Kerala High Court
P.C.Thulaseedharan vs Renie Fernandez on 10 June, 2022
Author: Anil K.Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
Friday, the 10th day of June 2022 / 20th Jyaishta, 1944
RFA NO. 84 OF 2022(FILING NO.)
APPELLANT/PLAINTIFF:
P.C.THULASEEDHARAN, AGED 75 YEARS, S/O. C.P. KOCHUVELU, PUTHEN
VEEDU, KADAKKAVOOR P.O., KADAKKAVOOR VILLAGE, CHIRAYINKEEZHU TALUK,
THIRUVANANTHAPURAM DISTRICT, PIN-695306.
BY ADV J.JAYAKUMAR
RESPONDENTS/DEFENDANTS:
1. MRS. RENIE FERNANDEZ, AGED 72 YEARS, W/O. CANDID T. FERNANDEZ, A-1,
NEW NO.24, 3RD CROSS, DZIRE, KACHARAKARAHALLI, HRBR LAYOUT,
BANGALORE, KARNATAKA STATE, PIN-560084.
2. DENZIL D SOUZA, AGED 74 YEARS, S/O. CEEIL D SOUZA, MILLIE LODGE,
HOUSE NO.64, BISHOP PALACE NAGAR, THANGASSERI P.O., KOLLAM,
PIN-691006.
This Regular first appeal having come up for orders on 10.06.2022,
the court on the same day passed the following:
ORDER
'CR' ANIL K. NARENDRAN & P.G. AJITHKUMAR, JJ.
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Dated this the 10th day of June, 2022 ORDER Ajithkumar, J.
The Registry raised an objection that the valuation of the appeal for the purpose of court fees and the court fees levied and paid as provided under Article 3(iii)(A)(1) of Schedule II to the Kerala Court Fees and Suit Valuation Act, 1959 is wrong. The Registry took the stand that the suit having been dismissed on answering one of the issues framed by the court, the appeal should be valued and court fees paid as provided under Section 52 of the Act. That is to say on ad valorem.
2. The submission of the learned counsel appearing for the appellant is that the remedy of the appellant in the matter is as provided under Section 96 of the Code of Civil Procedure, 1908. However, in the absence of any adjudication of the dispute involved in the suit, whereas it was dismissed on answering a preliminary issue regarding maintainability 2 Unnumbered R.F.A of 2022 (F.No.84 of 2022) alone, payment of court fees ad valorem is not required. In that regard, the learned counsel placed reliance on Beena K.G. v. Keshavam [2016 (3) KLT 117].
3. Heard the learned counsel appearing for the appellant.
4. This appeal is filed against the judgment dated 30.07.2021 in O.S.No.2014 of the Principal Sub Court, Kollam. The suit was filed for specific performance or in the alternative for a refund of advance sale consideration. Defendants-respondents filed a written statement refuting the plaint claim. As many as six issues were raised based on the rival pleadings. It is seen that on the request of the respondents-defendants, an additional issue regarding the maintainability of the suit was framed and the same was heard as a preliminary issue. The Sub Court answered the issue against the appellant whereupon the suit was dismissed as not maintainable. It is that judgment that is under challenge in this appeal.
5. Order XIV, Rule 2 of the Code enables a court to try an issue only, if the court is of opinion that the case or any part thereof may be disposed of by answering that issue. In order to try one of the issues as a preliminary question, that issue should 3 Unnumbered R.F.A of 2022 (F.No.84 of 2022) be one relating to the jurisdiction of the Court or a bar to the suit created by any law for the time being in force. The Sub Court framed additional issue No.7 that, was not the suit maintainable? That the Court had considered that issue as a preliminary one cannot be found fault with. Whether or not the view taken by the Sub Court while answering the issue is question does not fall for consideration at present.
6. In Beena K.G, a Division Bench of this Court considered the question, whether ad valorem court fees is required to be paid when an appeal is filed challenging the order of the court below rejecting a plaint in a suit for specific performance for want of payment of balance court fees or whether fixed court fees as per Article 3(iii)(A)(1) of Schedule II to the Court Fees Act is enough. In view of the provisions of Section 2(2) of the Code, an order rejecting a plaint is deemed to be a decree. In view of that matter, a doubt was entertained; while filing an appeal challenging such a deemed decree, should ad valorem court fees be paid in the appeal?
7. In Beena K.G, the court held that the subject matter of the appeal was not about granting or not of a decree for specific 4 Unnumbered R.F.A of 2022 (F.No.84 of 2022) performance of the contract. The subject matter of the appeal on the other hand was about the propriety of the trial court in rejecting the plaint for the non-payment of the balance court-fee within the time permitted. There is a deemed decree in terms of Section 2(2) of the Code on account of the rejection of the plaint without there having any adjudication on merits. The same does not however preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action as evident by Order VII Rule 13 of the Code. The further fact that the court fees already paid on the plaint which has been rejected is liable to be refunded in terms of Section 66 of the Court Fees Act was also considered as a reinforcing aspect for the conclusion. The appeal is confined to the rejection of the plaint for non-payment of balance court fees only and the deemed decree is not assailed on any other ground. Resultantly the Court held that the appellant was only obliged to pay court fees as per Schedule II, Art.3(iii)(A)(1) of the Act
8. The learned counsel also brought to our notice the observations of this Court with respect to the said question in Maya Rani @ Maya and another v. Parambathupadi Aboobacker Siddique @ Aboobacker Siddique [2022 (1) KLJ 5 Unnumbered R.F.A of 2022 (F.No.84 of 2022) 94]. Similar to Beena K.G is the question involved in Maya Rani also. It was held, "The issue raised in this appeal is covered in favour of the appellants-plaintiffs by the decisions of the Division Bench of this Court in Thanappan [2003 (2) KLT 39], Narikuniyil Narayanan [2009 (3) KLT 543], Beena K.G. [2016 (3) KLT 117] and Thomas [2019 (3) KLT 140]. When the plaint was rejected under Order VII, Rule 11 of the Code of Civil Procedure, since the plaintiffs could not raise sufficient funds to pay the balance court fee, there is no adjudication as to the subject matter of the suit. In this appeal filed under Order XLI, Rule 1 of the Code the only question that arises for consideration is as to whether the plaintiffs could be granted time to pay the balance ad valorem court fee in the suit. Once time is granted, the plaintiffs will have to pay the balance ad valorem court fee in the suit. Two courses are open to the plaintiff when the plaint is rejected for non- payment of the balance court fee. The plaintiff can either file a Regular First Appeal or apply for review. In an application for review, the plaintiff has necessarily to pay one-half of the court fee payable, under Schedule I Article 5 of the Kerala Court Fees and Suit Valuation Act. On the other hand, in appeal filed under Order XLI, Rule 1 of the Code, against rejection of plaint for non-payment of the balance ad valorem court fee, the plaintiff is required to pay only the fixed court fee of Rs.25/- under Schedule II, Article 3(iii)(A) (1)(a) of the Kerala Court Fees and Suit Valuation Act. In such an appeal, the subject matter is not about granting a 6 Unnumbered R.F.A of 2022 (F.No.84 of 2022) decree as sought for in the suit. In the absence of a conclusive determination of the rights of the parties in the suit, the subject matter of that appeal is confined to the propriety of judgment of the trial court in rejecting the plaint for non-payment of the balance ad valorem court fee, within the time permitted. There is only a deemed decree in terms of Section 2(2) of the Code of Civil Procedure, on account of the rejection of the plaint for non-payment of the balance court fee, without any adjudication on merits. The same does not however preclude the plaintiffs from presenting a fresh plaint in respect of the same cause of action, since Order VII, Rule 13 of the Code provides that the rejection of the plaint on any of the grounds mentioned in Rule 11 shall not of its own force preclude the plaintiffs from presenting a fresh plaint in respect of the same cause of action."
9. When a plaint is rejected invoking one of the provisions of Order VII Rule 11 of the Code, the Court passes an order. A reading of Section 2(2) of the Code infers that such an order is deemed to be a decree though there is no decree in the strict sense. "Judgment" is defined in Section 2(9) of the Code as the statement given by the Judge on the grounds of a decree or order. Section 33 of the Code mandates that every judgment shall be followed by a decree. The order is defined in Section 2(14) of the Code as the formal expression of any decision of a Civil Court 7 Unnumbered R.F.A of 2022 (F.No.84 of 2022) which is not a decree. A conjoining reading of these provisions would show that an order rejecting a plaint need not be followed by a decree, nevertheless it is deemed to be a decree.
10. Sub-rule(1) of Rule 2 of Order XIV of the Code insists that every court shall pronounce judgment on all issues. The only exception is, that is provided in sub-rule(2). Order XX, Rule 5 of the Code also envisages a similar regulation. It says that in suits in which issues have been framed, the court shall state its finding or decision, with the reasons therefor, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit. If adjudication of an issue only may result in the disposal of the suit, the court can pronounce a judgment on that issue only. Of course, such preliminary issue must be relating to the jurisdiction of the court or a bar to the suit created by any law. Even if one issue alone is decided, as a preliminary issue, the court is required to pronounce a judgment in the suit, if the decision results in disposal of the suit. Its corollary is that if, on answering such preliminary issue, the court finds that the court has to proceed to try the remaining issues, it is an order. In the former case a decree has to be drawn up by 8 Unnumbered R.F.A of 2022 (F.No.84 of 2022) virtue of the provisions of Section 33 of the Code whereas, in the latter no decree is required. When such a judgment and a decree are resulted by answering a preliminary issue, that cannot be equated to an order rejecting the plaint for want of payment of balance court fees in time or, as a matter of fact, for any other reason made mention of in Order VII Rule 11 of the Code.
11. In Beena K.G and Maya Rani, this Court emphasised that in the absence of a decree, but there being only a deemed decree and no dispute involved in the suit has been adjudicated by the order of rejection, the appeal thereon cannot be treated as an appeal against decree obligating the appellant to pay ad valorem court fees. It was held that the question to be decided in such an appeal was only the propriety of the order of the trial court rejecting the plaint for want of payment of the balance court fees within the permitted time. Whereas, in an appeal of a kind in hand, the trial court has adjudicated one of the issues and decision thereon has determined the rights of the parties conclusively. It is therefore a judgment followed by a duly drawn up decree. When such a judgment is challenged in appeal invoking the provision of Section 96 read with Order XLI Rule 1 of the 9 Unnumbered R.F.A of 2022 (F.No.84 of 2022) Code, the appellant is obliged to pay court fees as provided in section 52 of the Kerala Court Fees and Suit valuation Act. In case the appeal is allowed, the inevitable consequence shall be to remand the case for trial on the remaining issues. In such an eventuality, the court fees paid in the appeal may have to be refunded to the appellant in the light of the provisions of Section 67 of the Kerala Court Fees and Suit Valuation Act. That does not mean that the appellant can be absolved from paying the requisite court fees for entertaining the appeal which is due to be paid as per law. Since the present appeal is against a judgement which necessarily to have followed a decree, the appellant is obliged to pay court fees ad valorem.
In the circumstances, the objection raised by the Registry is sustained. The appellant will carry out necessary corrections in the appeal memorandum and pay the requisite court fees, for which the appeal memorandum shall be returned.
Sd/-
ANIL K. NARENDRAN, JUDGE Sd/-
P.G. AJITHKUMAR, JUDGE PV 10-06-2022 /True Copy/ Assistant Registrar