1. The Question raised is whether proper court-fee has been paid on the memorandum of appeal filed in an appeal preferred under Section 5 of the Kerala High Court Act, 1958. The suit which gave rise to this proceeding was laid by the appellant-plaintiff for realisation of an amount of Rs. 3,138.20 charged on the property scheduled to the plaint. Ad valorem court-fee was paid on the amount claimed under Section 22 of the Kerala Court-fees end Suits Valuation Act, 10 of 1960 (for short, the Act), in the trial Court, in the first appellate Court and in S A, 1182/1969 of this Court In the memorandum of appeal now under consideration, the valuation shown is the original claim, namely. Rs. 3,138.20. but the fixed court-fee of Rs. ID/- alone was paid re-(Contd, on Col. 2)lying on Schedule II. Article 3 (A) (2) (a) of the Act The Taxing Officer raised the objection that ad valorem court-fee is payable on the valuation shown under Section 52 of the Act.
2. The relevant provisions of Article 3 of Sen. II of the Act is extracted helow:
'Memorandum of appeal from an order inclusive of en 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 x x x
(2) Where the appeal is underSection 5 of the Kerala High CourtAct 1953--
(a) From an order passed inexercise of appellate jurisdiction. ...
(b) From an order passed in exercise of originalJurisdiction, which would, be appealable under the Code of Civil Procedure, 1908, had it been passed by a SubordinateCourt. ...
(c) In any other case.
One hundred rupees.'
On the basis of the expression 'where the appeal is under Section 5 of the Kerala High Court Act. 1958' occurring in the opening part of clause (2) and also the expression 'in any other case' used in item fc) of clause (2). it is contended on behalf of the appellant that as far as appeals under Section 5 of the Kerala High Court Act 1958 are concerned. Art. 3 (A) (2) of Sch. II of the Act is the exclusive provision made by the legislature in the matter of levying court-fee. The contention conveniently ignores the general scheme and other relevant provisions of Article 3 of Sch. II. The opening paragraph of Article 3 clearly shows that the entire article is intended to cover only appeals against 'orders' referred to thereunder. consistent with that scheme items (a) and (b) of clause (2) refer only to 'order' and not to any 'judgment' or 'decree*. In the context in which it occurs the residuary provision contained in item (c) could be construed only as providing for 'orders' not falling within items (a) & (b).
3. Section 5 (iii) on the strength of which the present appeal has been preferred is in the following terms:--
'5. An .appeal shall lie to a Bench of two Judges from-
X X X X
(iii) a fudsment of a Single Judge to the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by e subordinate Court, if the Judge who passed such ludgment certifies that the case is a fit one for appeal.'
It Is clear from the provision that tHe ludgment 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 lurisdiction. Clauses (i) and (ii) of Section 5 have also taken particular care to make an order apoealablp under that provision. It is not possible to accept the suggestion of the appellant that the expressions 'ludgment' 'decree' and 'order' occurring in Section 5 of the Kerala High Court Act are to be construed in the same sense for the purposes of levying court-fee tor any and every appeal under that section. Considering the language of Section 5 of the Kerala High Court Act and Art, 3 of Sch. II of the Act and also the context In which clause (A) (2) of Article 3 occurs, there cannot be any doubt that it is only appeal against an 'order* under Section B of the Kerala High Court Act that can attract Sch. II, Art. 3 (A) (2) of the Act and that all other appeals under Sec. 5 are to be taxed under other appropriate provisions of the Act.
4. Apart from the clear wording of Section 5 of the Kerala High Court Act and Art 3 (A) (2) of Sch. II of the Act. In principle also, it is difficult to presume that the legislature would have intended to sive a favoured position to all appeals under Section 5. in the matter of lew of court-fee. An appeal under Section 5 of the Kerala High Court Act does not materially differ in its legal ingredients from any other appeal ore-ferred under relevant provisions of the Code of Civil Procedure or any other law. Section 21 of the Act enjoins that the fee payable under the Act shall be determined or computed in accordancewith the provisions of Chapters IV. VI. IX and Schs. I and II. Schedule I of the Act covers oases where od valorem court-fee is payable whereas Sch. II specifies the cases where a fixed amount is to be paid as court-fee. When by its very nature, an action has to be and was also taxed on ad valorem basis at all Previous stages of the litigation, it is only normal and reasonable that it should, bear the same burden if it goes for adjudication before this court under Section 5 of the Kerala High Court Act There is nothing in Section 5 of the Kerala High Court Act or the taxing statute to indicate that the legislature wanted to tax appeals under Section 5 differently ,and that too with more lenience to the litigant.
5. No decision directly dealingwith the controversy on hand was brought to our notice by either of the parties, and the cases cited by the learned counsel for the appellant were not of much assistance in resolving the dispute. Sree Kumaran Vasudevan v. Vasudevan Narayanan. 1969 Ker LJ 631 and St Paul's Yokkobaya Suriyani Church v. Ithapplri. 1971 Ker LT 871. were concerned with the scope of Section 5 of the Kerala High Court Act. In the former, the question raised was whether an order passed by a single ludge on an application under Section 7 of the Kerala Act 31 of 1958 for amending the decree could be appealed against under' Section 5. The answer was in the affirmative. In the latter, the court held that no appeal lies under Section 5 against an order passed by a single Judge disposing of a civil miscellaneous appeal preferred against an order of remand. In Ramanu-jam v. Forest Range Officer, (1966) 2 Mad LJ 375 the Madras High Court held that on a memorandum of appeal presented by an accused in a criminal case against Ms conviction and sentence court-fee should be naid under Art 3 (1) and not 31 (g) of Sch, II of the Madras Court-lees and Suits Valuation Act. 1955. It was observed that the word 'order* in the context of a criminal appeal should be taken to include a judgment leading to an order of conviction or acquittal and 68 such court-fee is payable under Article 3 (1) of Sch, II. The decision rests mainly upon the circumstance that there la no definition of 'judgment' in the Code of Criminal Procedure, and consequently, that decision also is not of much as* dstance to the appellant.
Article 3 (A) (2) of Sch. II of the Act came up for consideration in Devassiav, State of Kerala. 1965 Ker LT 69. In that, case an order parsed in an original petition by a single Judge was sought to be appealed against and the appellant Paid court-fee of only Rs. 25/- which was the court-fee paid on the original petition. Objection was raised bv the Taxing Officer to the effect that court-fee was payable under Art. 3 (A) (2) of Sch. II of the Act The Taxing Officer's objection was upheld. Madhavan Nair. J., held that if Sch, II of the Act is read as part of Section 21 in Chapter IV of the Act it would obviously be a particular provision, in relation to that in Section 52 which is general, in the matter of computation of court-fees on appeals in Courts and the rule 'specialia genera-libus derogant' must apply between them. The learned Judge also held that Section 52 of the Act applies only to cases where the court-fee is computed 'on the subject-matter of the appeal' and that it does not apply to proceedings that are charged with fixed fees, irrespective of the subject-matter involved. It was further observed that there is thus no conflict between Section 52 and Sch. II of the Act. M. S. Menon. C. J. reached the same conclusion on a slightly different ground, namely, that in the context in which Section 52 occurs it may be that it has application only to appeals from the suits specified to Sections 22 - 50 and if that be so. Section 52 may not perhaps apply, and the only remaining provision applicable may be Art. 3 (A) (2) of Sch. II. A reading of the decision shows that both the learned Judges who decided the case proceeded on the basis that the case did not fall under Section 52 of the Act Further, the question whether Art. 3 (A) (2) of Sch. II applies to all appeals under Section 5 of the Kerala High Court Act was not considered at all The decision, therefore, does not specifically deal with the question raised in this case. On the other hand, the observations made by M. S. Menon. C. J.. may lend support to the view that Section 52 of the Act may apply to appeals from suits specified in Sections 22 - 50.
6. For the reasons stated above, we are unable to accent the contention of the appellant that Article 3 (A) (2) of Sch, II applies to each and every appeal under Section 5 of the Kerala High Court Act. and we hold that the said provision Is applicable only to appeals againstorders' and not to appeals against otherjudgments' or 'decrees'.
7. Since the appeal on band Is one man a Judgment and a decree of the single Judge. It is necessary to consider under which other provision of the Act court-fee has to be paid on the memorandum of appeal. Section 62 which SBthe general provision in the Act relating to appeals enioins 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 eubiect-matter of the appeal. For the memorandum of appeal filed in the second appeal, court-fee was apparently paid under Section 52 of the Act. Neither the language of Section 52. nor the general scheme of the Act lend support to the suggestion of the appellant that the expression 'appeal' in Section 52 does not take in an appeal under Section 5 of the Kerala High Court. Act. In the instant case, the subject-matter of the suit as well as of all appeals arising thereunder is Rupees 3,138.20 and in view of Section 22 of the Act. the fee that was payable in the Court of first instance was ad valorem court-foe. Consequently, for the present appeal also, court-fee is payable on the same basis in view of Section 52 of the Act. end we order so. Since the appellant has paid only Rs. 10/- as court-fee, he will pay the deficit court-fee within two weeks from this date.