Thursday, 22 September 2016

Whether rates of court fees existing at time of filing of plaint should be paid?

Court Fees and Suits Valuation Act, 1959 (Kerala Act 10 of 1959) -- Application to file appeal in forma pauperise dismissed--in the meanwhile Act 6 of 1991 reducing court fee came into force-Court fee as per the law) in existence at the time of filing the appeal to be paid.

The Petitioner is the Appellant. The petition is to amend the memorandum of appeal with regard to the valuation and the court fee payable in the appeal. The appeal was filed as an indigent person under Order 44, Rule 1, on 24th February 1987. The application for leave to file appeal as an indigent person was dismissed on 7th July 199? on finding that the Appellant is possessed of means to pay the court fee. Time to pay court fee was granted. On 8th October 1992 the Petitioner produced a part of the court fee payable In the meanwhile with effect from 5th December 1990 the Kerala Court Fees and Suits Valuation Act has been amended by Act 6 of 1991, reducing the rates of court fee payable, and giving the Appellant the right to pay 1/3 of the court fee initially. The petition is to amend the portion in the plaint with regard to the valuation and the court fee payable in accordance with the provisions of the amended Act. According to the Appellant he is entitled to the benefit of the Amended Act Petition is opposed by the Respondent and the State. Dismissing the petition;

Held: The suit must be deemed to have been commenced when the application for permission to sue as an indigent person has been made. To say that the appeal can be deemed to have been filed only when the court fee is paid after the order has been finally made on the application for permission to sue or appeal as an indigent person would lead to serious practical difficulties. It would mean that in cases where the application for permission is rejected, almost all the appeals or suits would be barred by limitation as the process of adjudication takes its own time. Equally it may not be possible to grant interim reliefs or to apply the various other provisions of the Code as if the suit is already pending on the filing of the application for permission to sue or appeal as an indigent person.

If the Appellant pays court fee either under the old Act or under the amended Act the fiction enacted in Order 44 Rule 2 and Order 33 Rule 15A would straightaway-operate. The result would be that the court will have to treat the appeal as having been filed on 24th February 1987, the day on which the application for permission was filed along with the memorandum of appeal before this Court. It is not possible to have to dates of filing for an appeal, one for the purpose of limitation and another for the purpose of calculating the court fee. That would be an incongruous position. The normal rule has been that the appeal must be taken to have been filled when the application for permission to appeal as an indigent person has been presented and if that is to be reckoned for the purpose of applying the various provisions of the Code and also for the purpose of reckoning limitation for the appeal it is not possible to fix a different date of filing for the payment of court fee alone. It must also be noticed that in' a case where permission is granted to an 'Appellant to appeal as an indigent person, his appeal would be deemed to have been filed when he lodged the appeal along with the application for permission.

The appeal in this case must be deemed to have been filed on 24th February 1987, when it was presented along with a petition for permission to appeal as an indigent person. The present appeal should be taken to have been filed long before the coming into force, of the kerala Court Fees' and Suits Valuation (Amendment) Act, Act 6 of 1991. If that be so, the Appellant, is bound; to pay the court fee at the rates prescribed by the unamended Court Fees Act and is also not entitled to take advantage of the further proviso to Section 52 of the Court Fees Act as Amended by Act 6 of 1991.

Kerala High Court
Xavier Alias Appachan vs Fr. George on 13 November, 1992

Bench: P Balasubramanyan
 Citation : AIR 1993 Ker 127

1. This is a petition for amendment of the Memorandum of Appeal regarding the valuation in the appeal and the Court-fee payable in the appeal. The petitioner is the appellant in the appeal. The appeal was filed on 24-2-1987 accompanied by an application under Order 44, Rule 1 of the Civil P.C. for permission to appeal as an indigent person. There was also an application for condoning the delay in making that application. The delay in making the application for permission to appeal as an indigent person was condoned. Notice was ordered on the application for permission to appeal as an indigent person on 3-3-1987. The said application was objected to by the respondent, who produced a document to show that the petitioner did possess sufficient means to pay the Court-fee and is hence not an indigent person. By order dt. 7-7-1992 this Court held that the petitioner is possessed of means to pay the Court-fee. The order proceeded to record that the petitioner expressed his willingness to pay the Court-fee and requested for time to make the payment. Time to pay the Court-fee was granted for six weeks from that date. The petitioner sought for extension of time to pay the Court-fee and that application impending. The petitioner on 8-10-1992 produced a part of the Court-fee payable on the appeal. Meanwhile the Kerala Court-fees and Suits Valuation Act had been amended by Amendment Act 6 of 1991 with effect from 5-12-1990. The amendment essentially reduced the rates of Court-fee payable and also conferred the right on an appellant to initially pay only 1/3rd of the Court-fee payable. Obviously wanting to take advantage of this benefit, the petitioner has filed the present application praying that he may be permitted to amend the Memorandum of Appeal by correcting the Court-fee payable by him in the appeal as according to him the Court-fee was payable only in accordance with the Kerala Court-fees and Suits Valuation Act, 1959 as amended by the Kerala Court Fees and Suits Valuation (Amendment) Act, 6 of 1991. When this petition came up before me originally I asked counsel as to how he could claim the right to pay Court-fee only on the rates prescribed by the Amendment Act since the appeal and the application for permission to appeal as an indigent person were filed in this Court on 24-2-1987, long before the Amendment Act came into force. I have thereafter heard the parties and the learned Government Pleader on the question as to whether in such circumstances the rates applicable would be those that were in force when the application for permission to appeal as an indigent person was filed in this Court or the rates applicable on the date when this Court finally rejected the application for permission to appeal as an indigent person and granted time to the appellant to pay the Court-fee. If the conclusion of this Court were to be that it will be the new rates that will be applicable, then the amendment application deserves to be allowed. If the view of this Court were to be that the appeal must be deemed to have been filed on 24-2-1987, then the amendment sought for in this petition could not be allowed. The question therefore is whether the appeal could be deemed to have been filed after 5-12-1990 and whether the appellant could be permitted to take advantage of the benefits conferred by Amending Act 6 of 1991.
2. Sri V. Sivaswamy, the learned counsel for the petitioner refers to the scheme of Order 33 of the Civil P. C. read along with Order 44, Rule 1 of the Civil P. C. In this case, the application for permission to appeal as an indigent person made under Order 44, Rule 1 of the Civil P. C. has been rejected. Rule 2 of Order 44 of the Code provides that where an application under Rule 1 is rejected, the Court may, while rejecting the application, allow the applicant to pay the requisite Court-fee, within such time as may be fixed by the Court. This is followed by the words "and upon such payment, the memorandum of appeal in respect of which such fee is payable shall have the same force and effect as if such fee had been paid in the first instance." Order 44, Rule 1 makes it clear that the Rules of Order 33 of the Code are to be applied as far as may be in dealing with an application under Order 44 of the Code. It is pointed out by the learned counsel for the appellant that Order 44, Rule 2 is in consonance with Order 33, Rule 15A of the Code. He also refers to Order 33, Rule 15 of the Code to point out that a plaintiff whose application under Order 33, Rule 1 of the Code is rejected is at liberty to file a fresh suit paying Court-fee provided he satisfies the conditions laid down in Rule 15 of Order 33 of the Code. Order 33, Rule 15 of the Code creates a bar to an indigent person to make a second application though that person would be at liberty to institute a suit in the ordinary manner in respect of that right provided he has paid the costs of the State and of the opposite party in the proceedings under Order 33 of the Code. Rule ISAofO. 33 of the Code provides for grant of time to the applicant to pay the Court-fee and provides that on such payment the suit shall be deemed to have been instituted on the date on which the application for permission to sue as an indigent person was presented. It could thus be seen that there is a fiction incorporated both by Rule 15A of Order 33 and Rule 2 of Order 44 of the Civil P. C. to treat the suit as having been instituted on the date the application for permission to sue or appeal as an indigent person was presented in a case where the applicant was found to be not an indigent person and was ordered to pay Court-fee and who had paid the Court-fee within the time allowed by the Court.
3. It is submitted by the learned counsel that the fiction of relating back found in Rule 15A of Order 33 and Rule 2 of Order 44 of the Code applies only in a case where the Court-fee is paid by the applicant pursuant to the adjudication and not in a case where he does not pay the Court-fee. It is also pointed out by him that nothing stands in the way of the appellant in filing a fresh appeal on the rejection of his application under Order 44, Rule I of the Code provided he satisfies the requirements of Rule 15 of Order 33 of the Code. He further submits that he could have filed a fresh appeal paying Court-fee immediately after the rejection of his application on 7-7-1992 and in that case he need have only paid Court-fee at the rates prescribed by the Amending Act 6 of 1991 and taking advant-
age of the further proviso to Section 52 of the Court-fees Act. He therefore submits that there is no lack of logic in permitting the appellant to pay the Court-fee at the amended rates in this appeal, after the Court has rejected his application under Order 44, Rule 1 of the Code after the coming into force of Amending Act 6 of 1991.
4. The learened counsel for the appellant placed considerable reliance on the decision reported in Kochappu v. Somasundaran Chettiar, 1991 (1) Ker LT 657 to support his submission that relief in the matter of payment of Court-fee should be extended to cases where the appellants are directed to pay Court-fee after rejection of their applications for permission to appeal as indigent persons where the rejection takes place after Amending Act 6 of 1991 came into force. He particularly refers to the two reasons given by the Division Bench to support this proposition. The Division Bench observed at page 661:
"In the present case, the right of appeal is not imperilled. Nor is it even impaired by the imposition of a more onerous condition. It is patent that what has been conferred under the new enactment is only an additional benefit or advantage to the litigant public. In such a situation, a statute which is otherwise procedural in character does not get transmuted to a substantial law. It would then follow that the new enactment would govern all matters coming within its scope and ambit. Payment of Court-fee on an appeal would also be taken in by the new enactment so brought into force. The situation is entirely different from and even diametrically opposite to the one visible in 1969 Ker LT 229 (supra) and AIR 1960 SC 980 (supra). As against the upward revision of Court-fee in those two cases, which could rightly be termed as imperilling the right of appeal or imposing a more onerous condition on the exercise of the right of appeal, the present situation is one where the amended Act brought in some relief if not the whole of manna. Indeed, a downward revision of the Court-fee, a sweet slashing down giving relief to the honest litigant, is a hitherto unnoticed phenomenon in the history of Court-fee legislation......."
The Division Bench also observed :
"In one sense, the Government had to reach a difficult decision in relation to Court-fees. Even while tightening the belt in other areas, the State did decide to grant relief as regards Court-fee. Doubtless it did well. In such areas, it has been long ago said there are no half way houses. The Court shall not frustrate the hopes of the public by a strange interpretation, virtually denying the relief to a multitude of litigants, still coming to the corridors of Courts with a good cause appeal but with inadequate Court-fee."
According to the learned counsel if the object of the legislation was to ameliorate the condition of persons forced to pay Court-fee, there is nothing wrong in this Court making the same approach in cases where an adjudication is made after the Amending Act came into force that the appellant before it is bound to pay Court-fee and is not entitled to take advantage of Order 44 of the Code. He submits that for that purpose there is also nothing wrong in the Court deeming the appeal as having been filed only when this Court finally rejected the application for permission to appeal as an indigent person.
5. There is also an alternate submission by Sri Sivaswamy that when an appeal is not accompanied by the requisite Court-fee, there is no appeal in the eye of law and that therefore it cannot be deemed that the appeal is filed in this case on 24-2-1987 when the application for permission to appeal as an indigent person was filed. He refers to Section 4 of the Court-fees Act to contend that no memorandum of appeal which is chargeable with fee under the Act shall be acted upon or taken on file by this Court and that therefore in cases where the appeals are filed without payment of Court-fee and with applications for permission to appeal as indigent persons, the appeals cannot be taken on file on the day they are filed. In support of this proposition he also relies on the decision reported in Manna Lal v. Chhotka Bibi, AIR 1964 All 552 (FB): (1964 All LJ 537). A Full Bench of the Allahabad High Court held that an appeal which was filed but which was unaccompanied by the requisite stamps cannot be deemed to have been filed on the day it was presented and could be deemed to have been filed only when the requisite stamps were supplied. It is therefore his submission that in this case since he has failed to pay the Court-fee arid since the consequences envisaged by Rule 2 of Order 44 are attracted it must be taken that the appeal has been filed only when he pays Court-fee and that is after the coming into force of Amending Act 6 of 1991.
6. The stand adopted by the learned counsel for the appellant is strongly controverted by the learned counsel for the respondent as well as by the learned Government Pleader. According to them the appeal must be deemed to have been filed on the day it was presented in this Court along with an application for permission to appeal as an indigent person. That date being prior to the coming into force of Amending Act 6 of 1991, the Court-fee that will be payable on that appeal would be the Court-fee that was payable as on that day. It is also pointed out that it may be that the appellant could file a fresh appeal on the rejection of his application under Order 44, Rule 1 of the Code if he satisfies the requirements of Order 33, Rule 15 of the Code but that would mean that the appeal would be clearly barred by limitation and the appellant could not take advantage of the presentation of the appeal along with the application for permission to appeal as an indigent person made on 24-2-1987 to save his appeal from the bar of limitation. It is submitted that what the appellant is seeking to do is to make the best of both worlds in that for the purpose of limitation he wants to deem the appeal as having been filed on 24-2-1987 but for payment of Court-fee he wants to deem the appeal as having been filed only on 30-9-1992 when he attempted to pay Court-fee on the amended rates. It is therefore their submission that there is no warrant for holding that the appeal must be deemed to have been filed only after the coming into force of Amending Act 6 of 1991.
7. It was held by the Privy Council as early as in the decision reported in Stuart Skinner alias Nawab Mirza v. William Orde, ((1879) ILR (2) All 241) that a suit is deemed to be instituted when a petition for permission to sue in forma pauperis is filed. That the suit commences with the application for permission to sue as an indigent person has been laid down by the Supreme Court in the decision reported in Vijai Pratap v. Dukh Haran Nath, AIR 1962 SC 941 : (1962 All LJ 634). A question has also arisen before the Courts as to whether interlocutory orders could be passed in favour of a plaintiff or appellant even while he had not been permitted to sue or appeal as an indigent person and had only filed an application for permission to sue or appeal as an indigent person and has presented an appeal along with it without payment of Court-fee. Almost all the Courts have uniformly answered this question in the affirmative holding that the suit must be deemed to have been commenced when the application for permission to sue as an indigent person has been made. To say that the appeal can be deemed to have been filed only when the Court-fee is paid after the order has been finally made on the application for permission to sue or appeal as an indigent person would lead to serious practical difficulties. It would mean that in cases where the application for permission is rejected, almost all the appeals or suits would be barred by limitation as the process of adjudication takes its own time. Equally it may not be possible to grant interim reliefs or to apply the various other provisions of the Code as if the suit is already pending on the filing of the application for permission to sue or appeal as an indigent person. The practice of this Court has also been to treat the appeals filed without sufficient Court-fee as having been filed on the day they are actually put in. Even if the deficient Court-fee or the necessary Court-fee is supplied later, as far as I am aware, the practice of this Court has been to treat the appeal as having been filed on the day it was originally submitted without the requisite Court-fee. It is in this background that one will have to consider whether the appeal could be deemed to have been filed only when an order is made by the Court that the appellant is not entitled to appeal as an indigent person and directs him to pay Court-fee.
8. There is also another fallacy. If the appellant pays Court-fee either under the old Act or under the amended Act the fiction enacted in Order 44, Rule 2 and Order 33, Rule 15A would straightway operate, The result would be that the Court will have to treat the appeal as having been filed on 24-2-1987, the day on which the application for permission was filed along with the Memorandum of Appeal before this Court. It is not possible to have two dates of filing for an appeal, one for the purpose of limitation and another for the purpose of calculating the Court-fee. That would be an incongruous position. The normal rule has been that the appeal must be taken to have been filed when the application for permission to appeal as an indigent person has been presented and if that is to be reckoned for the purpose of applying the various provisions of the Code and also for the purpose of reckoning limitation for the appeal, I do not think that it is possible to fix a different date of filing for the payment of Court-fee alone.
9. It must also be noticed that in a case where permission is granted to an appellant to appeal as an indigent person, his appeal would be deemed to have been filed when he lodged the appeal along with the application for permission. This position is clear from the decision of the Supreme Court reported in Jugal Kishore v. Dhanno Devi, AIR 1973 SC 2508. Even in a case where after the filing of an application for permission for filing a suit as an indigent person along with the suit, the application for permission is withdrawn half way through and the plaintiff offers to pay Court-fee, it has been laid down by the said decision that the suit must be deemd to have been commenced on the day the application for permission to sue as an indigent person was originally made. In paragraph 13 of Jugal Kishore's case it has been observed by the Supreme Court as follows at page 2512 :
"Nevertheless, it must be noted that there is almost a consensus of opinion that where, before the formal disposal of the application to sue as a pauper, the plaintiff offers to pay the Court-fee treating the application as his plaint, or, the Court, agreeing to treat it as a plaint, enlarges the time for payment of the Court-fee the application must be regarded as a plaint instituted on the day when the application was presented. See Stuart Skinner v. William Orde, (1878-80) ILR2 All 241 (PC), Davendar Kumar Bharati v. Mahanta Raghuraj Bharati, AIR 1955 All 154 (FB): (1954 All LJ 752)."
This clearly shows that even when an application for permission to appeal as an indigent person is abandoned by an appellant, his appeal is deemed to have been filed on the day when he originally presented it along with the application for permission. It may be interesting to note that this particular case is of that nature. But whatever that be, could the position be different even if the Court goes to an adjudication on the question and finally determines that the appellant is not an indigent person and orders him to pay the Court-fee?
10. When this Court orders that the appellant is not an indigent person and is liable to pay Court-fee in the appeal as any other appellant, what this Court really holds is that as on the day the application for permission was presented the appellant ought to have paid the Court-fee. Though he had not paid the Court-fee on that day, the Court is empowered to grant time to the appellant to cure that defect or to make up that deficiency. In such cases the Code says that the making up of deficiency shall be deemed to have been done on the day the application itself was presented, I do not find any reason why this fiction should not have its full operation. The fact that Amending Act 6 of 1991 has been held to be a beneficial legislation and has been held to be applicable to cases filed after 5-12-1990 cannot, in my view, enable an appellant who had filed an appeal prior thereto to seek the benefit of the amended Act. The fact that the appellant may be able to file a fresh appeal with the requisite Court-fee and in that case he need only pay the Court-fee in terms of the amended Act cannot by itself enable an appellant to contend that the appeal originally filed by him should be deemed to have been filed only after the coming into force of Amending Act 6 of 1991.
11. Coming to the second aspect, the submission of the learned counsel that the appeal could not be deemed to have been filed at all when presented originally without paying any Court-fee, in terms of Section 4 of the Kerala Court-fees and Suits Valuation Act and could be deemed to have been filed only when the Court-fees is paid cannot also be accepted. Reliance is placed by Sri Sivaswamy on the decision reported in AIR 1964 All 552 : (1964 All LJ 537) for this proposition. The observations of M.C. Desai C. J. in that decision do support the submission of the learned counsel. Section 4 of the Kerala Court-fees and Suits Valuation Act reads :
"4. Levy of fee in Courts and public offices.-- No document which is chargeable with fee under this Act shall-
(i) be filed, exhibited or recorded in, or be acted on or furnished by, any Court including the High Court, or
(ii) be filed, exhibited or recorded in any public office or be acted on or furnished by any public officer, unless in respect of such document there be paid a fee of amount not less than that indicated as chargeable under this Act:
Provided that, whenever the filing or exhibition in a Criminal Court of a document in respect of which the proper fee has not been paid is in the opinion of the Court necessary to prevent a failure of justice, nothing contained in this section shall be deemed to prohibit such filing or exhibition."
What is suggested by the learned counsel is that since no Court fee is paid when the appeal was presented along with the application for permission to appeal as an indigent person, the appeal cannot be deemed to have been filed at all in view of the provision, especially in a case where the permission sought for is subsequently rejected.
12. Section 4 of the Kerala Court-fees Act is a general Section and applies to all Courts. Section 149 of the Code of Civil Procedure is also a general provision giving the power to the Court to extend the time. A Full Bench of 5 Judges of the Allahabad High Court reconciled Section 4 of the Court-fees Act and Section 149 of the Code of Civil Procedure by understanding S. 149 of the Code as a proviso to Section 4 of the Court-fees Act. (vide Wajid Ali v. Isar Bano, AIR 1951 All 64 (FB)).
In that case the Full Bench observed at page All 67:
"Section 149, Civil P. C., has therefore, to be read as a proviso to Section 4Court-fees Act, in order to avoid contradiction between the two sections. As a result of reading the two sections together in this light, the law may be stated thus: (1) Ordinarily a document insufficiently stamped is not to be received, filed, exhibited or recorded in a Court. (2) When, however, an insufficiently stamped document is presented to the Coiirt, the Court has to decide whether it will exercise its discretion in allowing time to the party presenting the document to make good the deficiency. (3) If it decides that time should not be granted, it will return the document as insufficiently stamped. (4) If it decides that time should be granted, it will give time to the party to make good the deficiency, and in order to enable the party to make good the deficiency within the time allowed, the Court will tentatively for that limited purpose receive the document. (5) If the deficiency is made good within the time fixed, the document is to be deemed to have been presented and received on the date on which it was originally filed. (6) If the deficiency is not so made good, the document is to be returned as insufficiently stamped by virtue of Section 4 of the Act."
S. 149 of the Code has been considered to be an exception to the rule contained in Section 4 of the Civil P. C. also by the High Court of Punjab in the decision reported in State of Punjab v. Nand Kishore, AIR 1966 Punj 332. In Manna Lal's case, AIR 1964 All 552: (1964 All LJ 537) the decision reported in AIR 1951 All 64 : (1950 All LJ 802) was considered only by one of the learned Judges (M.C. Desai C. J.) who held that Section 149 of the Code cannot limit or otherwise affect Section 4 of the Court-fees Act. Mr. Justice Dayal who wrote the main judgment did not refer to the decision reported in AIR 1951 All 64 : (1950 ALJ 802) at all. Mr. Justice Pathak merely agreed with the answer proposed. With great respect I am not in a position to agree with the view expressed by M.C. Desai C. J. I am in respectful agreement with the view expressed by the Full Bench in the decision reported in AIR 1951 All 64: (1950 ALJ 802). It must also be observed that M.C. Desai C. J. states in the decision reported in AIR 1964 All 552 : (1964 All LJ 537) that Section 4 of the Court-fees Act dealt with by him applied only to High Courts and was a special provision and hence its effect could not be whittled down by reference to Section 149 of the Code, a general provision. As far as the Kerala Court-fees Act is concerned. Section 4is a general provision applicable to all Courts. Moreover with respect, I do not find any inconsistency in Section 4 of the Court-fees Act and the power conferred by Section 149 of the Code on the Court. The power of the Court saved by Section 149 of the Code enables the Court to reduce the rigour of Section 4 of the Court-fees Act. In fact the said decision reported in AIR 1964 All 552 : (1964 All LJ 537) need not detain me since the same has been reversed by the Supreme Court in appeal in the decision reported in Manna Lal v. Mst. Chhotka Bibi, AIR 1971 SC 1374 : (1971 All LJ 569). The Head Notes of the said decision reads:
"S. 149 of Civil P. C. mitigates the rigour of Section 4 of the Court-fees Act and it is for the Court to harmonise the provisions of both the Court-fees Act and Civil P. C. by reading Section 149 of Civil P. C. as proviso to Section 4 of Court-fees Act and allowing the deficit to be made good within a period of time fixed by it. If the deficit is made good no possible objection can be raised on the ground of bar of limitation, as Section 149 expressly provides that the document is to have validity with retrospective effect."
13. As can be seen from the proposition enunciated above, once time is granted and the deficiency is made good, then the appeal is deemed to have been presented and received on the date on which it was originally filed. I am therefore not in a position to accept the argument of Sri Sivaswamy, that there was no filing of the appeal at all when the appellant presented it along with a petition for per-
mission to appeal as an indigent person since the appeal was not accompanied by the requisite stamp and the appellant was subsequently denied the privilege of appealing as an indigent person. I therefore hold that the appeal in this case must be deemed to have been filed on 24-2-1987, when it was presented along with a petition for permission to appeal as an indigent person.

14. In the view I have taken, the present appeal should be taken to have been filed long before the coming into force of the Kerala Court-fees and Suits Valuation (Amendment) Act, 6 of 1991. If that be so, the appellant is bound to pay the Court-fee at the rates prescribed by the unamendedCourt-fees Act and is also not entitled to take advantage of the further proviso to Section 52 of the Court-fees Act as amended by Act 6 of 1991. In this view, the application for amendment of the Memorandum of Appeal has only to be dismissed. I dismiss the same, without any order as to costs.
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