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Arun Kumar Vs. the Special Secretary, Health, Housing and Municipal Administration, Government of Andhra Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberLetters Patent Appeal No. 149 of 1981
Judge
Reported inAIR1982AP472
ActsAndhra Pradesh Court-fees and Suits Valuation Act, 1956 - Sections 49 - Schedule - Article 3(A)(2)
AppellantArun Kumar
RespondentThe Special Secretary, Health, Housing and Municipal Administration, Government of Andhra Pradesh an
Appellant AdvocateSyed Shah Mohd. Quadri, Adv.
Respondent AdvocateGovt. Pleader
Excerpt:
civil - court fee - section 49 and article 3 (a) (2) of schedule to andhra pradesh court-fees and suits valuation act, 1956 - whether proper court fee has been paid on memorandum of appeal filed under clause 15 of letter patents -court observed that appeal was filed against judgment which constitutes decree and not order - appellant was liable to pay on memorandum of letters patent appeal same court fee which was payable in lower courts by virtue of provisions of section 49. - - 3 (iii) (a) (2) applies to appeals filed under clause 15 of the letters patent and it takes in both an appeal against a decree as well as appeal against an order and that being a special provision it overrides the general provisions of section 49 of the act......by the high court officer is whether proper court--fee has been paid on the memorandum a of appeal filed under clause (15) of the letters patent.2. the suit out of which this appeal arises was filed by the appellant for recovery of an amount of rs. 5,400/-- and of for future compensation of rs. 150/-- per month form the date of suit. the suit was valued at rupees 5,400/-- and ad valorem court--fee of rs. 453/-- was paid under sch. 1, art. 1 (c) read with section 19 of the andhra pradesh court--fees and suits valuation act, 1956 (hereinafter called 'the act'). the suit was dismissed by the trial court and the appellant filed an appeal c. c. c. a. no. 92/78 in this court paying and ad valorem court-fee under section 49 of the act on the amount claimed in the suit. the appeal also.....
Judgment:

Ramachandra Rao, J.

1. The question raised in this reference by the High Court officer is whether proper court--fee has been paid on the memorandum a of appeal filed under Clause (15) of the Letters Patent.

2. The suit out of which this appeal arises was filed by the appellant for recovery of an amount of Rs. 5,400/-- and of for future compensation of Rs. 150/-- per month form the date of suit. The suit was valued at Rupees 5,400/-- and ad valorem court--fee of Rs. 453/-- was paid under Sch. 1, Art. 1 (c) read with Section 19 of the Andhra Pradesh Court--fees and Suits Valuation Act, 1956 (hereinafter called 'the Act'). The suit was dismissed by the trial Court and the appellant filed an appeal C. C. C. A. No. 92/78 in this Court paying and ad valorem court-fee under Section 49 of the Act on the amount claimed in the suit. The appeal also having ended in dismissal, the appellant is seeking to file the above Letters Patent Appeal under Clause 15 of the Letters Patent. The Letters Patent Appeal has also been valued at Rs.5400/- . The appellant has also been valued at paid a fixed court -fee of Rs. 100/-- relying upon Sch. II, Art. 3 (iii) (A) (2) (b). The High Court office raised an objection the ad valorem court -- fee is payable under Section 49 of the Act on the amount at which the appeal has been valued.

3. The contention of the appellant is, that appeals filed under clause 15 of the Letters :Patent are governed by the provisions of Sch. II, Art. 3 (iii) (A) (2) of the Act and therefore, fixed court--fee paid under the said provision is proper and valid.

4. The question for consideration is: whether the appeal in question is governed by the provisions of Sch.III, Art. 3 (iii) (A) (2) or section 49 of the Act?

5. The relevant provision of Art. 3 (iii) (A) (2) read as follows:

'Sch. Ii

Article 3. Memorandum of appeal for from an order inclusive of an order determining any question in under Section 47 or Section 144 of the Code of Civil Procedure, 1908 and not other wise provided for when presented.

(i)&(ii) x x x

(iii) to the High Court -

(A) From an order other than an order under the Andhra Pradesh ( Andhra Area) Agriculturists Relief Act, 1938 -

(1) Where the order was passed by a subordinate Court or other authority -

(a) if the order relates to a suit or proceeding, the value of the which exceeds one thousand .. .. .....

Ten rupees.

(b) in any other case ..... Five rupees

Where the appeal is under Clause 15 of the Letters Patent----

(a) From an order passed in exercise of appellate jurisdiction. ... Ten Rupees..

(b) In any other case.. ...... One Hundred Rupees'.

Section 49 of the Act reads as follows:

'49. the fee payable in an appeal shall be the a same as the fee that would be payable in the Court of first instance of on the subject matter of the appeal.

(Rest omitted as not necessary for the purpose of this case)'.

6. It is clear from the aforesaid provisions that the judgment of the single Judge sought to be appealed against may be one disposing of an appeal against either a decree or an order made by the subordinate Court in exercise of its appellate jurisdiction. Under Clause 15 of the Letters Patent, an appeal shall lie to a Division Bench against the judgment of a single Judge in exercise of the original or appellate jurisdiction and with the leave of the single Judge in the case of judgment passed in exercise of second appellate jurisdiction. The expression 'judgment' in Clause 15 of the Letters Patent means only final orders, decrees or judgment and not orders, where the effect of them do not put an end to the suit or proceedings. Vide Sheikh Ali v. Noorjhan Begum, (1969) 2 Andh WR 55. Thus, under Clause 15 of the Letters Patent, an appeal lies against the judgment amounting to a decree of single Judge which may be a decree or a final order. In the instant case, the Letters Patent Appeal is sought to be preferred against a judgment which amounts to a decree.

7. The learned counsel for the appellant contended that Sch. II, Art. 3 (iii) (A) (2) applies to appeals filed under Clause 15 of the Letters Patent and it takes in both an appeal against a decree as well as appeal against an order and that being a special provision it overrides the general provisions of Section 49 of the Act. But, we are unable to agree with this submission. Schedule II, Article 3 beings with the expression 'memorandum of appeal from an order inclusive of an order determining any question under section 47 or Section 144, C. P. C.' and therefore, the whole of that Article 3 of Schedule II applies to appeals from orders. While Clause 3 (I) and (ii) apply to appeals from orders to any Court other than the High Court and the Board of Revenue. Article 3 (iii) (A) (1) applies to appeals to the High Court from orders of the subordinate Court or other authority, and Art. 3 (iii) (A) (2) applies to appeals to the High Court or other authority and Art. 3 (iii) (A) (2) applies to the High Court under Clause (15) of the Letters Patent against orders passed by the High Court in exercise of appellate jurisdiction in any other case. Therefore, the provisions of Sch. II, Art. 3 are not applicable to appeals against judgments which constitute or amount to decrees. If so construed provisions of Article 3 (iii) (A) (2) of Sch. II apply only to appeals filed under Cl. 15 of the Letters Patent against orders passed in exercise of appellate jurisdiction or otherwise. In the instant case the appeal is preferred under Clause 15 of Letters Patent against the judgment of a learned single Judge which constitutes a decree and, therefore, the provisions of Section 49 of the Act are applicable and the fee payable shall be the same as the fee that was paid in the Court of the first instance.

8. In a Special Bench decisions of the Kerala High Court in Asma Beevi v. H. M. V. Moidu, : AIR1973Ker161 a question arose as to the court-fee payable in an appeal preferred under Section 5 of the Kerala High Court Act, 1958 which is similar to C1. 15 of the Letter Patent. There a suit was filled by the appellant for recovery of money and ad valorem court-fee was paid on the amount claimed both in the trial court and in the first appellate court and in second appeal. In memorandum of appeal filed under section 5 of Kerala High Court Act, it was contended that fixed court-fee was payable under schedule II, Article 3 of the Kerala Court-fees and suits valuation Act. But, that contention was negative by the special bench of then Kerala high court holding the Sch. II, Art. 3 (a) (2) is applicable only to appeals against 'orders' and not appeals against other 'judgements' or 'decrees' and it cannot be said that the provisions apply in each and every appeal under Section 5 of the Kerala high court Act.'

9. The learned counsel for the appellant relies upon a ruling of this court in Edig Muniyya v. State of Andhra Pradesh, (1961) 2 Andh WR 113 in that case, an appeal was filed under clause 15 of the letters patent against an order in a civil Miscellaneous petition pending disposal of a writ petition filed under Article 226 of the constitution with a court-fee of Rs. 2/- under section 49 of the Act. The office raised an objection that a court-fee of Rs. 100/- under Sch. II, Art. 3 (iii) (A) (2) (b) should be paid. It was contended before the learned judges that appeals filed against orders were excluded from Article 3 and they were governed by the provisions of Section 49 of the Act. But, that contention was negatived and it was held that Section 49 is a general provision while Article 3 is a special provision dealing with appeals against certain types of orders, and that Article 3 is specifically made applicable under clause 15 of the letters patent and not section 49 and therefore, the special provision excludes the general provision and in that view, held that the Letters patents appeal being against an order, the provisions of Sch. II, Art. 3 were attracted and a court-fee of Rs. 100/- was payable. This case far from supporting the contention of the appellant supports the view taken by us that appeals filed under clause 15 of the letters patents against orders are governed by Sch. II, Article 3 (iii) (A) (2).

10. In the instant case, the appeal having been filed against a judgement which constitutes a decree and not an order, the appellant is liable to pay on the memorandum of letters patent appeal, the same court-fee which was payable in the lower courts, by virtue of the provisions of section 49 of the Act. The reference is ordered accordingly and the appellant is directed to pay the deficit court-fee within 15 days from today.

11. Order accordingly.


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