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V.M. Mathew Vs. Cicity John and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 2976 of 1979-I
Judge
Reported inAIR1982Ker56
ActsKerala Court-fees and Suits Valuation Act, 1960 - Sections 12, 12(1), 12(2), 12(3), 12(4) and 16; Code of Civil Procedure (CPC) , 1908 - Sections 21(2)
AppellantV.M. Mathew
RespondentCicity John and ors.
Appellant Advocate P.K. Kesavan Nair and; K.N. Narayana Pillai, Advs.
Respondent Advocate Chakkappan Kalliath and; P.O. Abdul Kader, Advs.
DispositionRevision allowed
Cases ReferredSumithra v. Kamala Bair
Excerpt:
.....pertaining to jurisdiction of appellate court to consider and decide sufficiency of court fee paid in appeal - whether contention that appeal was not maintainable valid - forum of appeal depends upon valuation of subject matter - any dispute about valuation and forum of appeal be taken at earliest opportunity - objection about pecuniary jurisdiction be raised before trial court at appropriate stage - as respondents failed to raise it at that time it was not permissible for respondents to raise same before appellate court at stage at which it was raised - contention that appeal was not maintainable not valid. - - the court below after considering the plea raised held that the objection regarding court-fee was well founded and therefore directed the petitioner to file a valuation..........the jurisdiction of the appellate court to consider and decide the sufficiency of the court-fee paid in appeal falls for decision in this revision. the petitioner was the appellant in a. s. no. 23 of 1979 on the file of the district court, ernakulam. that was an appeal against the judgment and decree in o. s. no. 390 of 1976 on the file of the sub court, ernakulam, filed by the 3rd respondent, the state bank of india, thevara branch, ernakulam, as an interpleader suit. the bank had taken on rent two flats of a building from the father of the petitioner and respondents 1 and 2. since respondents 1 and 2 claimed exclusive right over the properties, the bank was not in doubt as to the person to whom rent had to be paid or the person to whom it had to surrender the property. in fact the.....
Judgment:
ORDER

V. Khalid, J.

1. The jurisdiction of the appellate Court to consider and decide the sufficiency of the Court-fee paid in appeal falls for decision in this revision. The petitioner was the appellant in A. S. No. 23 of 1979 on the file of the District Court, Ernakulam. That was an appeal against the judgment and decree in O. S. No. 390 of 1976 on the file of the Sub Court, Ernakulam, filed by the 3rd respondent, the State Bank of India, Thevara Branch, Ernakulam, as an interpleader suit. The Bank had taken on rent two flats of a building from the father of the petitioner and respondents 1 and 2. Since respondents 1 and 2 claimed exclusive right over the properties, the Bank was not in doubt as to the person to whom rent had to be paid or the person to whom it had to surrender the property. In fact the Bank obtained some other building and wanted to surrender the building to the owner. Because of the dispute between the petitioner and respondents 1 and 2 the Bank had to file the suit in question. The suit was valued for purpose of jurisdiction at Rs. 6,300/-. Fixed Court-fee of Rs. 100/- was paid under Section 50 of the Court Fees Act (for short the Act). The trial Court decreed the suit holding that the property in question belonged to defendants 1 and 2. The petitioner, who was the 4th defendant in the suit, filed an appeal paying a Court-fee of only Rs. 100/-. The appeal was heard on 9-10-1979 and was posted for judgment to 18-10-1979. The learned Judge, who heard the appeal, wanted certain clarifications about the construction of two documents and therefore reposted the appeal for hearing to 23-10-1979. On that day the counsel for respondents 1 and 2 raised a question of Court-fee. The appeal was posted for orders on this question on 31-10-1979. Thereafter, I. A. No. 1247 of 1979 was filed by them stating that the Court had no jurisdiction to entertain the appeal. The Court below after considering the plea raised held that the objection regarding Court-fee was well founded and therefore directed the petitioner to file a valuation statement regarding the subject matter of the suit according to Section 48 of the Act. Hence this revision.

2. The provision regarding Court-fee in interpleader suits is contained in Section 48 of the Act, which reads as follows:

'48. Interpleader suits.-- (1) In an interpleader suit, fee shall be payable on the plaint at the rates specified in Section 50.

(2) Where issues are framed as between the claimants, fee shall be payable computed on the amount of the debt or the money or the market value of other property, movable or immovable, which forms the subject matter of the suit. In levying such fee, credit shall be given for the fee paid on the plaint; and the balance of the fee shall be paid in equal shares by the claimants who claim the debt or the sum of money or the property adversely to each other.

(3) Value for the purpose of determining the jurisdiction of Courts shall be the amount of the debt, or the sum of money or the market value of other property to which the suit relates.'

Court-fee was paid as already indicated under Section 50. Since the valuation shown in the plaint was less than Rs. 10,000/-, Court-fee payable was Rs. 100/-. Section 48(2) provides for payment of Court-fee on the market value of the property involved in the suit after settling of issues between the claimants. The trial Court should have therefore directed payment of Court-fee on Rs. 6,300/- in equal shares by the petitioner and respondents 1 and 2. This provision escaped the notice of the trial Court and a decree was passed without calling upon the parties to pay additional Court-fee as provided in Section 48 (2) of the Act. It was after the appeal was heard in full that the belated application by the respondents 1 and 2 was filed alerting the Court of its lack of jurisdiction to hear the appeal and about the insufficiency of Court-fee. The case of respondents 1 and 2 was that the property was worth more than Rupees 10,000/-.

3. The Court below relied upon Section 12(4) of the Act and held that an appellate Court had jurisdiction to consider the sufficiency of the Court-fee paid at any time and that there was no fetter on that Court's power and hence directed the petitioner, in the first instance, to file a valuation statement regarding the subject matter of the suit and for payment of Court-fee according to the valuation statement approved. The Court below made a passing reference to Section 16 of the Act, which according to him would control only the trial Court, but not the appellate Court.

4. The petitioner's counsel submits that the order of the Court below is wrong, since it has not properly understood the content of Section 12(4) of the Act. For better appreciation of the submission made, I read Section 12(4) with the Explanation :

'12. (4) (a) Whenever a case comes up before a Court of Appeal, it shall be lawful for the Court, either of its own motion or on the application of any of the parties; to consider the correctness of any order passed by the lower Court affecting the fee payable on the plaint or in any other proceeding in the lower Court and determine the proper fee payable thereon.

Explanation :-- A case shall be deemed to come before a Court of Appeal even if the appeal relates only to a part of the subject-matter of the suit.'

The Court below overruled the contention that its jurisdiction under Section 12(4) was limited. Reliance was placed on Janki Amma v. Krishnan (1978 Ker LT 463) and Sumithra v. Kamala Bair (ILR (1979) 2 Ker 124) : (AIR 1979 Ker 164) by the petitioner's counsel before the learned appellate Judge. The learned Judge held that the principles enunciated in those decisions would not apply to a proceeding in an appellate Court and were relevant only so far as the trial Court was concerned.

5. I shall now consider the scope and content of Section 12(4). The Court of appeal under this Section can consider the question of Court-fee either of its own motion or on the application of any of the parties. But it is necessary to note as to what matter the Court of appeal can consider. It is not every question that the appellate Court is enabled to consider by Section 12(4). The section enables the appellate Court to consider 'the correctnes of any order passed by the lower Court affecting the fee payable on the plaint or in any other proceeding in the lower Court'. Every word in this part of the section is important. Section 12(4) enables the Court of appeal to consider an order passed by the lower Court affecting the Court-fee paid in that Court. It is not the sufficiency of the Court-fee paid in appeal that is contemplated in the section. If it is the sufficiency of the Court-fee paid in appeal, the respondents' counsel would be justified in his support to the position taken by the Court below. When there is an order passed by the Court below regarding the Court-fee payable on the plaint or in any other proceeding, such an order can be challenged in appeal even if the appeal relates only to a part of the subject-matter of the suit -- see Explanation. We do not have in this case any order passed by the lower Court affecting the fee payable on the plaint. The situation obtaining in this revision is that of an objection made by respondents 1 and 2 about the sufficiency of the Court-fee paid in appeal. By no stretch of imagination can it he said that Section 12(4) enables the Court of appeal to consider this objection. I find that the Court below was in error in holding that Section 12(4) gives wide powers to the appellate Court to consider the question of sufficiency of Court fee paid in the appeal.

6. This takes me to the question when and under what circumstances a Court of appeal can consider the sufficiency of Court-fee paid in appeal. For this we have to understand Section 12 and Section 16. Section 12 contains five sub-sections. I have already considered the scope of Section 12(4). Section 12(5) is not relevant for our purpose. Section 12(1), (2) and (3) deals with the different stages at which the question of Court-fee on a plaint can be taken up. Regarding the scope and content of Section 12 of the Act I can do no better than quote what Vadak-kel, J. said in Sumithra v Kamala Bair (ILR (1979) 2 Ker 124) : (AIR 1979 Ker 164), following his earlier decision reported in Janki Amma v. Krishnan (1978 Ker LT 463). The learned Judge has, with respect, correctly highlighted the five specified stages at which the question of Court-fee payable on a plaint could be taken up. I quote the quotation from Janaki Amma v. Krishnan (1978 Ker LT 463), which the learned Judge has quoted in Sumithra v. Kamala Bair (ILR (1979) 2 Ker 124 at p. 127) : (AIR 1979 Ker 164 at p. 165) :

'Firstly, the Court has to decide that question before ordering registration of the plaint, and at this stage the Court cannot travel outside the materials and allegations contained in the plaint and the materials contained in the statement, if any, filed under Section 10 of the Act-- Section 12(1). Secondly, thereafter the Court can take up this question for decision only if a defendant raises the same by his written statement filed before the first hearing or before evidence is recorded on the 'merits of the claim' (as defined in the Explanation to Section 12) and when so raised, the Court has to give a decision thereon before evidence is recorded affecting such defendant -- Section 12(2). Thirdly, a person added as a defendant after framing of issues (but not as a successor or representative in interest of one already on record and who had opportunity to raise the question) may, with the permission of the Court, raise it again, and if so raised, the Court can determine the sufficiency of the Court-fees paid before recording of evidence affecting such defendant on the merits of the claim -- Section 12(3). Fourthly, whenever a party becomes liable to pay 'additional fee' by reason of an issue framed in the suit, the Court can determine and levy such 'additional fee' (Section 13) in accordance with the provisions of Section 12 -- Fifthly, further review of the decision on the question of deficiency of Court-fee paid is possible only on receipt of report from a Court-fee examiner deputed by the High Court under Section 18(1) of the Act.'

In other words, the sufficiency of Court-fee can be questioned at the threshold by the Court at the time of registration of the plaint. The second stage comes when the defendant or defendants question the sufficiency of Court-fee by filing their written statement. The Court has then to decide about the Court-fee paid on the objection raised by the defendant. The first stage is governed by Section 12(1) and the second, by Section 12(2). The third stage comes when a party not originally on record, but impleaded after framing of issue raises the question of Court-fee. Fourthly, when additional Court-fee becomes payable when a new issue is framed and fifthly, when the question of deficiency of Court-fee happens to be reviewed by Court-fee examiner deputed by the High Court. This provision relates to suits at the trial stage. The question is whether any of these provisions applies to appeals. It is for this reason that Section 16 of the Act has to be looked into Section 16 reads as follows ;

'16. Fee payable on appeals etc. --

The provisions of Sections 10 - 14 relating to the determination and levy of fee on plaints in suits shall apply mutatis mutandis to the determination and levy of fee in respect of a memorandum of appeal, cross-objection or other proceeding in second appeal or in an appeal under Section 5 of the Kerala High Court Act, 1958.'

This section, provides for application of Sections 10 - 14 for the determination and levy of fee in respect of a memorandum of appeal or cross-objection with necessary changes. The provisions of Section 12(1), (2) and (3) are to be extended to appeals because of the words 'mutatis mutandis'. These words mean that the section in question could be made applicable with such changes as would be necessary, and as would make the provision useful. In an appeal there is no written statement and no settling of issues. Even then one has to see whether the provisions of Section 12(1), (2) and (3) can be made applicable to determine Court fee paid or payable in appeal. If Section 12(1) enables the office to object and the Court to decide the sufficiency of Court-fee at the threshold, it would, read with Section 16, enable the appellate Court to decide the sufficiency of Court-fee at the time the memorandum of appeal is presented. Since the respondent in an appeal does not file a written statement, he can either at an intermediate stage or at the time the appeal comes up for hearing object to the sufficiency of Court-fee paid in appeal. This can be done by the combined operation of Section 12(2) and (3) read with Section 16. If the trial Court is prevented from considering the sufficiency of Court-fee after settling of issues, more so should an appellate Court be prevented from considering the sufficiency of Court-fee after the appeal is heard by the appellate Court. The scheme of the provisions contained in Section 12 prevents the plaintiff to be the sole arbiter of the amount on which the relief sought by him is to be valued. It gives the defendants also an opportunity to raise questions regarding Court-fee payable. But this opportunity is limited to the stage after the suit has entered the stage of recording of evidence. Same principle should apply to the case of appeals also. This is the limitation imposed on the appellate Court to consider the question of Court-fee. I therefore hold that the appellate Court went wrong in holding that it has powers to determine the Court-fee payable at any stage of the appeal and in so doing the Court below committed an error of jurisdiction.

7. The counsel for the respondent strongly relied upon Section 52 of the Act. According to him, the words used in Section 52 of the Act are not 'the fee payable in an appeal shall be the same as the fee that is paid in the Court of first instance on the subject-matter of the appeal,' but that the 'fee payable in an appeal shall be the same as the fee that would be payable in the Court of first instance'. The use of the word 'would be payable' denotes the conferment of jurisdiction as the appellate Court to examine whether the Court-fee paid is really the Court-fee payable in the Court of first instance. This submission can be accepted only if the objection had been raised at the appropriate stage as indicated above and not at any stage. The settled law regarding interpretation of fiscal statutes is that their provisions should be liberally construed in favour of the subject and that a rigid construction of these sections should be discouraged. The scheme of the Court Fees Act is to prevent litigants from raising the question of Court-fee at any stage and limiting such questioning to certain definite stages. The respondents 1 and 2 not having questioned the sufficiency of Court-fee at the appropriate stage, their attempt at the last stage cannot be entertained.

8. One other submission made by respondents' counsel is that since the value of the subject-matter is above Rs. 10,000/-the appeal had to be filed in the High Court and that the District Court had no pecuniary jurisdiction to entertain or hear the appeal. If the subject-matter is above Rs. 10,000/- the appeal has only to be filed in the High Court. Here again the respondents have obstacles to overcome. Under Section 21 of the Civil Procedure Code the objection about jurisdiction has to be taken in the Court of first instance at the earliest possible opportunity. Before the amendment of 1976, the objection could relate only to the place of suing. Section 21 as originally stood did not relate to pecuniary limits of the Court's jurisdiction, but in 1976, Section 21(2) was introduced, by which limitation was put on an objection as to the competency of the Court with reference to its pecuniary limits also. Section 21(2) reads as follows :

'No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.'

Among the objects and reasons of this provision it is stated as follows :

'It often happens that the judgment of the Court is challenged in appeal or revision not only on the ground of place of suing but also on the ground of pecuniary jurisdiction of the Court. With a view to expediting the disposal of suits, a new sub-section, similar to the provisions of Section 21, is being included in Section 21 to the effect that objections as regards pecuniary jurisdiction should be raised at the earliest opportunity and, even if so taken, should not prove fatal unless there has been a consequent failure of justice.'

In this case till the last moment in appeal the question of the pecuniary limits of jurisdiction was not raised. The respondents' counsel contends that the suit was in the Sub Court. It has unlimited jurisdiction. Therefore there was no need to raise the question. This submission overlooks the fact that the forum of appeal depends upon the valuation of the subject-matter and any dispute about the valuation and forum of appeal should have been taken at the earliest opportunity. The objection about pecuniary jurisdiction should have been raised before the trial Court at the appropriate stage. Not having raised it then, it is not permissible for the respondents to raise the same before the appellate Court at the stage at which it is raised. Therefore the submission that the appeal itself was not maintainable has to fail.

In the result, I set aside the order of the Court below and direct it to proceed with the appeal. I allow this Civil Revision Petition with costs.


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