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S.R. Narayana Ayyar Vs. Mavalathara Veerankutti and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1958)1MLJ263
AppellantS.R. Narayana Ayyar
RespondentMavalathara Veerankutti and ors.
Cases ReferredRamamirtham v. Rama Film Service
Excerpt:
- .....three civil revision petitions arise out of a common order passed by the learned principal judge, city civil1 court, in g.s. nos. 224 of 1950, 353 of 1947 and 272 of 1950 and some'other suits transferred for disposal to the file of the city civil court from the original side of the high court.'2. the madras city civil court act (vii of 1892) was amended by madras act x of 1955. the main purpose of this amending act was to enhance the pecuniary jurisdiction of the city civil court from rs. 10,000 up to rs. 50,000. in consequence, section 8 of madras act x of 1955 enacted a transitory provision in the following terms:transitory provision (1).--all suits pending in the high court on the date of the commencement of this act and which would be within the cognizance of the madras city civil.....
Judgment:

Basheer Ahmed Sayeed, J.

1. These three Civil Revision Petitions arise out of a common order passed by the learned Principal Judge, City Civil1 Court, in G.S. Nos. 224 of 1950, 353 of 1947 and 272 of 1950 and some'other suits transferred for disposal to the file of the City Civil Court from the Original Side of the High Court.'

2. The Madras City Civil Court Act (VII of 1892) was amended by Madras Act X of 1955. The main purpose of this Amending Act was to enhance the pecuniary jurisdiction of the City Civil Court from Rs. 10,000 up to Rs. 50,000. In consequence, Section 8 of Madras Act X of 1955 enacted a transitory provision in the following terms:

Transitory provision (1).--All suits pending in the High Court on the date of the commencement of this Act and which would be within the cognizance of the Madras City Civil Court under the provisions of this Act shall stand transferred to the Madras. City Civil Court.

By a further amending Act, Madras Act XXIX of 1955, this transitory provision was amended to read as follows:

All suits pending in the High Court' on the date of the commencement of this Act and witch would be within the cognizance of the Madras City Civil Court under the provisions of the said Act as amended by this Act shall stand transferred to the Madras City Civil Court.

Clause (2) of Section 8 is not relevant for the purpose of these petitions. By virtue of this transitory provision a number, of suits (13 in number) referred to in the common order, from which these Civil Revision Petitions have arisen, were transferred from the Original Side of the Madras High Court to the City Civil Court. After such transfer, a question arose as to whether additional Court-fee should be paid on the suits so transferred and which were pending trial before that Court. Notices were ordered to the parties and the present petitioners filed, their objections. After hearing the parties and the Government Pleader, the learned Principal City Civil Judge passed the order under revision holding that the plaintiffs should pay additional Court-fee as per law and gave them time for paying the additional Court-fee. In doing so, the learned Principal City Civil Judge based his decision on the rulings contained in Ragunath Ganesh v. Vaman Vasudeo : AIR1950Bom234 , Official Assignee, Madras v. Rangannthan : AIR1951Mad1012 and Ramamirthatn v. Rama Film Service (1951) 2 M.L.J. 121.

3 . Mr. G. N. Chari, learned Counsel for the petitioners, before us, contended in the first instance that under Section 87(2) of Act XIV of 1955' that is the newly enacted Court-Fees and Suits Valuation Act, additional Court-fee could be claimed only if the suits had been instituted in the City Civil Court, where they are to be tried, before the commencement of Act XIV of 1955, and that these suits having been instituted on the Original Side of the High Court and subsequently transferred to the City Civil Court the saving Clause (2) of Section 87 will not apply. We do not think that there is any force in this contention of the learned Counsel for it has to be noted that when the suits in question were originally instituted in the High Court on its Original Side, the fee payable was regulated hot by the Court-Fees Act, and Suits Valuation Act but by the Fees Rules framed by the High Court for the: institution of suits on the Original Side. The fee prescribed by the said Original. Side Rules had been paid on these suits, when they were instituted, and consequently the Suits must be considered to have been properly instituted so far as the High Court was concerned. Since the Court Fees Act does not govern the institution of suits on the Original Side of the High Court, the argument based on Section 87(2) cannot be considered to be relevant to the point that arises for consideration in these petitions.

4. These are suits which have been properly instituted on the Original, Side but have later, been transferred to the City Civil' Court for trial, and the transfer has been under Section 8 of Madras Act, X of 1955. But the learned Government Pleader urged that Section 16, proviso (3) of Central Act, VII of 1892,: would govern the. present case. If that contention is to prevail, we have to see whether the transfer of'. these suits has taken place under the powers exercised by the High Court under proviso (2) to Section 16 of' Act VII of 1892. Section 16, proviso (2), is in the following terms':

Nothing in this Act contained shall affect the Original Civil Jurisdiction of the High Court provided that (1)...(2) in any suit or other proceeding pending, at any time in the High Court, any Judge of such Court may, at any stage thereof make an order transferring the same to the Civil Court if in his opinion such suit or proceeding is within the jurisdiction of that Court and should be tried therein.

If an order is made under this proviso, then the 3rd proviso to Section 16,would come into operation. Section 16, proviso (3), is to the effect that

Provided .that (3)- in any suit or other proceeding, so transferred the Court-Fees Act, 1870, shall apply credit being given for any fees levied in the High Court.

It is to be observed that a specific provision has been made for the recovery, of additional Court-fees in case a transfer is effected by an order of the Judge of the High Court under Section 16, proviso (i). As already stated the present suits have, not been transferred by any order of the High Court exercising the power provided in Section 16 proviso (2) of Act VII of 1892, in which case alone proviso (3): to Section 16 will come into operation. In the present case the suits in question have been transferred by virtue of Section 8 of Act X of 1955, which vests rib discretion or option in any Judge of the High Court to make a transfer or not after Act X of 1955 has come into force. On the other hand the statutory provision contained in Section 8 of the said Act Xof 1955 effects an automatic transfer of all suits pending before the High Court which come within the purview of the said Act Xof 1955.

5. In this connection reliance has been placed by the learned Government Pleader upon the decision reported in Official-Assignee, Madras v. Ranganathan : AIR1951Mad1012 , wherein Raghava Rao, J., on the facts of that case held that in respect of a plaint transferred from the Original Side of the High Court to the City Civil. ,'Court the Additional Court-fee could be called for. In that case,, a plaint had been transferred from the Original Side of the High Court to the Madras City Civil court under Section 16, proviso (2) of the Madras City Civil Court.. That being so, proviso' (3) to Section 16 of the City Civil Court Act which provides that the 'Court Fees Act shall apply to such plaints, credit being given for any fees levied in the High Court came into operation ipso facto and therefore he held that the City Civil' Court Was entitled to collect the balance of the Court-fee payable after giving credit for the fee already paid, and repelled the argument that there were no charging provisionis in that Act enabling the levy of additional Court-fee. This decision, in; our opinion, has no application to the facts of the present case.

6. The learned Government, Pleader, next relied upon the decision reported in Raghunath Ganesh v. Vaman Vasudeo : AIR1950Bom234 . In that decision Shah, J., held, ,that when a plaint in a suit filed on the Original Side of the High Court was transferred to the file of a Civil Judge, Senior Division, on application of the defendant, it was governed by Section 6 of the Court Fees Act of 1870, and the plaintiff was liable to pay additional Court-fee on the plaint even though it was sufficiently stamped when filed before the High Court. He also observed that the fact that the plaint was transferred not by reason of a voluntary act on the part of the plaintiff but in pursuance of an order of the Court was not relevant in considering the application of Section 6 and that it could not also be said that in such a case the act of Court was causing prejudice to a party as the transfer had been ordered for reasons of convenience and the order involved consequences including a statutory liability to pay Court-fees. The learned Judge further observed that the circumstance that the plaint was lodged in another Court, which according to the provisions governing it treated it as properly instituted, could not prevent the application of Section 6, Court Fees Act and that the Court-fee payable on a document had to be ascertained under the provisions of the Court Fees Act, at the time when the document was required to be filed, exhibited or received in a Court and that if the document was not adequately stamped at the crucial date, it had no validity. The learned Judge also distinguished the decisions in Bibee Golap Kumari v. Muhammad Kadiruddin 12 C.W.N. 917. We have considered the facts of the case decided by Shah, J., in Ragunath Ganesh v. Vaman Vasudeo : AIR1950Bom234 , and we think that the principle underlying this decision is one which could easily fall within the scope of Section 16, proviso (3) of Madras Act VII of 1892, for it is seen that, in that case, the High Court exercised power vested in it to transfer at any stage a suit from the Original Side to a Civil Judge, Senior Division.' Such transfer may be either suo motu or on the application of the plaintiff or of the defendant as under Section 24, Civil Procedure Code. In Official Assignee, Madras v. Ranganathan : AIR1951Mad1012 Raghava Rao, J., however doubted the correctness of the decision of Shah, J., in Raghunath Ganesh v. Vaman Vasudeo : AIR1950Bom234 the following observations of Raghava Rao, J., seem to be relevant:

It may be that as argued by Mr. Viswanatha Ayyar the ruling of a single Judge of the Bombay High Court reported in Raghunath Ganesh v. Vaman Vasudeo : AIR1950Bom234 , which is relied upon by the learned Government Pleader before me is not correct in so far as it seeks to justify the levy of further Court-fee with reference to Section 6 of the Court Fees Act. I am rather inclined to agree with Mr. Viswanatha Ayyar that the learned Judge of the Bombay High Court has not correctly interpreted the words of Section 6 in holding that they have application to cases of transferred plaints. The learned Judge observes:

The fact that it is not by reason of a voluntary act on the part of the plaintiff that the plaint was transferred but in pursuance of an order of the Court that the plaint was transferred is also not relevant in considering the application of Section 6. That, perhaps, is to subject to an undue strain the language of Section 6 which has reference only to documents received, filed or used in any Court or office without being stamped unless the word ' received ' is to be understood as wide enough to cover plaints received by transfer. Whatever that may be, I feel clear that the language of Section 16, proviso (3) is itself sufficient to imply with reasonable clearness the intention of that Legislature that after the transfer of the plaint from the Original Side of the High Court effect must be given to the provisions of the Court Fees Act which would have applied had the plaint been filed in the first instance itself in the City Civil Court due credit of course being given to the fees already levied in the High Court.

We are ourselves inclined to agree with these observations of Raghava Rao, J. We do not think that the Legislature which enacted Section 6 of the Court Fees Act of 1870 could have intended to give to the term ' receive' used therein such a wide meaning as Shah, J., of Bombay High Court has sought to give it.

7. In Tara Chand v. Radhakrishna Sugar Mills A.I.R. 1955 Cal. 52, to which our attention has been drawn by the learned Government Pleader a converse case came up for consideration before Mukherji, J. The question that arose in that case related to the jurisdiction of the High Court of Calcutta to grant a certificate for refund of Court-fee when a suit was transferred to the High Court under its Extraordinary Original Civil Jurisdiction under clause 13 of the Letters Patent. The learned Judge held that the High Court had no statutory or inherent jurisdiction to make any order either for refund of Court-fees or for the issue of a certificate for such refund in the case of a suit transferred to the High Court in its Extraordinary Original Civil Jurisdiction under clause 13 of the Letters Patent. The case-law on the point has also been discussed elaborately in the said judgment. Sections 3 and 4 of the Court Fees Act (VII of 1870) also come up for consideration. In paragraph 19 of the Judgment at page 56 the learned Judge, interpreting the scope of Section 4 of Act VII of 1870 (Court Fees Act) has observed as follows:

To create an artificial excess by calculation with reference to the fees in the High Court and to grant a certificate for refund of such artificially conceived excess will be to act in derogation of the Statute.

The learned Judge, however, observed further in the following terms:

Here the Legislature has made a special statutory provision for fees on documents in the High Court in its Extraordinary Original Civil Jurisdiction and yet it has not chosen to provide for the refund of fees in case of such transfer. The interpretation therefore appears to be that this Section 4, Court Fees Act, by necessary implication excludes any question of refund of Court-fees in case of transfer of suits to this High Court in its Extraordinary Original Civil Jurisdiction. The learned Standing Counsel argued that Section 4 of the Act could be interpreted to confine the application of that section to documents filed in the High Court although the word used is ' received '. But even then the necessary implication of the section is irresistible that the Legislature did not provide for return of any Court-fee in such cases.

Though that case has no direct bearing on the point that arises for consideration in the present petitions, still the point to be noted in this decision is that, the statute makes no provision for the refund of any excess Court-fee that could be found to have been paid on a calculation with reference to fees payable in the High Court on a transfer of the suit ordered by the High Court. It could not have been the intention of the Legislature that additional Court-fee should be paid by the party when a transfer is effected not by an order of the High Court but by the operation of a provision in the statute itself, when no specific provision is made to that effect in the Act which enhanced the jurisdiction of the City Civil Court.,

8. Our attention has also been drawn to a Full Bench decision in Ramamirtham v. Rama Film Service (1951) 2 M.L.J. 121 ; the main questions that came up for consideration in that decision were the applicability of Section 15 of the Code of Civil Procedure to the High Court exercising Ordinary Original Jurisdiction when there was a conflict between the Original Jurisdiction of the High Court and the City Civil Court constituted under the Madras City Civil Court Act, and the validity of the power conferred by Section 3-A of the Madras City Civil Court Act on the Provincial Government to fix by a notification the pecuniary jurisdiction of the City Civil Court, and also the jurisdiction of the High Court to transfer suits in relation to provisos (1) and (2) of Section 16 of Act VII of 1892 and Section 24 of the Code of Civil Procedure. The question as to the validity of the claim for additional Court-fee on the transfer of suits form the High Court to the City Civil Court did not directly arise in that decision. A perusal of the entire judgment shows that that decision is no authority on the question as to whether the parties were bound to pay additional Court-fee when suits were transferred under a statutory provision from the Original Side of a High Court to the City Civil Court.

9. If the transfer of the suit from the Original Side of the High Court to the City Civil Court is not effected under the 1st or the 2nd proviso to. Section 16 of Act VII of 1892 and if the 3rd proviso to that section does not apply to the transfer in question then the only other section under which a claim for additional Court-fee could be made is Section 6 of Court Fees Act of 1870. A close scrutiny of the terms of this section does not convince us that a transfer of suits from the Original Side of the High Court to the City Civil Court under Section 8 of Act X of 1955 could be brought within the scope of the word 'received' occurring in that section. No doubt, when a transfer is made from one Court to another, there is the receiving Court, and there is also the Court that sends the plaint or the suit records to the other Court; but the question is whether the term 'received' used in this section could be strained to such an extent as to include within its meaning plaints, and suit records that are automatically and statutorily transferred from one Court to another without the intervention of any act on the part of any Court or the parties concerned. We doubt whether such a situation could have been contemplated by the Legislature. If it was, however, the intention of the Legislature when it enacted Act X of 1955 that on such statutory transfer also additional Court-fee should be levied, then nothing could have prevented the Legislature to provide for such levy of additional Court-fee when a statutory transfer of suits was being effected, it being remembered such a provision was actually enacted, under proviso (3) to Section 16 of Act VII of 1892.When 'the Legislature did not choose to provide for such a levy of additional Court-fee, when such a provision was omitted to be made and when it is not possible to enlarge the scope of the word 'received', used in Section 6 of the Court-fees Act of 1870, the application of which is saved by Section 87(2) of Act XIV of 1955, and when the levy of additional Court fee is a fiscal act, the benefit of the lack of a provision for the levy of such a fee, cannot be: claimed by the State. Obviously the benefit must go to the party in the absence of any specific provision for such a levy in consequence of the transfers of suits effected under the operation of Section 8 of the Act X of 1955.

10. In our opinion, therefore, the order of the learned City Civil Judge directing the levy of additional Court-fee on the plaints is not sustainable. The order is therefore set, aside and the trial of the suits will be proceeded with according to law. In the circumstances there will be no orders as to costs.


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