that the said finding is not sus-tainable in law. and it was prayed that this Court, in any event, should grant decrees against the defendants as prayed for. Regarding the valuation, it was stated in all the appeals that the value of the subject-matter therein was the same as in the respective suits. A Court-fee of Rs. 10 was paid in each case under Article 3(iii) of Schedule II of the Act on the ground that it is an appeal under Section 47 C.P.C. to the High Court against an order of the Subordinate Judge which relates to a suit of the value exceeding Rs 1,000.

55. It is difficult to hold that the deci-sion of the Subordinate Judge, dismissing the suit, is an order under Section 47 C P. C., relating to execution, discharge or satisfaction of a decree. On the other hand, the prayer in each appeal is that a decree may be passed as praved for. I cannot accept the further contention of the learned counsel for the appellants, that though there was such a prayer in the memorandum of appeal, he is confining his relief only against the order reiecting the plaints. Nor am I able to agree with the learned counsel that this court even while reversing the finding of the trial Court that the suits are bad on account of failure to give notices, has no jurisdiction to decree the suits, but can only remand them to the trial Court for fresh disposal.

This contention is not supported by any authority, and there cannot be any. The finding that there has been a failure to give the said notices if not one affecting the jurisdiction of the trial Court, and consequently it cannot be said that the subordinate Judge had no jurisdiction to give findings on the other issues touching the merits of the case, after finding that the suits were bad for want of the notices. That being so, if this Court come to a contrary conclusion on that question there is nothing preventing it from going into the correctness of. the other findings, and disposing of the appeals in their merits. In this view of the matter, I cannot agree that these appeals raise the only question, whether the order rejecting the plainti is valid or not.

56. That conclusion having been reached, the appeals are in law and in fact directed against the decrees of dismissal of the suits, and the subject-matter of the appeals is therefore the same as in the trial Court.1 According to Section 49 of the Act, the fee' payable in appeal shall be the same as in the Court of first instance, since the suits are all for recovery of specified sums of money, ad valorem Court-fee has to be paid under Article 1 (c) of Schedule I of the1 Court-Fees Act, but not a fixed fee of Rs. 10/-.

57. I would, therefore, prefer to rest my conclusions on the above reasons in preference to the view that since the memo-randa of appeal are capable of valuation, they are not governed by Section 47 of the Act, However, I agree with the conclusion of my learned brother Kumarayya, J. In so far as A. A. Os Nos. 176 to 179 of 1965 are concerned.

58. As regards S. R. No. 37685 of 1865, it appears to me that inasmuch the trial Court had not gone into the merits of the suit, but simply rejected the plaint on the ground that it disclosed no cause of action, and other contentions were not decided at all the order appealed against falls under Order VII, Rule 11(a). C. P. C. and the question for decision is, what Court fee is payable on the appeal. So far as appeals against orders of rejection of plaints on grounds mentioned in Clauses (b) and (c) of Order VII, Rule 11, C. P. C., are concerned, if the relief is limited to that matter, and not to thp: merits of the suit, the Court-fee payable on the Memorandum of appeal, as a rule, undei Article 1 (c) of Schedule I of the Act, as the subject-matter in dispute would be the value representing the difference in the Court-fee demanded and that paid.

I agree with my learned brother Kumarayya. J that appeals againsl orders reiecting plaints on grounds (a) or (d) of Order VII, Rule 11, C. P. C.. stand on a different footing, and do not fall under Article 1 (c) of Schedule I, if they are confined only to the relief of setting aside the order of rejection of the plaint. It is true that the scope of the appeal and the relief claimed would determine the issue and that in S. R. No. 37685 of 1965 the Court of first instance without going into the merits of the suit, simply rejected the plaint under Order VII. Rule 11. (a) C. P. C.. and the appeal is confined to the relief of setting aside that order. But I cannot, with deference, agree as the relief claimed in appeal is incapable of valuation, the Court-fee is payable under Section 47 read with Section 49 of the Act. and as the value of the suit was shown us Rs 6,000/- in the memorandum of appeal a Court-fee of Rs 200/- is payable, under Section 47.

59. Whether Schedule II. Article 3 of the Act governs only appeals against orders as ordinarily understood under the Civil Procedure Code, or also governs appeals against orders deemed to be decrees within the meaning of Section 2(2) of C. P. C. presents considerable difficulty, and it may be helpful to make a reference to the relevant provisions of the Central Court Fees Act with the Madras amendments, and the Andhra Pradesh Court-fees Act.

60. Schedule II, Article 11 of the Court-fees Act. 1870 (hereinafter called 'the Central Act') as amended in Madras in 1922 contained provisions which governed appeals against orders rejecting plaints under VII, Rule 11, C. P. C., and in those appeals a fixed Court-fee was payable. Schedule II, Article 11 of the Central Act is as follows:

'Memorandum of appeal when the appeal is from an order inclusive of an order determining any question under Section 47 or Section 144 of the Code of Civil Procedure, 1908, and is presented. . . .'

Schedule II, Art, 17 of the Central Act as amended in Madras in 1922 provided for Court-fee on a plaint or memorandum of appeal in a suit -- (i) to alter or set aside a summary decision or order of any of the Civil Courts not established by Letters Patent or of any Revenue Courts (11) to alter or cancel any entry in a register of the names of proprietors of revenue-paying estates; and (iii) for relief under Section 14 of the Religious Endowments Act, 1863. or under Section 91 or under Section 92 of the Code of Civil Procedure, 1908.

Article 17-A of Schedule II as amended provided for Court-fee on a plaint or memorandum of appeal in a suit (i) to cbtaln a declaratory decree where no consequential relief is prayed; (ii) to set aside an award; and (iii) to obtain a declaration that an alleged adoption is invalid or never in fact took place or to obtain a declaration that an adoption is valid. Further Schedule II Article 17-B as amended provided, for Court-fee on plaint or memorandum of appeal in every suit where it is not possible to estimate at a money value the subject-matter in dispute and which is not otherwise provided for by that Act. and the Court-fee depended on whether the memorandum of appeal is against the decree of a Revenue Court, or a District Munsif's Court, or the City Civil Court, or a District Court or a Sub Court.

61. The Andhra Court-fees Act, Chapter IV, dealt with computation of Court-fee. Section 19 lays down that the fee payable under this Act shall be computed in accordance with the provisions of Chapter IV, Chapter VI. Chapter VII and Schedules I and II of the Act. Sections 20 to 46 deal with computation of fee in several classes of suits, including the suits dealt in Articles 17, 17-A and 17-B of Schedule II of the Central Act as amended in Madras. Section 47 is a residuary Section, dealing with suits not provided for, that is. by Sections 20 to 46 of the Act. It enacts that in suits not otherwise provided for, fee shall be payable at the rates enumerated therein, depending on the amount or value of the subject-matter in dispute, and a fixed Court-fee is made payable depending on the slabs indicated therein, viz., if less than Rs. 3,000/- the fee payable is Rs. 50/-. if not less than Rs. 3,000/- but does not exceed Rs. 5,000/-, R.s. 100/-, if exceeds Rupees 5,000/-, but does not exceed Rs. 10,000/-, Rs. 200/-, and if it exceeds Rs. 10,000/-. the fee payable is Rs. 300/-. So, the maximum Court-fee payable in suitf falling under Section 47 is Rs. 300/-.

62. Sections 48 and 49 relate to computation of Court-fee in appeals. Section 48 governs the memoranda of appeals against orders relating to compensation under any act for the acquisition of property for public purposes. Section 49 governs all the appeals, and it lays down the general rule that the fee payable in appeal shall ba the same as the fee that would be payable in the Court of first instance on the subject-matter of the appeal. Besides a proviso, there are five Explanations to this Section. Explanations 4 and 5 alone are material for our purpose. Explanation 4 is to the effect that where the relief prayed for in the appeal is different from the relief prayed for or refused in the Court of first instance, the fee payable in the appeal shall be the fee that would be payable in the Court of first instance on the relief prayed for in the appeal. Explanation 5 lays down that where the market value. of the subject-matter of the appeal has to be ascertained for computing or determining the fee payable, such market value shall be ascertained as on the date of the presentation of the plaint.

63. Schedule I of the Act relates to plaints, memoranda of appeals, applications etc. where ad valorem Court-fee has to be paid, and Schedule II deals with cases of fixed fee. whether it be on petitions, or plaints for memorandum of appeal, or applications, and the miscellaneous documents. Schedule I, Article 1 (c) specifies the rate of ad valorem fee on plaint, written statement, pleading or counter-claim, or memorandum of appeal. Article 4 of Schedule I, it may bt noted, specifies the ad volorem fee payable on memorandum of appeal against order in proceedings under the Indian Succession Act. Schedule IT. Article 1 (ii) to 1 (vii) of the Act, on the other hand, deal with the fixed Court-fee payable on petitions, plaints, or memorandum of appeal under the several Marriage Acts in the country.

Article 3 of Schedule II of the Act it may be noted, governs memorandum of appeal from an order inclusive of an order determining any question under Section 47 or Section 144 of the Code of Civil Procedure, 1908. and not otherwise provided for, when presented x x x x x x' and the fee payable is made to depend on whether it is presented under Clause 15 of the Letters Patent to the High Court from an order other than an order under the Andhra Pradesh (Andhra Area) Agriculturists Relief Act, or against an order under Section 45-B of the Banking Companies Act, and from an order under the Andhra Pra-deah (Andhra Area) Agriculturists' Relief Act, 1988. It is not necessary to refer to the Court-fee payable on appeals presented to other Courts or tribunals dealt with under Article 3.

64. The question as to what Court-fee is payable on appeal presented to the High Court against an order rejecting a plaint has, therefore, to be determined on a construction of Sections 47, 49, Schedule I, Article 1(c), and Schedule II, Article 3 of the Act. As already noticed, the Central Court-fees Act, as amended in Madras, provided for a fixed Court-fee in an appeal against an order inclusive of an order determining a question under Section 47 of Section 144 of C. P. C., while Article 17-B of Schedule II provided for an appeal where it is not possible to estimate at a money value the subject-matter in dispute, and which is not otherwise provided for by that Act.

65. Plaints may be rejected under 0. VII, Rule 11, C. P. C, on the ground that a higher Court-fee than that paid was demanded, but was not paid, which is dealt with in Clauses (b) and (c), or on the ground that it did not disclose a cause of action, or that the suit appears from the statement in the plaint to be barred by any law (dealt with in els. (a) and (d)). Where an appeal is against an order of rejection on the ground of non-payment of additional Court-fee demanded, it cannot be said that the subject-matter in dispute in the appeal has no money value, or cannot be estimated at a money value, as the matter in appeal is the difference in the Court-fee demanded and the Court-fee paid. But the Instant Case (S. Rule No. 37685 of 1965) is not one such case. In determining which Article of the Court-fees Act applies to this case, the first question to be considered is, what is the subject-matter in dispute in appeal, and, secondly, it is possible to estimate the subject-matter at a monev value.

66. Dealing with Court-fee payable on an appeal against an order rejecting a plaint on the ground of non-payment of additional Court-fee demanded under the Central Act as amended in Madras in 1922, a Bench of the Madras High Court consisting of Schwabe, C. J., and Wallace. J. (in S. R. No. 1923 of 1923, reported in 17 Mad LW (NRC) 33 fullv reported at pages 423 to 426 of Satyamurti Aivar's Court Fees and Suits Valuation Act, 3rd Edition. (1936) had to consider the scope and effect of Schedule II, Article 11, and Schedule I, Article 1 of that Act. Considering the question, whether the appeal in that case was an appeal against an order Schwabe. C. J. after mak-ing the observations extracted in the judgment of Kumarayya, J.. concluded thus-

'It follows in my judgment that in order rejecting a plaint is not otherwise provided for in this Act, that is, otherwise than under Schedule I, Article I. It is, therefore, in my judgment, a memorandum of appeal not otherwise pro-vided for, and Schedule I, Article 1 applies.'

Their Lordships considered another question, viz., assuming the appeal to be from a decree, what was the subject-matter ;n dispute in appeal in that case, as which provision governed the rate of fee payable. It was contended before them that the appeal was incapable of valuation, and, therefore, it came under Schedule II Article 17-B or, in the alternative, that the subject matter in dispute was only the difference between the stamp claimed by the Lower Court, and the Stamp which the plaintiff was prepared to pay in that case. On behalf of the Government it was contended that the subject-matter in dispute in the suit, if it involved title to land of the value of, say, Rs. 1 lakh, and the question in appeal was, whether the stamp charged should be Rs. 100/- or Rs. 1,000/-, the Court-fee payable on appeal would be on the Lakh value of the land.

Adverting to this contention, the learned Chief Justice observed:

'It is agreed that the subject-matter in dispute means the subject-matter in dispute on appeal, and it would indeed be strange if the position were this: That if the whole case had been heard and there had been a decision of one point upon which the plaintiff wished to appeal, he would in coming up to this Court only have to pay court-fee based on the value of the item in respect of which he was appealing; while, if his case had not been heard at all, and question was about the maintainability of the suit, in order to come up to this Court to ask that the case should be heard, he would have to pay a Court-fee equal to what he would have had to pay if he had lost the whole of the suit and had desired to appeal in respect of the whole. It is almost inconceivable to my mind that the legislature, could have Intended such a result and, unless one is driven to the conclusion by very clear words that that was the intention of the taxing statute, it would be, in my judgment, impossible so to hold. I find no clear words in this Article to drive me to that conclusion. I think that the subject-matter in dispute, meaning subject matter in dispute in appeal, has the simple meaning applicable to those (sic). case namely the amount of stamp in dispute between the parties.'

The learned Judges relied upon the decision in 1882 All WN 244. which arrived at the same conclusion, though without expressing its reasons, and disagreed with the contrary view in 30 Ind Cas 379 : (AIR 1916 Cal 276) and further observed:

'Other authorities there are nont though there have been cases in which it would appear that fees have been paid not on the scale which I am now holding is applicable but on some higher scale, but I can find no case where the point has been taken and argued and decided.

If the subject-matter in dispute were not the difference in the two fees, then I think it would be a subject-matter which is incapable of valuation. The question is whether this case has to be heard or not and not what fee is to be paid; but, on the whole, I think where there is a definite amount of stamp in dispute and the question to be determined is whether that amount was properly demanded and was payable one can value the subject-matter in dispute and I have come to the conclusion that as between the application of Article 1 of Schedule I and Article 17 of Schedule II, I must hold in this case that Article 1 of Schedule I applies'. (Italics are mine).

Their Lordships therefore took the view that in appeals against orders rejecting a plaint, the subject-matter in dispute in appeal is, whether the suit should be heard or not, except where it is the difference in Court-fee, and is incapable of valuation, and I follow it with respect. It may be remembered that Article 17 of Schedule II referred to by the learned Judges is of the Central Act of 1870, which was reproduced in 1922 after the amendment in Madras as Article I7-B in Schedule II.

67. It is now for enquiry, whether the Act contains any provision analogous to Article 17-B. Unfortunately, it does not. As already pointed out, Schedule II, Article 3 of the Act only deals with memoranda of appeal against orders, including orders under Sections 47 and 144, C. P. C. and not otherwise provided for. The legislature, while passing the Act, has copied Article 11, Schedule II of the Central Act as amended in Madras in 1922, and also added the words, 'and not otherwise provided for'. But that, to my mind, does not cover cases which Schedule II, Article 17-B of that Act was intended to cover. That Article is more comprehensive, and the language is of wider amplitude, and governed appeals against orders which are incapable of valuation and not otherwise provided fot, and therefore, governed appeals against orders rejecting plaints, not relating to difference of Court-fee. Article 3 of Schedule II of the Act does not contain the words 'where it is not possible to estimate at a money value the subject-matter in dispute' before the words 'and not otherwise provided for'.

68. Further, the words in the first paragraph of Article 3 govern all the succeeding clauses Article 3 (iii) (A) (1) (a) of Schedule II deals with an appeal to the High Court from an order other than an order under the Andhra Pradesh (Andhra Area) Agriculturists' Relief Act, 1938, passed by a Subordinate Court or other authority, if the order relates to a suit or proceeding the value of which exceeds Rs. 1,000/ and in that case, the Court-fee payable is Rupees 10/-, and in any other case, it is Rs. 5/-, This provision apparently governs an appeal against an order where the subject-matter in dispute is capable of valuation. It is, therefore, not possible to say that in the opening words of Article 3 of Schedule II, the words 'where it is not possible to estimate at a money value the subject-matter in dispute' could be added, or that it was an omission, which should be supplied.

69. Apart from the general principles of interpretation of statutes, there are special rules of interpretation governing taxing statutes. It may be useful to extract in this context the passage in Halsbury's Laws of England, third Edition, Volume 36, paragraph 633, at page 416:

'The language of a statute imposing a tax duty or charge must receive a strict construction in the sense that there is no room for any intendment, and regard must be had to the clear meaning of the words. If the Crown claims a duty under a statute, it must show that that duty is imposed by clear and unambiguous words, and where the meaning of the statute is in doubt, it must be construed in favour of the subject, however much within the spirit of the law the case might otherwise appear to be; but a fair and reasonable construction must bt given to the language used without leaning to one side or the other.

The rule that the literal construction of a statute must be adhered to, unless the context renders it plain that such a construction cannot be put on the words, is especially important in cases of statutes which impose taxation. There is no rule admitting equitable construction of a taxing statute; that is to say cases which are not within the actual words of the Statute cannot be brought within the statute by consideration of its governing principle of intention, except possibly where it can be shown that the object of the statute is the protection of trade. On the other hand it is not open to a Court to narrow the operation of a taxing statute, once its meaning has been ascertained by the application of the ordinary rules of construction, by consideration of hardship or of business convenience or the like.'

A similar view was expressed in India in cases under the Court-Fees Act: Vide. Reference under Stamp Act, Section 46, (1886) ILR 9 Mad 146 (FB). Reference Under Court Fees Act, Section 5, (1891) ILR 14 Mad 480, Subramania Ayyar v. V. Rama Avyar. 54 Mad LJ 67: (AIR 1927 Mad 1002) and Ramaswami Ayyar v. Rangaswamj Ayvar, 61 Mad LJ 933: (AIR 1931 Mad 683). It follows that if there is an anamoly in the law of Court-fees, or an omission, the party charged can take advantage of it, and the provisions of the Act should not be strained with a view to tax the subject. As held in AIR 1636 Mad 498 the Court-Fees Act is a taxing itatute, and It is settled law that the intention to impose a charge upon the subject must be shown by clear and unequivocal language, and if two constructions of a fiscal enactment are equally possible and reasonable, the construction more favourable to the subject must be enforced. It cannot be said that on a fair and reasonable construction of the Act the memorandum of appeal in the instant case falls within any of the provisions of the Act. I am, therefore, constrained to hold that, whether the omission is accidental or inadvertent there is no provision in the Act governing appeals against the order of rejection of a plaint, not involving payment of Court-fee, like the present one.

70. It is difficult not to accept the view of my learned brother, Kumaravva, J. that the language of Article 3, Schedule II of the Act indicates that it is intended to govern memoranda of appeal against orders and the Legislature wanted to include in that term also the orders under Sections 47 and 144, C. P. C., which, unless specifically mentioned, would not come within its ambit, as they are decrees within the definition of the Civil Procedure Code. According to the decision in : AIR1964AP216 , the word 'order' in Section 48 of the Act has a wider ambit and includes orders relating to compensation which are not 'decrees' but are nonetheless appealable, and includes both orders and but that may not help the argument that the word 'order', wherever used in the Act, is used in a loose sense. As already stated the word 'order' in Schedule II, Article 3 cannot be? construed to include decrees within the meaning of the Code of Civil Procedure, so as to take in orders rejecting plaints which are deemed to be decrees under Section 2(2), C. P. C.

This construction is also consistent with Section 3 of the Act which lays down that unless the context otherwise requires, expressions used and not defined in the Act or in the Madras General Clauses Act, 1891, but defined in the Code of Civil Procedure, 1908, shall have the meaning respectively assigned to them in the said Code. For these reasons, with respect 1 agree with Kumarayya, J., in holding that there is no specific provision in the Act levying Court-fee on memoranda of appeal against orders of rejection of plaints.

71. It is, no doubt, true that Sections 38 (2) and 39 (e) of the Act lay down that in cases where the subject-matter of the suit or the consideration has no market value, the Court-fee shall be paid at the rates specified in Section 47. But Section 47, while dealing with suits not otherwise provided for, expressly refers to the amount of value of the subject-matter in dispute, and provides a fixed Court-fee, depending on the slab applicable to a particular case, It is, therefore, not possible to lay that it governs suits whose subject-matter is incapable of valuation. Nor is it possible to say that that is the result of Sections 38 (2) and 39 (e). To Bay that Section 47 deals with suits which are incapable of valuation, provided those suits are not otherwise provided for, if I may say so with respect, is to read into Section 47 words which are not there.

A harmonious interpretation of Sections, 38 (2) and 39 (e) is that even if the subject-matter of a suit to set aside a summary order, or the consideration for a promise sought to be enforced, has no market value, the value as estimated by the plaintiff, unless arbitrary or unreasonable, would be the value of the subject-matter of the suit, and a fixed Court-fee has to be paid thereon, depending on the slab under which It falls. The cases dealt with in Section 47 are cases which can be given some money value, though they may not have a market value, and though the value cannot correctly be estimated, but they cannot be said to be incapable of valuation or given a valua-ation even approximately. I, therefore, find it difficult to agree with the view that Section 47 was intended to govern, or in fact governs suits whose subject-matter is incapable of valuation.

72. It is well settled that the poweri of Courts in India to grant declaratory decrees is governed entirely by Section 42 of the Specific Relief Act, corresponding to Section 34 of Act 47 of 1963 But where a decree has the effect of giving, apart from declaratory relief, present relief as well, the power to grant the present relief will be governed by the general provisions of the Code of Civil Procedure, and not by Section 42 of the Specific Relief Act, Vide: Pollock and Mulla on the Law of Contract and Specific Relief, 1957 Edition, pages 855 and 856. in this view, I cannot envisage as maintainable a suit for a declaration by a plaintiff that he is entitled to have a plaint already filed by him, considered and disposed of on merits, without being met by any of the objections on which it is liable to be rejected under Order VII Rule 11, C. P. C. or any other ground.

Further, an order rejecting a plaint is a 'decree' within the meaning of Section 2(2) of C. P. C. from which an appeal lies under Section 96 C. P. C Section 42 of the Specific Relief Act lays down that a suit for a declaration would lie only where a person is entitled to a legal character: or to any right as to any property, and that the relief is in the discretion of the Court, but that no such declaration shall be granted where the plaintiff is entitled to ask further relief but omits to do so. The right to have a plaint filed considered and disposed of on merits without being confronted by any of the objections justifying its rejection, does not satisfy the requirements of Section 42 of the Specific Relief Act. Such a suit not being maintainable at law, it is difficult to attribute to the Legislature an intention to provide Court-feet on such plaints.

73. Merely because none of the pro-visions of Sections 20 to 46 of the Act have any application to a suit containing a relief prayed for in appeal, it cannot be held that the Court-fee is payable under the residuary provision, Section 47 of the Act. even though it contemplates a value for the subject-matter in dispute. Nor is it possible to concede that the intention of the Legislature has to be given effect to by giving a benevolent construction, as, in my view, it militates against the rule of strict interpretation of fiscal enactments. As such, it will not be possible to resolve the apparent contradiction by holding that Section 47 applies to cases which are incapable of valuation,' and to fix at the same time the standard of assessing the Court-fee as the amount or value of the subject-matter in dispute.

In a fiscal statute, it is not permissible to put a liberal construction on account of the spirit of the law, or on grounds of equitable construction. So, even granting that by straining the language of Section 47 of the Act, the subject-matter of a plaint is governed by that Section that is only a possible construction as against another construction, which, is not only possible, but more reasonable, and in such a situation, following the decision in AIR 1938 Mad 498 the construction more favourable to the subject must be adopted. If as a result of the interpretation of the Act, its meaning is not what the Legislature intended, it is for the Legislature to amend the Statute, but not for the Courts to attempt the necessary amendment by investing the language of the Act with some other than its natural meaning to produce a result, which, it is thought, the legislature must have intended: Vide Halsbury's Laws of England, third Edition. Volume 36. paragraph 586. page 392. To my mind the Court-fee on such a plaint, even if it lies, is not governed by Section 47, and, consequently, an appeal against an order rejecting such a plaint cannot by reason of Section 49 bear the same Court-fee in appeal.

74. It cannot be postulated that the subject-matter in dispute for the purpose of Court-fee in case of rejection of plaint would not merely be whether the order of rejection of the plaint should be set aside, which may be the relief prayed for, but whether the suit should be directed to be received, heard and decided on merits, so that the plaintiff, if found entitled, may be granted a decree by the trial Court, which is the main object of the suit. Nor is it possible to take the view that the phrase 'subject-matter in dispute' in the Act must be given a wider amplitude, or that in fact the relief by itself does not invariably determine the subject-matter in dispute for purposes of Court-fee.

75. Even if what is asked for ie th' setting aside of the order of rejection 01 plaint, it cannot be said that the plaint which is rejected is the subject-matter in dispute in relation to which the relief la nought for, or that the value thereof must determine the rate of fixed Court-fee as warranted by Section 47, or that the relief thus sought for is manifestly inseparably connected with the plaint which is sought to be directed to be received, heard and disposed of by setting aside the order of rejection of that plaint, and that in case of that kind, the value of the plaint, or, in other words, the value of the suit that should represent the amount or value referred to in Section 47 for determining the Court-fee. I may mention that chapter v of the Act is entitled 'Valuation of suits'. Section 50 (1) enacts that if no specific provision is made in the Act for determining the jurisdiction of Courts, value for that purpose and value for the purpose of computing the fee payable under the Act shall be the same. Section 50 (2) lays down the rule to govern cases where a fixed Court-fee is payable, making it very clear that in those cases the value for jurisdiction cannot be equated with the value for the purpose of Court-fee. Section 51 of the Act deals with the procedure to be adopted where objection is taken on appeal or revision that a suit or appeal was not properly valued for jurisdictional purposes. The object of these provisions is to remove the difficulties arising from on incorrect or improper determination of value for the purpose of jurisdiction, on which the forum for trial and appeal all depend. Section 50 (1) lays down the general rule that in the absence of any specific provision, the valuation for, the purpose of jurisdiction should be the same as the valuation for the purpose of Court-fee. Having regard to these provisions the proper method is to value the suit for the purpose of Court-fee first, and to take that value for the purpose of jurisdiction, in the absence of a provision to the contrary, but not vice versa. The value mentioned in the appeal for the purpose of jurisdiction. to my mind, cannot be taken into account for determining the Court-fee.

76. As my learned brother, Kumar-ayya, J. has rightly observed, the decision of the Rajasthan High Court in . does not help a solution of the problem we have to resolve. In that case, Schedule II of the Court-fees Act was sought to be relied on, but that contention was not accepted on the ground that the order of rejection of the plaint in that case was deemed to be a decree under S. 2(2) of the C. P. C. Even otherwise, the learned Judges held that it was an order having the force of a decree, and, consequently, the memorandum of appeal had to be charged on the ad valorem basis. The language in the Act which we have to construe being different, this case cannot be of any assistance.

77. The judgments of Gopal Rao Ek-bote, J., and Ananthanarayana Ayyar, J., and the order in L. P. A. (S. R.) No, 4447 of 1963 (API are also of no assistance, as they were appeals against decrees of dismissal of suits or they related to payment of difference in Court fee. Further, the point, in the way in which it is presented before this Full Bench, did not fall for consideration there.

78. Accordingly, in my view, the draftsman of the Act, whether accidental or inadvertently, omitted to provide for payment of Court-fee in appeals against orders under Order VII, Rule 11 (a) and (d). of the Civil Procedure Code.

79. I therefore, hold that the memorandum of appeal in S. R. No. 37685 of 1965 is not governed by any of the provisions of the Act, and no Court-fee is leviable. This is my answer to the reference.

A. A. O. Nos. T76 to 179 of 1965 S. R. No. 37685/1965.

In accordance with the opinion of the majority, the following order is made:

In A. A. O. Nos. 176 to 179 of 1965, ad valorem Court-fee will be leviable under Article 1 Schedule I of the Andhra Pradesh Court-fees and Suits Valuation Act. Time for payment of Court-fee 6 weeks.

In S. Rule No. 37685/1965. no Court-fee is leviable.

Advocates fee Rs. 100/-.


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