Rajasthan High Court - Jaipur
Pukhraj And Anr. vs Kunji And Ors. on 29 May, 1997
Equivalent citations: 1997(3)WLC267, 1997(1)WLN537
JUDGMENT G.L. Gupta, J.
1. In this appeal preferred by the plaintiffs against the judgment & decree dt. 14.12.95 a preliminary objection was raised by the learned Counsel for the respondents that the appellants have not filed sufficient court fees. Because the question of sufficiency or otherwise of the court fees arose notice of the appeal was also given to the Govt. Advocate.
2. It was pointed out by Mr. Maloo that the plaintiffs have challenged the decree dated 14.12.1995 passed in civil suit No. 206 S of 1995 which was valued at Rs. 1,51,20,000/- but they have paid court fees of Rs. 43565 only. According to him the appeal should have been valued at Rs. 1 crore 51 lacs 20 thousand as was done in the suit and the same amount of court fees is liable to be paid in this appeal which was paid in the trial court. He invited my attention to the provisions of Section 15 and 40 of the Rajasthan Court Fees and Suits Valuation Act, 1961.
3. Learned Dy. G.A. has also submitted that insufficient court fees has been paid in this appeal.
4. On the other hand the contention of Mr. Chopra was that in this appeal the plaintiffs have challenged the decree mainly on the ground that the trial court has forgot to adjust a sum of Rs. 10 lac 70 thousand and the other matters are ancillary and, therefore, the valuation of appeal of Rs. 8 lacs 70 thousand is proper and adequate court fees has been paid. According to him, the plaintiffs had succeeded in the suit but only a rider was added in the decree that on failure to deposit of amount by the plaintiffs the suit shall stand dismissed and as the plaintiffs had already filed revision petition against the order denying the plaintiffs the extension of time they were not required to pay court fees on the entire amount. He tried to bring the case under Section 40(e) of the Raj. Court Fees & Suits Valuation Act, 1961 (hereinafter referred to as the Act of 1961) read with Section 45 of that Act and submitted that at the most Rs. 300 can be demanded from him which he is prepared to pay.
5. A reading of the memorandum of appeal reveals that the decree of the trial court has been assailed on many grounds including the one that the trial court has erred in giving the plaintiffs only seven days time to deposit the amount. It has been averred that the trial court has committed error in ordering that the cost of the suit shall be borne by the respective parties. In the memorandum of appeal the grounds have been mentioned from (A) to (H). In ground (A) it has been stated that the trial court has not gone into the serious questions which were raised by the plaintiffs in the plaint that the land was situate near the military area and the trucks and tanks of the military authorities were standing on the disputed land and that even the defendants had filed writ petition in this Court bearing No. 1550/95 against the Union of India praying that the Army be restrained from interfering in their Khatedari rights which was dismissed by the High Court. In Ground No. (B) it has been averred that the trial court erred in not calling upon the defendants to file their written statements which was necessary in view of the fact that the plaintiffs had raised the question that the defendants were required to obtain income tax clearance certificate from the income tax authorities. In Ground (C) it has been stated that there was serious dispute of the identity of the land and, therefore, the plaintiffs could not be expected to purchase the land. In ground No. (D) it has been averred that Rs. 8 lacs 70 thousand paid by the plaintiffs to the defendants were not adjusted in the amount of decree. In grounds No. (E) it has been said that some of the defendants did not. give their consent to execute the sale deed and the trial court was wrong in passing a partial decree in a suit for specific performance. In ground No. (F) it has been stated that the trial court has erred in observing that the objections raised by the plaintiffs regarding the identity of the land were without basis. In Ground No. (G) the mandatory nature of direction for the deposit of the amount within seven days has been assailed. In Ground No. (H) the direction regarding the cost to be borne by the parties has been challenged. It has been prayed that the appeal be allowed and the decree passed by the learned Additional Dist. Judge be modified in terms of the prayer made in the memo of appeal and the suit of the plaintiffs be decreed.
6. A reading of memo of appeal makes it evident that the appeal has not been filed only seeking the adjustment of Rs. 8 lacs 70 thousand paid in advance. The decree has been challenged on various grounds including the one that the condition, of deposit of entire amount within seven days making it mandatory, was onerous. When all the grounds have been taken to assail the judgment and decree, it cannot be accepted that the appeal has been filed for the limited purpose of seeking adjustment of Rs. 8 lacs 70 thousand for which the plaintiff-appellants have paid the court-fees.
7. Sub-paras (B) and (E) of para 6 of the judgment and Clause (B) to (E) of the decree are very much relevant for deciding the matter of payment of court fees. Under Clause (B) the plaintiffs were directed to deposit the amount calculated at the rate of Rs. 1,35,000 in their own bank account within a period of seven days and under Clause (E) it was specifically stated that the time limit of seven days will not be extended and if the plaintiffs failed to comply with the direction of deposit of the amount the suit shall stand dismissed. It is not disputed that the plaintiffs did not deposit the amount within seven days of the date of judgment. The plaintiffs also did not take steps to make an application before the court immediately after the judgment was pronounced for extending the time limit of seven days. The application filed on 18.12.1995 was also dismissed by the court vide order dated 20.12.1995. Even then the plaintiffs did not deposit the amount. It is not of significance that the plaintiffs filed revision petition challenging the order dated 20.12.1995. This was also done after the expiry of the period of seven days fixed in the decree. This court had not granted stay of operation of the conditions of the decree. The obvious effect of non-deposit of the amount by the plaintiffs within seven days decree was that the suit stood dismissed automatically. When the suit stood dismissed and the plaintiffs filed this appeal against the judgment and decree they were certainly required to pay court fee in terms of Section 15 of the Court Fees Act which reads as follows:
15 Fee payable on appeals etc.-The provisions 10 to 13 relating to determination and levy of fee on plaints in suits shall apply mutatis mutandis to the determination and levy of in respect of a memorandum of appeal, cross-objection or other proceedings in second appeal or in an appeal from the judgment of a single Judge of the High Court of Rajasthan under any law for the time being in force.
8. Thus, the plaintiff-appellants were liable to pay the same amount of court fees which they were required to pay to file the suit for specific performance.
9. There is no substance in the contention of Mr. Chopra that this case falls within Clause (e) of Section 40 of the Act of 1961. Clause (e) is residuary clause and it shall apply when the case does not fall in clauses (a) to (d) of Section 40. It is relevant to read Section 40 which is reproduced hereunder:
40 Suit for specific performance. In a suit for specific performance, whether with or without possession, fee shall be payable (a) in the case of contract of sale, computed on the amount of the consideration; (b) in the case of a contract of mortgage, computed on the amount agreed to be secured by the mortgagee, (c) in the case of a contract of lease, computed on the aggregate amount of the fine or premium, if any, and of the average of the annual rent agreed to be paid; (d) in the case of a contract of exchange computed on the amount of the consideration; or as the case may be, on the market value of the property sought to be taken in exchange; (e) in other cases, where the consideration for the promise sought to be enforced has a market value, computed on such market value, or where such consideration has no market value, at the rate specified in Section 45.
In my opinion this case clearly falls under Clause (a). The suit was filed for specific performance of the contract. Therefore, it clearly fell in Clause (a) and the Court fee shall payable on the amount of consideration. The plaintiffs did pay the court fees as per this provision.
10. It is not a case where the consideration has no market value and, therefore, Clause (e) of Section 40 did not apply: There is no thus question of computation of court fees under Section 45 of the Act. The cases relied on by Mr. Chopra do not help him in advancing the cause of the appellants.
11. In the case of Smt. Sardar Devi v. Hihalkaran the point at issue has what court fees was required to be paid when the plaintiffs only challenged the money decree in which payment was ordered by instalments. This Court held that this relief was not capable of being Valued in money and, therefore, the memorandum of appeal must be treated as under Article 17(vi) of Schedule II Court Fees Act, 1870. Obviously the point at issue was very different in that case and on the analogy of that case it cannot be held that Clause (e) of Section 40 of the Act of 1961 will be applicable.
12. So also in the case of Stale of Maharashtra v. Mishrilal Tarachand the question before their lordships of the Supreme Court was whether amount of interest decreed for period subsequent to institution of suit, the defendant was required to pay the court fees. The Supreme Court held that the. defendant was not required to pay court fees in such a case. It is obvious that the point which has arisen in the instant case was not under consideration before their lordships.
13. In the cases of Chief Controlling Revenue Authority v. Fertilizer Corporation of India Ltd. and Jafferali Alibhai v. S.R. Dossa it has been held that there should be a liberal interpretation of the fiscal statute like the Court Fees Act so as to lessen the burden of litigation. There cannot be any quarrel with this legal proposition but where the provisions for the levy of court fee are clear and there is no ambiguity, there does not arise the question of taking liberal view.
14. In the instant case, conditional decree was passed with a definite indication that in no case the time limit shall be extended and suit shall stand automatically dismissed. It is relevant to refer here Order 20 Rule 12A C.P.C. wherein it is the duty of the court to specify the period within which the payment was to be made. Rule 12A was added by C.P.C. Amendment Act, 1976 which is to the following effect:
12A Decree for specific performance of contract for the sale or lease of immovable property-Where a decree for the specific performance of a contract for the sale or lease of immovable property orders that the purchase-money or other sum be paid by the purchaser or lessee, it shall specify the period within which the payment shall be made.
15. It is, therefore, mandatory for the court to specify the period for making the payment. The court is not empowered to extend the period once granted because of the bar of Rule 3 of Order 20 C.P.C. which is reproduced hereunder.
3 Judgment to be signed-The judgment shall be dated signed by the Judge in open Court at the time of pronouncing it and, when once signed, shall not afterwards be altered or added to, save as provided by Section 152 or on review.
That being so the suit stood automatically dismissed on the non-compliance of the orders of the Court after seven days. In such circumstances' this appeal is virtually against the dismissal of the suit. Therefore, the plaintiffs were required to pay full court fees as per the provisions of Section 15 read with Section 40(a) of the Act of 1961.
16. Consequently, it is held that court fees in terms of Section 15 read with Section 40(a) of the Court Fees Act is required to be paid by the plaintiff-appellants in this appeal. Since the effect of the decree is the dismissal of the suit for part of the land only the plaintiff-appellants are liable to pay court fee only on the valuation of that part of land. Plaintiff-appellants are granted five weeks time to make up the deficiency failing which the appeal shall stand rejected under Order 7 Rule 11 C.P.C.