Skip to content


Amara Eswaramma and ors. Vs. Makkam Seethamma - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAndhra Pradesh High Court
Decided On
Case NumberSecond Appeal No. 1290 of 1954
Judge
Reported inAIR1955AP221
ActsCourt-fees Act, 1870 - Sections 1 and 7 - Schedule - Article 1; Suits Valuation Act, 1887 - Sections 3 and 12
AppellantAmara Eswaramma and ors.
RespondentMakkam Seethamma
Appellant AdvocateG. Venkatrama Sastri, Adv.
Respondent AdvocateGovt. Pleader and ;Nellore, Adv.
Excerpt:
property - proper amount of court fee - sections 1 and 7 and article 1 of schedule to court-fees act, 1870 and sections 3 and 12 of suits valuation act, 1887 - second appeal filed against reversal of decree in first appeal - rules pertaining to payment of court fee altered between date of institution of suit and presentation of memorandum of second appeal - whether payment of court fee on memorandum of second appeal would be as per altered rules or same as that paid on plaint - valuation of court fee to be ascertained with reference to rules of valuation which were in force at time of presentation of plaint. - - rule 11 ordains that the claim shall be rejected when written upon paper insufficiently stamped, if the plaintiff has failed to supply the requisite stamp paper within a time.....subba rao, c.j.(1) i agree.viswanatha sastri, j.(2) i too agree.bhimasankaram, j.(3) the question propounded for determination by this full bench relates to the amount of the proper court-fee payable on a memorandum of second appeal. the plaintiffs are the appellants in the second appeal. they filed o. s. no. 240/1952 on the file of the district munsif's court. nellore, for recovery of possession of the plaint schedule properties consisting of five items. on the plaint, they paid a court-fee of rs. 164-15-0 'ad valorem' on the market value of thesaid items. the suit was decreed, and the defendant, who preferred an appeal to the sub court, nellore, paid the same court-fee.the lower appellate court reversed the decree of the trial court and dismissed the suit on 9.8.1954. pending that.....
Judgment:

Subba Rao, C.J.

(1) I agree.

Viswanatha Sastri, J.

(2) I too agree.

Bhimasankaram, J.

(3) The question propounded for determination by this Full Bench relates to the amount of the proper court-fee payable on a Memorandum of Second Appeal. The plaintiffs are the appellants in the Second Appeal. They filed O. S. No. 240/1952 on the file of the District Munsif's Court. Nellore, for recovery of possession of the plaint schedule properties consisting of five items. On the plaint, they paid a court-fee of Rs. 164-15-0 'ad valorem' on the market value of thesaid items. The suit was decreed, and the defendant, who preferred an appeal to the Sub Court, Nellore, paid the same court-fee.

The lower Appellate Court reversed the decree of the trial Court and dismissed the suit on 9.8.1954. Pending that appeal on 12.4.1954, the Government of Andhra issued a Notification by its G. O. No. 367 under Ss. 2 and 3, Suits Valuation Act, 1887 (Central Act 7 of 1887) making rules for the determination of the value of the land for purposes of jurisdiction in suits for possession of land mentioned in para. (v) of S. 7, Court-fees Act, 1870 (Central Act 7 of 1870). Rule 2 thereof provided for the valuation of different kinds of land, such as ryotwari land, inam land and other kinds of lands situate in different kinds of estates as defined. in the Madras Estates Land Act and house sites.

This notification was superseded by G. O. No. 961 dated 8.9.1954, whereby in exercise of their powers under S. 3, Suits Valuation Act, 1887, the Government provided that for R. 2 in the prior notification (i.e., in G. O. No. 367) the following rule shall be substituted :

'In suits for possession of land, the value of the land for purposes of jurisdiction shall be half the market value of the land : Provided that it shall be open to the State Government from time to time to fix by notification the market value, as they may deem fit, and different percentage may be fixed for different classes of lands, having regard to the nature of the land and the area in which it is situated.'

This is followed by an Explanation not material for the present purpose.

(4) The present Second Appeal was presented on 30.11.1954 by the plaintiff with the following memo of valuation of the subject-matter of the appeal :

'Value of the Second Appeal for jurisdiction is the same as that of the trial Court viz., Rs. 1,700/- made up of Rs. 1,400/- being the market value of the A schedule properties plus Rs. 300/- claimed as past profits as per para. 6 of the plaint.'

Value of the Second Appeal for court-fees in regard to possession under Sch. 7 (v), Court - fees

Act, is half the market value, viz., Rs. 700/-Past profits claimed. Rs. 300/-_________Rs. 1,000/-_________

On that valuation, a court-fee of Rs. 112-7-0 was paid on the basis that the later G. O. (G. O. No. 961) applied to the Memorandum of Appeal. The office objected to this valuation and in doing so, placed reliance upon the ruling in -- 'R. M. Seshadri v. Province of Madras', : AIR1954Mad543 (A). It insisted upon the appellants paying the same court-fee as they had paid upon the plaint. My Lord, the Chief Justice sitting as a puisne Judge of the Madras High Court along with Ramaswami J., held in the last mentioned decision that an appellant need only pay on the Memorandum of Appeal the same court-fee as that he had paid on the plaint despite the fact that between the date of the institution of the suit and the presentation of the Memorandum of appeal.

The matter now under reference was posted in the first instance before the Taxing Judge Umamaheswaram J., who was of the opinion that the ruling conflicted with an earlier Bench ruling of the Madras High Court in -- 'Punya Nahako v. Emperor', AIR 1927 Mad 360 (B) which had ruled that in regard to the amount of court-fee payable on a review application coming under Art. 5 of the first schedule to the Court-fees Act, the court-fee payable thereon will be

'the court-fee payable, as if on the date when the review application was put in, the applicant was filing a plaint or Memorandum of Appeal for the same relief.'

In accordance, therefore, with the practice that obtained on the Madras High Court and which is to obtain in this High Court also as laid down by the Full Bench decision in -- 'Subbarayudu v. State, (S) : AIR1955AP87 (FB) (C), the learned Judge directed that this matter should go before a Bench in the first instance, though strictly speaking in accordance with the observations of Subba Rao J. (as he then was) in -- Dr. K. C. Nambiar v. State of Madras', : AIR1953Mad351 (D) he might have referred it to a Full Bench himself. The matter then came before the learned Cheif Justice and Satyanarayana Rao, J., who referred the following question to a Full Bench :

'Whether R. 2 substituted by G. O. Ms No. 961 (Law Courts -- 1) dated 8.9.1954 in the place of R. 2 of the rules framed by the Government of Andhra in G. O. No. 367 Law dated 12.4.1954 applies to an appeal arsing out of a suit filed prior to the enactment of that rule.'

It will be convenient in the first instance to set out the appropriate provisions of the Suits Valuation Act and the Court - fees Act, so far as they are material for the determination of the question thus formulated Section 3, Suits Valuation Act enacts :

'S. 3 (10 The State Government may make rules for determining the value of land for purposes of jurisdiction in the suits mentioned in the Court - fees Act. 1870, S. 7 paras, V and VI and para X, clause (d).

S. 3 (2) : The rule may determine the value of any class of land, or of any interest in land, in the whole or any part of a local area, and may prescribe different value for different places within the same local area.'

This section is in part I of the Act, Section 12 which is in Part III of the Act runs thus :

'Nothing in Part I or Part II shall be construed to affect the jurisdiction of the Court -

(a) with respect to any suit instituted before rules under Part 1 applicable to the valuation of the suit take effect or Part II has come into force, as the case may be, or

(b) with respect to any appeal arising out of any such suit.'

Section 7 (V), Court-fees Act so far as it is relevant for the present purpose, provides as follows :

'The amount of fee payable under this Act in the suits next hereinafter mentioned.............

shall he computed as follows :

(V) In suits for possession of land, houses and gardens -- according to the value of the subject-matter; and such value shall be deemed to be-

* * * * * * * * * * * (some modes of statutory valuation as are given which are followed by a proviso to this effect) : Provided that if rules are framed under S. 3, Suits Valuation Act, 1887, for determining the value of land for purposes of jurisdiction, the value so determined shall be deemed to be the value of the land for the purposes of this paragraph.'

It is also necessary to refer to the material portion of S. 6, Court-fees Act which is as follows :

'................. no documents of any of the kind specified ............... annexed shall be filed, exhibited or recorded in any Court of justice, or shall be received or furnished by any public officer, unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said schedules as the proper fee for such document.'

Article I in Sch. I to the Act relates to the amount of fee payable 'ad valorem' on a

'Plaint................or Memorandum of Appeal............... presented to any Civil .................court...........'

Column 3 thereof provides for a graduated scale of fee payable on the value of the plaint or Memorandum of Appeal referred to in col. 1 according as the amount or value of the subject-matter in dispute does or does not exceed the sums specified in col. 2. Now it is to be noted that S. 7 speaks only of the amount of court-fee payable in suits while S. 6 prohibits the filing, accepting or recording of

'a document of any of the kinds specified as chargeable in the first ................. schedule to the Act, unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said schedules, as the proper fee for such documents'.

Now the question to be decided is, having regard to the above provisions, what is the proper fee chargeable under Art. I, Sch. 1 on the present Memorandum of Appeal How is the amount or value of the subject-matter in dispute in this Memorandum of Appeal to be ascertained It is to be ascertained with reference to rules of valuation which were in force at the time of the presentation of the plaint, or in accordance with the rules as they stood amended by the time of the presentation of the Memorandum of Second Appeal. In AIR 1927 Mad 360 (B) Odgers and Wallance JJ. were concerned with the proper amount of court-fee leviable on an application for review of a judgment in an appeal pronounced before an amendment of the Court-fee Act enhanced the amount of Court-fee payable on plaints or Memoranda of Appeals in such cases. Wallace J. who wrote the leading judgment, propounded the question for determination in these terms :

'The first question is whether the rate of fee to be levied is under old Act or under the Amended Act. Under Sch. I, Arts. 4 and 5, the court-fee for application for review of judgment is either the whole or half of 'the fee leviable on the plaint or Memorandum of appeal' and the decision turns on the interpretation of that phrase.'

It may be construed in at least four different ways :

(1) as the fee actually levided in the plaint or Memorandum of Appeal when 'admitted ;

(2) as the proper fee to be levied on the plaint or Memorandum of Appeal at the time of presentation thereof :

(3) as the fee which would have been properly levied on the plaint or Memorandum of Appeal, if that had been put in at the time of the presentation of the application for review ; and (4) as the proper fee to be levied if the applicant for review were then putting in a plaint or Memorandum of Appeal for the same relief.'

The learned Judge preferred the fourth of the above construction to the other three. It seems to me that the proper way of construing it is 'as the fee actually levied or leviable on the plaint or Memorandum of Appeal at the time of the presentation thereof.' This view is in consonance with the interpretation put upon the language of the same articles in a similar case by their Lordships Mukerjee and Cuming JJ. in -- 'Nandi Ram v. Jogendra Chandra Dutta', AIR 1924 Cal 881 (E). There, Mookerjee J., who delivered the judgment of the Bench observed as follows :

'The Assistant Government Pleader has invited us on behalf of the Secretary of State for India in Council to read into col. 3 of Arts. 4 and 5 of the following expression : 'if the plaint or memorandum of appeal were presented when the application for review is made', There are two obvious objections to the proposed construction, namely, first, it requires us to read into the articles words which are not to be found there ; and secondly, the fiction that is involved is absolutely contradictory to the actual facts, because an application for review of judgment cannot be concurrent with a plaint or memorandum of appeal which must of necessity precede the judgment to be reviewed.

The petitioner on the other hand, urged that the Court-fees Act itself contains a provision which specified when the fee is leviable on the plaint or memorandum of appeal and he invites out attention to S. 6 which is in the following terms : ............'

The learned Judge after quoting S. 6 proceeded to say :

'This shows conclusively that the requisite court-fee is leviable when the plaint or memorandum of appeal is filed. This is corroborated by the provisions of O. 7, Civil P. C., 1908. Rule 1 requires that the plaint shall, in addition to other particulars, contain a statement of the value of the subject-matter of the suit for the purpose of jurisdiction and of court-fees. Rule 11 ordains that the claim shall be rejected when written upon paper insufficiently stamped, if the plaintiff has failed to supply the requisite stamp paper within a time to be fixed by the Court.

The Assistant Government pleader urges that if the expression 'leviable' refers to the time of presentation of the plaint or Memorandum of Appeal, the Legislature might as well have replaced it by the wrd 'levied'. This argument is fallacious and overlooks the fact that what is leviable might not have been levied. (as in the case of a suit filed 'in forma pauperis').

X X X X 'It is plain that if the Legislature had in Arts. 4 and 5 used the expression 'levied' instead of 'leviable' the result would have been that if by mistake a smaller amount than what is leviable on the plaint or Memorandum of Appeal has been levied, the applicant for review will be entitled to the continued benefit of the mistake. Conversely, if the amount levied is in excess of what is leviable, the petitioner will be prejudiced, though he may be entitled to a refund of the sum paid in excess :-- 'Lakhi Narain Jagdeo v. Kritibas Das', 19 Ind Cas 971 (Cal) (F);-- 'Re : Prasunna', 11 Beng LR 372n (G).

There is thus ample reason why the legislature should have used the term 'leviable' and not 'levied'. The use of the term 'leviable' does not, in our opinion, justify the inference that the legislature intended to introduce a fiction into the law, namely, an imaginary representation of the plaint or Memorandum of Appeal at the time when the application for review is filed.'

X X X X X 'The substance of the matter is that for the purpose of ascertainment of the court-fee payable on the application for review, the application relates back to the plaint or Memorandum of Appeal as the case may be, the amount is levied in a fixed proportion independent of the scope of the application for review. To put the matter differently ; as soon as a suit bass been instituted, the amount of court-fee payable on a possible application for review of the prospective judgment in the suit becomes fixed.'

X X X X X The amount must be calculated on the basis of the fee leviable (which in the normal course of events is the fee actually levied) on the plaint or memorandum of appeal according to the law in force when the plaint or memorandum of appeal is filed in Court.'

Dealing with the contention of the Government that as amended statute which came into operation after the memorandum of appeal was filed and before the application for review was lodged applied to the review application, the learned Judge held that

'the applicant could not be called upon to pay court-fee on the basis of the fee which would be payable on the plaint or the memorandum of appeal if it were to be filed on the date of the application for review.'

In reaching the conclusion as to the basis on which the amount must be calculated the learned Judge referred to the decisions in -- 'Anon', 7 Mad HCR (App) 1 (H) and -- 'In re Manohar G. Tambegar', 4 Bom 26 (I), the former of the Madras High Court and the latter of the Bombay High Court as pointing to an opposite conclusion. The decision in 7 Mad HCR App 1 (H) which the learned Judges, who decided AIR 1927 Mad 360 (B) purported to follow does not, to my mind, appear to be directly in point so far as the specific question that fell to be decided in the later case is concerned.

There the question was whether the court-fee payable on an application for review of judgment is to be calculated upon the amount originally at issue in the plaint or appeal memorandum upon the amount at issue in the application for issue of judgment: The majority of the Court expressed the view that although the words of the schedule may seem in some measure to favour an opposite construction the stamp fee must be calculated on the amount which would be obtained if the review were granted and not necessarily on the whole value of the suit. They proceeded to say :

'The leading principle of the Act is that the amount of the stamp fee is to be calculated on the relief sought and when a man seeks to obtain by a review more than the Court has already given him, the excess in the relief which he seeks by his petition. The words in Arts, 4 and 5 of Sch. I are 'the fee leviable on the plaint or memorandum of appeal' and they must be taken to mean the fee which would be leviable on the plaint or memorandum of appeal, if there were a fresh plaint or memorandum of appeal seeking the additional relief which the petition of review seeks.'

It is to be noted that there is no question in this case of retrospective operation of the Court-fees Act as amended. In 4 Bom 26 (I) a single Judge of the Bombay High Court decided that-

'When a plaint or memorandum of appeal comprises a number of claims and a portion only of such claim has been allowed by the judgment the party seeking a review should be required to stamp his application with a fee sufficient to cover the amount of the claims in regard to which he wishes the Court to reivew its judgment.'

The reasoning of the decisions is stated thus :

'Section 17 provides that when a suit embraces two or more subjects, the plaints or Memoranda of appeal shall be chargeable with the aggregate amount of the fees to which the plaints or Memoranda of appeal in suits embracing separately each of such subjects, would be liable under the Act. A plaint, therefore, or memorandum of appeal which embraces two or more distinct subjects, is treated, for the purposes of the stampe revenue, as a collection of distinct plaints or memoranda of appeal ; and treating it is this manner, I think that the words 'the plaint or memorandum of appeal in Art. 5 may be construed as meaning not necessarly the plaint or memorandum of appea, formed by the combination of the several subjects comprised in it, but the plaint or memorandum of appeal which would have been presented in respect to the particular subject in regard to which the review is sought, if the suit has embraced that subject and no other. In the present case, the plaint and the memorandum of appeal embraced several distinct subjects .............. In case of doubt, a fiscal regulation should be construed in favour of the subject.'

Here again, there was no question of the retrospective operation of an amendment of the law relating to court-fees. Notwithstanding that while the learned Judges who decided AIR 1927 Mad 360 (B) called in aid the above two decisions in support of their interpretation, Mukerjee J. thought they pointed in a direction opposite to that which he pursued, it seems to me that there is no necessary inconsistency between the view of Mukerjee, J., and those of the learned Judges of the Madras and Bombay High Courts in the two rulings cited above.

The fact is not to be overlooked that the report in 7 Mal HCR (App) 1 (H) is not a report of the 'ipsissima verba' of the learned Judges but is only a summary of their opinion, and if considered in the light of the reasoning adopted in 4 Bom 26 (I), it might be read as construing Arts. 4 and 5 in harmony with the intention of S. 17 of the Act. I am not prepared to agree with the views of Mukerjee J., in so far as he implies, that the proper fee for such an application is the fee leviable on the plaint or the memorandum of appeal, whether the review affects the whole or part of the decree.

On this point, there is a divergence of views between the several High Courts. The High Court of Oudh in -- 'Ram Asray v. Rameshwar Prasad' AIR 1943 Oudh 225 (J) and the High Court of Nagpur in -- 'Ibrahim Ali v. Ahsan Hussain', AIR 1933 Nag 207 (K) followed the view held by the Calcutta High Court in preference to that of the Madras and Bombay High Courts. But, it is to be observed that all these cases turned on the meaning of the word 'leviable' in Arts. 4 and 5 of Sch. I, Court-fees Act.

The cases in AIR 1927 Mad 360 (B) and that in AIR 1924 Cal 881 (E) considered, it is true, the retrospective effect of a court-fee provision also but their view as to it was coloured by what the Judges who decided them thought was the meaning of that word. But, neither had to deal with the problem presented to us by the instant case. Much more in point to the present discussion, however, it seems to me, is the Full Bench decision in -- 'Daivanayaga Reddiar v. Renukambal Ammal', AIR 1927 Mad 977 (FB) (L). It is true that this case also actually depended only on the construction of S. 13, Madras Civil Courts Act.

Indeed, the learned Judges in that case were dealing with the effect on jurisdictional value of a change in the value for purposes of court-fee (when both were stautorily made identical) when the change was brought about after a suit had commenced ; while in the case now before us, we are called upon to pronounce on the effect on the value for court-fee of a notification under the Suits Valuation Act. What happened in that case was that between the date of the suit and that of appeal, S. 7(2), Court-fees Act (8 of 1870) was amended by the Madras Court-fees Amendment Act (5 of 1922) as follows :

'In suits for maintenance and annuities or other sums payable periodically -- according to the value of the subject-matter of the suit, and such value shall be determined to be, in suits for maintenance, the amount claimed to be payable for one year and in other suits to be ten times the amount claimed to be payable for one year.'

The plaintiff, a widow, claimed maintenance at a particular rate and valued her claim in the plaint at ten times the amount payable for one year, under S. 7, Cl. (2), Court-fees Act. She also claimed past maintenance and a house to reside in. The total value of the claim according to her was Rs. 14,600/-. The Subordinate Judge gave a decree for maintenance at Rs. 60/- a month. He also decreed that she should be given possession of a house for her residence during her life.

The defendants thereupon preferred an appeal to the High Court valuing the relief for maintenance under the Court-fees Amendment Act. The total value of the appeal together with the past maintenance and the value of the house came to Rs. 2,633-5-4. It was contended that though the suit was valued at more than Rs. 5,000/- under the law in force at the time of the filing of the plaint, yet the value of the subject-matter of the suit according to the amended Court-fees Act at the time the appeal was presented being less that Rs. 3,000/- and appeal lay only to the District Court and not to the High Court.

After referring to the decision in -- 'Colonial Sugar Refining Co. v. Irving', 1905 AC 369 (M), the learned Judges held that the Amended Courtfees Act, which came into force after the suit was filed, would not deprive the plaintiff of a right to appeal in the High Court which he had when he filed the suit. Then they proceeded to say :

'The answer to the question before us may also be put upon another ground and that is that the forum of appeal from a Subordinate Judge's Court depends on the value of the subject-matter of the suit. Presumably the value of the subject-matter of the suit is its value at the time of filing. Such value has to be set forth in the plaint and court-fee paid accordingly.

It is however, contended that the value varies according to the particular enactment in force at the time ; and that, although it may have aparticular value when it is filed, the value of the suit can be changed if the law in respect of valuation is altered. This contention was distinctly negatived so long ago as 1874 in -- 'Muthuswami Pillai v. Muthu Chidambara Chetti', 7 Mad HCR 356 (N), where it was held that it is the money value of the original suit that fixes the jurisdiction throughout the subsequent litigation in its several stages.

If this is so, the value of the subject-matter of the suit is he same throughout and it cannot be altered after the decree has been passed simply by an alteration in a fiscal enactment.

This decision, though it does not refer to S. 12, Suits Valuation Act above quoted, is in consouance with the policy underlying that section. We might have had a direct authority on the point now in controversy if the learned Judges had also been called upon to determine the court-fee chargeable on the Memorandum of Appeal before them. But, unfortunately, the problem was not posed to them.

This decision was, however relied on by the advocate for the appellant in -- 'In re Ghosh Beevi', AIR 1944 Mad 406 (O), in support of the contention that 'the value of a suit (for court-fee purposes) as fixed according to the law then in force when the suit was instituted continues to apply to an appeal and a Second Appeal therefrom in spite of alterations subsequently made' (as to the mode of valuation).

But that argument was rejected by Krishnaswamy Ayyangar J., on the ground that 'the Full Bench had not to consider the effect of a fiscal enactment in so far as fiscal purposes are concerned' and taht the ruling did not touch the question of court-fees. He gave no reason. however, in support of his view that such an amendment would affect even the Memorandum of Appeal arising out of the suits instituted before it came into force.

This decision was referred to in : AIR1954Mad543 (A), but it was stated therein that it was not entitled to weight for want of positive grounds for decision. The appellant in Seshadri's case (A) instituted C. S. No. 541 of 1949 on the Original Side of the Madras High Court and paid a court-fee of Rs. 935/- on the plaint which was the proper fee payble. The suit was dismissed by the learned Judge sitting on the Original Side on 25.3.1952.

During the pendency of the suit, R. 1 of O. 2 of the High Court Fees Rules, 1933 was amended so as to provide that the Registar shall apply to certain documents which included memorandum of appeal the law for the time being in force relating to Court-fees, etc. i.e., (the Court-fees Act) in the manner and to the extent that it is applicable to similar documents filed in original proceedings in a District Court and in appeals from decrees and orders of a District Court.

This rule came into force on 27-6-1950. The appellant presented his Memorandum of Appeal on 20.8.1952, paying the same amount of court-fee thereon that he had paid on the plaint. The office, however, required a court-fee of Rs. 2,332-7-0 to be paid on the Memorandum on the basis of the amended rule. the plaintiff-appellant successfully contended before the learned Judges that the lesser court-fee was sufficient. Dealing with the point as to retrospective operation of the amendment, Subba Rao J. (as he then was) observed as follows :

'It is then contended that in any view the amended rule could not affect the right of the plaintiff to prefer an appeal against the decree of the learned Judge sitting on the Original Side as the rule is not expressly or by necessary implication given retrospective operation. It cannot be disputed that an appeal is a continuation of the proceedings in the Court of the first instance--See -- 'Muthiah Chettiar v. Ramasamy Chettiar', 20 Ind Cas 689 at p. 694 (Mad) (P). It is also settled law that a right of appeal is not merely a matter of procedure but is a matter of substantive right. The case in -- 'Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh', : 1983(13)ELT1277(SC) (Q), is rather instructive.' After adverting to the decision in : 1983(13)ELT1277(SC) (Q) which I shall presently discuss and after quoting the language of the amendment, Subba Rao J., proceeded to say-

'This amendment does not give it retrospective operation. Nor can we infer retrospectivity by necessary implication. Full meaning can be given to the amendment, if it is confined to cases where the suit was filed after the amendment came into force. But can it be said that the amendment is such that it places substantial restriction on the plaintiff's right of appeal Under the rules, as they stood at the time when the suit was filed, the court-fee payable was only Rs. 935/-. Under the amended rule, the court-fee is Rs. 2,832-7-0 i.e., about three times the original rate.

This sudden increase in the burden could not have been anticipated by the plaintiff. Had he known that he would be asked to pay such heavy court-fee for preferring an appeal, it is problematical whether he would have filed the suit at all. At the time he filed the suit he must have been under the impression that with the payment of an additional court-fee of Rs. 935/- he could pursue the suit to its appellate stage.

The right of appeal that vested in him at the time when he instituted the suit was certainly and seriously curtailed by the unexpected heavy burden thrown on the appellant. It is a well-established principle that an Act or Rule imposing a burden has always to be construed strictly. On a fair construction of the language used in the rule, we cannot hold that the amendment is retrospective in operation. The Court-fee prescribed thereby cannot apply to the appeal preferred by the plaintiff.'

The Government Pleader relied upon a decision of Krishnaswamy Ayyangar J. in AIR 1944 Mad 406 (O). The learned Judge held that the notification increasing the court-fee was applicable to an appeal preferred after it came into force though the suit was instituted prior to the amendment. A perusal of the judgment shows that the learned Judge only distinguished the cases before him, but did not give any acceptable reasons why in his view the court-fee payable according to the amendment should be paid. The only reason given by the learned Judge is a statement of fact namely :

'The notification having taken effect on 1.11.1943, I can see no reason why it should be held in applicable to an appeal preferred after it came into force.

(5) The learned Judge has not considered the point viz., when the amendment was not expressly or by necessary implication made retrospective in operation, whether it would apply to an appeal even though it has placed a substantive restriction on the appellant's right of appeal. We, therefore, regret out inability to follow the judgment. Strictly speaking, it is true that there is really no direct conflict between the decision in AIR 1927 Mad 360 (B) and that in AIR 1944 Mad 406 (O).

The one, as already shown, construed the word 'leviable in an Article of Sch. I to the court-fees Act, while the other pointedly and solely dealt, with the retrospective operation of a particular notification as regards court-fee. But it is fairly obvious that the rasoning in the one militates against that in the other and it is, therefore, desirable that the matter is placed beyond doubt.

(6) Now it is common ground in that argument before us that the general effect of the notification of the Government of Andhra in G. O. No. 961 is considerably to enhance the amount of court-fee payable in a number of cases, though it has the effect of reducing the amount of court-fee payable in a few cases, such as the one before us, in the first place, it must be observed taht the notification in accordance with the terms of S. 7(v) deals only with the valuation of suits as such.

It does not even mention appeals. A memorandum of appeal relating to this class of suits is chargeable with court-fee only by the combined effect of S. 6 and Art. 1, Court-fees Act. Article 1 refers to 'a plaint or memorandum of appeal.' It seems to me raeasonable to hold that if the valution of the suit is once fixed for jurisdiction purposes, then under proviso to S. 7(v) it is fixed for purposes of court-fee also.

When the Legislature makes the valuation identical both for jurisdiction as well as Court fee purposes, no interpretation in my judgment should be put upon a notification like the one in question, which would result in such identification being in abeyance so to say for some time at least, so far as appeals are concerned. Because, if the construction suggested on behalf of the appellants is right, while the value of the appeal for jurisdictional purposes remains unaltered (as the Full Bench decided in AIR 1927 Mad 977 (FB) (L) ).

It would be different for court-fee purposes while the proviso to Section 7 (v) says both values should be the same. It is doubtless true, as has been observed by Lord Blackburn in -- 'Gardner v. Lucas', (1878) 3 AC 582 at p. 603 (R) that alterations in the form of procedure are always retrospective unless there is some good reason or other why they should not be.' But as observed in the judgment of the Madras High Court in 20 Ind Cas 689 at p. 694 (Mad) (P) 'some matters coming within the law of procedure must be decided by the law as it stands at the time when the suit was instituted, while with regard to other matters, a change in the law subsequent to the institution of the suit will modify the procedure which the Court should adopt.'

(7) As Craies points out in his 'Statute Law' (Edn. 5) at page 371, if a statute deals merely with the procedure in an action and does not affect the rights of the parties, 'it will be hald to apply prima facie to all actions, pending as well as future. This statement is followed by a paragraph entitled 'Right of Appeal not affected at being a matter of existing right' in which the well-known passage of Lord Macnaghten in the case of 1905 AC 369 (M) is cited. Reference may now be made to the decision of the Supreme Court in : 1983(13)ELT1277(SC) (Q).

The question to be decided in that case was regards the maintainability of an appeal to the Sales Tax Commissioner, Madhya Pradesh, under S. 22 (1) C. P. and Berar Sales Tax Act, 1947. Between the date of the institution of the assessment proceedings and the date of the filing of the appeal from the assessment, the said section was amended so as to require proof of the payment of the tax in respect of which the appeal had been preferred, as a condition precedent to the maintainability of the appeal.

Before the amendment, it was enough if the appellant satisfied the Commissioner that he had paid the tax admittedly due. The Nagpur High Court was of the view that the Income-tax Authorities rightly rejected the appeal as in their opinion, the amended provision applied to the case. In upholding the contentions of the appellant before them their, Lordships of the Supreme Court made the following observations :

'That the amendment has placed a substantial restriction on the assessee's right of appeal cannot be disputed, for the amended section requires the payment of the entire assessed amount as a condition precedent to the admission of its appeal. The question is whether the imposition of such a restriction by amendment of the section can affect the assessee's right of appeal from a decision in proceedings which commenced prior to such amendment and which right of appeal was free from such restriction under the section as it stood at the time of the commencement of the proceeding.

The question was answered in the negative by the Judicial Committee in 1905 AC 369 (M).' They then discussed the facts of the Privy Council decision and after referring to a number of Indian decision based on that ruling summed up the position in the following words :

'It was there regarded as settled that the right of appeal was not a mere matter of procedure, but was a vested right which inhered in a party from the commencement of the action in the Court of first instance and such right could not be taken away except by an express provision or by necessary implication.'

They also declared that the, right of appeal is not merely a matter of proceedure, but one of substantial, right. They repelled the contention that the mere imposition of an onerous condition does not prevent the exercises of the right of appeal in these words :

'There can be no doubt that the new reqirement 'touches' the substantive right of appeal vested in the appellant. Not can it be overlooked that such a requirement is calculated to interfere with or fetter, if not to impair or imperil, the substantive right. The right that the amended section gives is certainly less than the right which was available before.

A provision which is calculated to deprives the appellant of the unfettered right of appeal cannot be regarded as a mere alteration in the procedure. Indeed, the new requirement cannot be said merely to regulate the exercise of the appellant's pre-existing right, but in truth, whittles down the right itself and cannot be regarded as a mere rule of procedure.'

It is clear that the reasoning hits not merely the total denial of a vested right of appeal, but also any substantial or serious interference with its exercise. Having regard to the general effect of the notification now in question, which is as adverted above, to increase the court-fee payable in a large majority of cases, the result of holding that the notification is retrospective would be to cripple or disable many would-be appellants in the pursuit of the right of appeal which vested in them when their suits were instituted.

(8) My answer, therefore, to the question referred to us would be in the negative.

(9) Answer accordingly.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //