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Anantha Naicken Rama Naicken Vs. Vasudev Naickan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 15 of 1964
Judge
Reported inAIR1967Ker85
ActsCode of Civil Procedure (CPC) , 1908 - Order 7, Rule 11; Court Fees Act, 1870 - Sections 6
AppellantAnantha Naicken Rama Naicken
RespondentVasudev Naickan and ors.
Appellant Advocate S. Bhoothalinga Iyer, Adv.
Respondent Advocate Narayanan Potti and; N.K. Varkey, Advs. for Respondents Nos. 6, 7, 8 and 10 and;Government Pleader
Cases ReferredJaya Motion Pictures Ltd. v. New Theatres Ltd.
Excerpt:
.....is taken by the court fee examiner to the correctness of the court fee paid by a party in a suit or appeal and when the party contests the view taken by the court fee examiner, the court has a duty to consider the nature of the objections raised by the court fee examiner, the explanation offered by the party concerned or his answers to the objection raised by the court fee examiner, and that the court concerned must also pass an order setting out all these aspects and express clearly its view as to whether it accepts the opinion of the court fee examiner or whether it accepts the stand taken by the party concerned. trial courts and lower appellate courts must remember that the orders passed by them in such matters are not final and they are subject to an appeal or revision to this..........mr. s. bhoothalinga iyer, learned counsel for the plaintiff petitioner challenges the order of the learned district judge of alleppey dated 31-10-1963 passed in a. s. no. 294 of 1963.2. the plaintiff instituted the suit o. s. 91 of 1960 in the subordinate judge's court, alleppey, claiming various reliefs. one of the issues framed in the suit related to the question as to whether proper court fee has been paid. that was the subject of issue no. 3. the trial court, after recording findings on the various points, has also dealt with issue 3, and taken note of the contentions of the plaintiff that the suit has been properly valued and proper court fee has been paid, and also the contention of the defendants that the court fee paid is inadequate. in this connection the trial court no doubt.....
Judgment:
ORDER

C.A. Vaidialingam, J.

1. In this revision petition Mr. S. Bhoothalinga Iyer, learned counsel for the plaintiff petitioner challenges the order of the learned District Judge of Alleppey dated 31-10-1963 passed in A. S. No. 294 of 1963.

2. The plaintiff instituted the suit O. S. 91 of 1960 in the Subordinate Judge's Court, Alleppey, claiming various reliefs. One of the issues framed in the suit related to the question as to whether proper court fee has been paid. That was the subject of issue No. 3. The trial Court, after recording findings on the various points, has also dealt with issue 3, and taken note of the contentions of the plaintiff that the suit has been properly valued and proper court fee has been paid, and also the contention of the defendants that the court fee paid is inadequate. In this connection the trial court no doubt has taken the view that the case reported in Jaya Motion Pictures Ltd. v. New Theatres Ltd., Palai 1956 Ker LT (SN) 9 is applicable to the case on hand, and therefore the court fee has to be paid on the basis of the valuation of the suit. But curiously enough, the trial court has further stated that inasmuch as it is dismissing the suit, it is unnecessary that the plaintiff should be called upon to pay additional court fee.

3. That is absolutely an erroneous view taken by the trial court. If it is found at the hearing that deficit court fee has not been paid, the proper thing would be to stop further hearing of the matter and direct the plaintiff or the party concerned to pay the necessary court tee and then only resume the hearing; and in default of such compliance, to reject the plaint or memorandum of appeal. I am only adverting to this aspect for considering the correctness or otherwise of the order of the learned District Judge which is under attack in this revision petition. The question of the correctness of the court fee paid on the plaint formed the subject of an issue, and the trial court has expressed an opinion that court fee has to be paid on the basis of the valuation of the suit. Which means, the plaintiff has not paid the proper court fee on the plaint.

4. The plaintiff challenged the dismissal of the suit, by filing A. S. No. 294/63 before the learned District Judge of Alleppey. In the memorandum of grounds of appeal filed by the petitioner, he has raised a ground of attack against the finding recorded by the trial court on issue 3, and in that ground it is stated that the view of the trial court that the decision in 1956 Ker LT (SN) 9 is applicable, obviously relates to the view taken by the trial court that on the basis of that decision the court fee paid by the plaintiff is not correct. Therefore, it will be seen that the question as to whether correct court fee has been paid or not, was the subject of adjudication by the trial court and it was also subject of attack by the petitioner before the learned District Judge in appeal.

5. It is seen that the office of the learned District Judge appears to have raised objection regarding the correctness of the court fee paid by the appellant, and the learned District Judge has in a cryptic order passed an order dated 31-10-1963, which is to the following effect: 31-10-1963. Pay deficit court fee as pointed out by the court fee Superintendent on or before 30-11-1963.' This method of disposing of court fee matters has been very strongly deprected by me in my order in C. R. P. No. 22/1964, which itself was against an order passed by the learned District Judge of Alleppey. In that order I have clearly indicated that when objection is taken by the court fee Examiner to the correctness of the court fee paid by a party in a suit or appeal and when the party contests the view taken by the court fee Examiner, the court has a duty to consider the nature of the objections raised by the court fee Examiner, the explanation offered by the party concerned or his answers to the objection raised by the court fee Examiner, and that the court concerned must also pass an order setting out all these aspects and express clearly Its view as to whether it accepts the opinion of the court fee Examiner or whether it accepts the stand taken by the party concerned. Unfortunately in this case, there is absolutely no indication to that effect. Trial Courts and lower appellate courts must remember that the orders passed by them in such matters are not final and they are subject to an appeal or revision to this Court, and this Court is certainly entitled to expect that minimum assistance at any rate from the Subordinate courts, of expressing clearly in their orders as to the nature of the objection raised by the court fee Examiner, the defence raised to it by the party concerned and the reasons which prompted the courts to take a particular view. It is rather regrettable that a learned District Judge, should pass an order like the present one.

6. But I do not propose to take upon myself a duty which the subordinate courts must properly discharge under these circumstances. And speaking for myself, I do not propose to permit the subordinate courts to abdicate themselves from discharging those functions. On this short ground, the order of the learned District Judge is set 'aside, and the matter is remanded to the lower appellate court. The learned District Judge need not waste his time by taking up the question of the correctness or otherwise of the court fee paid on the memorandum of appeal in the first instance. In the appeal itself one of the points that has been raised by the appellant relates to the view expressed by the trial court on issue 3 in the suit. Therefore the learned District Judge will take up the appeal for hearing arid formulate all the points that arise for decision. The very first point that will have to be formulated by the learned District Judge as arising for consideration will be regarding the correctness of the court fee paid by the petitioner both in the trial court as well as on the memorandum of appeal. So far as that limited aspect is concerned, the learned District Judge will issue notice to the Government Pleader of the District; and after hearing all parties regarding that aspect, the learned District Judge will express his view one way or the other, and postpone further hearing by a month on the other points, so as to enable the parties aggrieved by his decision on court fees to challenge the same in this court.

7. Subject to these directions and observations the order under attack is set aside, and thematter will be taken up and disposed of by thelearned District Judge in the manner indicatedabove. The parties will bear their own costs.Case remanded.


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