Kerala High Court
Gopalan Nair vs Bhaskaran on 28 November, 2001
Author: P.K. Balasubramanyan
Bench: P.K. Balasubramanyan, K.A. Abdul Gafoor
ORDER P.K. Balasubramanyan, J.
1. This is an application by the appellant in the appeal invoking Section 151 read with Sections. 148 and 149 of the Code of Civil Procedure. The prayer in this petition is for restoration of the appeal dismissed for default for non-payment of the balance court free payable under the second proviso to Section 52 of the Kerala Court Fees and Suits Valuation Act and to allow the petitioner to remit the balance court fee by enlarging the time therefor. This application is opposed by the respondent on the ground that it is not maintainable and on the further ground that no ground is made out on merits for allowing the prayer.
2. This court admitted this appeal on 7.12.1999 after preliminary hearing in terms of Order XLI Rule 11 of the Code of Civil Procedure. Under Section 52 of the Kerala Court Fees and Suits Valuation Act, hereinafter referred to as the Court Fees Act, the full court fee payable on appeal need not be paid while instituting the appeal or presenting the appeal. Only one third of the fee payable need be paid. It may be better to quote the relevant proviso to Section 52 of the Court Fees Act:
"Provided further that one third of the fee payable in an appeal shall be paid at the stage of admission of First Appeal or Second Appeal as the case may be and the balance shall b e paid within such period not later than fifteen days from the date of such admission as may be specified by the court; in case the appeal is admitted:
Provided also that the court may for sufficient reasons to be recorded in writing extend the period upto thirty days."
The appellant had paid only one third of the court fee due on the Memorandum of Appeal. The appeal having been admitted on 7.12.1999, the appellant had the obligation to pay the balance two thirds of the court fee within fifteen days from 7.12.1999. The appellant did not pay the balance court fee within time. The appeal was sent up for orders on 2.2.2000 in view of this. The Court adjourned the proceeding to 15.2.2000 so as to enable the appellant to pay the balance court fee. From 15.2.2000, the appeal was again adjourned to 28.2.2000 by way of further indulgence. It may be noted that by 7.1.2000 even the period of thirty days to which the power of the court to extend the time was limited by the provision to Section 52 of the Court Fees Act had also expired. Notwithstanding this, the adjournments were given in the light of the view expressed by this Court that in exercise of jurisdiction under Section 149 of the Code of Civil Procedure, the court can extend the time (See Elizebath v. Francis, 1991 (20 KLT 779). On 28.2.2000, since the balance two thirds court fee had not been paid, the appeal was rejected by this Court. The judgment of this Court reads:-
"Even though this appeal was admitted on 7.12.1999, the appellant has not paid the balance two third court fee due from him in terms, of Section 52 of the kerala Court fees and Suits Valuation Act. Under such circumstances, we are constrained to reject this appeal for non-payment of court fee.
The appeal is rejected."
The present petition was filed by the appellant on 7.3.2000 with a prayer already referred to. Learned counsel for the respondent submitted that an application under Section 151 of the Code of Civil Procedure read with Sections 148 and 149 of the Code is not maintainable and is not sufficient to enable the appellant to have the judgment already rendered, set aside. According to counsel, the appellant is bound either to appeal against the said judgment or to seek a review of that judgment dated 28.2.2000 since the rejection of a Memorandum of Appeal for non-payment of court fee is a decree and the decree cannot be got rid of by a mere subsequent extension of time for payment of court fee. The petition for extension, according to counsel, was not maintainable. This met by counsel for the appellant by submitting that the dismissal of an appeal for rejection of an appeal for non-payment of the balance court fee due under the proviso to Section 52 of the Court Fees Act, amounts to a dismissal of default going by the definition of decree contained in Section 2(2) of the Code and hence the proper remedy open to the appellant is to seek the setting aside of the dismissal for default and the restoration of the appeal to file, along with a prayer for extension of time to pay the balance two thirds court fee due on the Memorandum of Appeal.
3. In In re N. Kayambu Pillai ((28) AIR 1941 Madras 836), a Full Bench of the Madras High Court held that an order dismissing an appeal for non-payment of Court Fee is not a decree under Section 2(2) of the Code of Civil Procedure and the same is a dismissal for default within the meaning of Section 2(2) of the Code. It was held by Chief Justice Leach, speaking on behalf of the Full Bench, stated:-
"An examination of the language used in defining the word 'decree' in Section 2(2), Civil P.C., convinces me that the order which Venkatashubba Rao and Abdur Rahman, JJ. passed on 4th March, 1938 directing that the appeal should be dismissed for non-payment of court fee and for failure to furnish security, is not a decree. After saying that the word 'decree' means the formal expression of an adjudication which, so far as the Court expressing it, conclusively determines the rights of parties with regard to the matters in dispute in the suit, the section goes on to say what the expression shall be deemed to include and what it shall not include. It does not include two kinds of orders namely, (1) an adjudication from which an appeal lies as an appeal from an order and (2) an order of dismissal for default. What was the order of 4th March, 1938 but an order dismissing the appeal for default? The appeal had bene admitted in forma pauperis but on it becoming apparent that the appellant was not a pauper the Court in effect said "you shall not proceed unless your pay the proper court-fee as you are no longer a pauper." The appellant failed to pay and therefore entitled the Court to dismiss the appeal for default in payment."
Venakataramana Rao, J., who agree with the learned Chief Justice, stated thus:-
"The next question is whether the order, in so far as it purports to be an order of dismissal for non-compliance n regard to payment of the court-fee, is a decree. I agree with my Lord and it is an order of dismissal for default with the meaning of Section 2(2), Civil P.C. and therefore is not a decree. The order, though it purports to be one for non-compliance with an order for payment of the court fee, is strictly an order for non-compliance of an order passed in consequence of an order of dispaupering made under Order 33, Rule 9. The word 'default' in Section 2(2), Civil P.C., in my opinion need not be confined only to default of appearance, but may include other defaults as well, and certainly this default."
Of course, there was one distinction in that case and that was that the appellant had been originally permitted to appeal as an indigent person and had subsequently been dispaupered and directed to pay the court fee and he had failed to so. But, the observations of Justice Venkataramana Rao are to the effect that that fact by itself does not make any difference. A Full Bench of the High Court of Andhra Pradesh in In Re Chundury Venkata Subramanyam (AIR 1955) Andhra 74) dealing with a situation where an appellant was dispaupered, ordered to pay the court fee and had defaulted to pay the court fee that the dismissal of the appeal could be treated as a dismissal for default with the meaning of Section 2(2) of the Code of Civil Procedure. Their Lordships followed the decision of the Full Bench of the Madras High Court in In re N. Kayambu Pillai ((28) AIR Mad. 836) and that of the Allahabad High Court in Tafazzul v. Shah Mohammad (AIR 1949 Allahabad 261) to take the view that the term 'default' in Section 2(2)(b) of the Code is not limited to one appearance only and it included default of prosecution also. Their Lordships noticed yet another decision of the Full Bench of the Madras High Court in Satyanarayanacharyulu v. Ramalingam (AIR 1952 Mad. 86). In that decision, the learned Judges had held that an order directing the payment of additional court fee on a plaint was not open to revision once order had bene followed up by a further order rejecting the plaint on the ground that the additional court fee demanded has not been paid and that the proper remedy of the aggrieved plaintiff was to appeal from the order of rejection of the plaint. This, of course, is consistent with the view taken by the Full Bench of this Court in Haji Hassan Rowther v. Bulghese Beevi (1971 KLT 613.) The Full Bench of the Andhra Pradesh High Court stated that the order passed rejecting the plaint in the case of Satyanarayanacharyulu was one made under Order VII Rule 12 of the Code of Civil Procedure and, therefore, it was clearly "decree" within the meaning of the Code of Civil Procedure. The Full Bench of the Andhra pradesh High Court proceeded to say that thee was really no conflict between the two Full Bench decisions of the Madras High Court in view of this difference in situation. While reconciling the two Full Bench decisions of the Madras High Court, the Full Bench of the Andhra Pradesh High Court speaking through Subba Rao, C.J. (as he then was) stated that the order in the decision in In re N. Kayambu Pillai ((28) AIR Mad. 836) was a case of rejecting an appeal and it was not a case of rejecting a plaint and hence the order involved in that case was not a decree as defined. But the order in Satyanarayanacharyulu (AIR 1952) Mad. 86), the order was an order rejecting a plaint and, therefore, directly fell within the definition of "decree' in Section 2(2) of the Code. Thereafter the Full Bench discussed the definition of "decree" obtaining in the Code agreeing with the view of the Madras High Court in In re N. Kayambu Pillai ((28) AIR 1941 Mad. 836) and that of the Allahabad High Court in Tafazzul v. Shah Mohammad (AIR 1949 Allahabad 261). Ultimately, the Andhra Pradesh High Court held that the dismissal of a plaint for non-payment of court fee was not a decree. It may not be noted that that was also a case coming under Order XXXIII Rule 11 of the Code of Civil Procedure.
4. The question came up fro consideration before a Full Bench of the Panta High Court in Radhanath v. Bachal Lal (AIR 1955 Patna 370). That Full Bench held that the dismissal of an appeal for default for non-payment of the requisite court fee on the memorandum of appeal could not be restored by way of an application under Section 151 of the Code of Civil Procedure and the appropriate remedy was by way of an application for review under Order XLVII Rule 1 of the Code on payment of proper court fee on such application. Das, C.J., in his judgment while agreeing with Ramaswami, J., stated that:-
"It is now settled by a number of decisions of this Court that Rule 11, of Order 7 applies to memoranda of appeals by reason of the effect of Section 107(2), Civil P.C.".
With respect, it appears to us that the position adopted by the learned Chief Justice is the correct one when we clearly understand the scope of Order VII Rule 11 of the Code of Civil Procedure and Section 107 of the code and the conferment of powers of the trial court in the appellate court by that provision.
5. In Muhammedhkutty v. Kunjamma (1985 KLT 1056), Sreedharn, J. (as he then was), held that the dismissal of a memorandum of appeal on account of non-payment of deficit court fee amounts to a decree under Section 2(2) of the Code. To set aside that decree, the appellant has to file an appeal therefrom or seek a review under Order. XLVII of the Code. The learned Judge further held that an application under Section 151 of the Code for permission to pay court fee as to restore the appeal as it were, is not maintainable. His Lordship placed reliance on the decision of the Patna High Court in Radhanath v. Bacha Lal (AIR 1955 Patna 370-FB) referred to above.
6. In Gopalakrishna Pillai v. Narayanan (AIR 1959) Kerala 406), a learned Judge of this Court after referring to the decision of the courts and also to the decision of the Travancore High Court in Joseph v. Kurian ((1936) 26 TLJ 932) held that even though the order rejecting the plaint would amount to a decree, an order rejecting the plaint for non-payment of the deficit court fee would amount to a decree and in some cases, a review would not be possible since the conditions of Order XLVII Rule 1 of the Code would not be satisfied and in such cases, it cannot be that the Code had rendered no remedy to the aggrieved party and hence in furtherance of justice, the court can entertain and application invoking its jurisdiction under Section 151 the Code of Civil Procedure to permit the plaintiff to pay the deficit court fee and to get the suit restored. Another learned Judge in Ummen v. abraham (1959) KLJ 1466) held that Order IX Rule 9 can have no application to a case of rejection of plaint under Order VII Rule 11(c) of the Code for non-payment of court fee. The learned Judge further held relying on the Full Bench decision of the Patna High Court in Radhanath v. Bacha lal (AIR 1955 Patna 370) that Sections 148, 149 and 151 of the Code have no application, first two, because there was no proceeding pending and he third, because apart from the prohibition in Order XX Rule 3, the Code provides for a remedy in such cases by way of appeal (since there rejection of the plaint is a decree as defined in Section 2(2) of the Code) as also by way of review. The application brought by the plaintiff could not be treated as an application for review since the requisite court fee was not paid on it. A Full Bench of this Court in Haji Hassan Rowther v. Bulghese Beevi (1971 KLT 616) held that in cases where a plaint is rejected under Order VII Rule 11 for default to pay additional court fee even before a revision against the order directing the payment of court fee is entertained by the High Court, the revision was not maintainable and the proper remedy of the plaintiff in such a case was to file an appeal against the order rejecting the plaint since the rejection amounted to a decree as defined in Section 2(2) of the Code of Civil Procedure. A Division Bench in Mathunni Panicker v. Mariyamma kunjamma (1977 KLT 927) held that Order. IX Rule 9 of the Code could obviously have no application to a case where the plaint has been rejected for non-payment of court fee under Order VII Rule 11(c) of the Code. It must therefore be held that the Munsiff's Court acted illegally and without jurisdiction in allowing an application by the plaintiff for restoration of the suit to file by invoking Order IX Rule 9 of the Code. The proper remedy available to the plaintiff was either to file an appeal against the order rejecting the plaint or to seek a review of the order by making a proper approach before the trial court. Their Lordships approved the decision in Ummen v. Abraham (1959 KLJ 1466). In Janaki Amma v. Krishnan (1978 KLT 463) a learned Judge held that the dismissal of the suit for non-payment of the court fee could only be a rejection of the plaint and that the court has inherent power to extend the time fixed for payment of the deficit court fee even after conditional order in that behalf has worked itself out be expiry of time. His Lordship observed, but did not decide finally, that he power under Section 148 of the Code fr enlargement of time could be exercised even after the time originally fixed had expired and the consequences contemplated has occurred.
7. In Narayanan v. Madhavan (1999 (2) KLJ 84) a learned Judge of this court held that the court which had rejected a plaint under Order VII Rule 11(c) of the Code of Civil Procedure had the power to extend the time for paying the court fee and to take back the suit on file and to proceed with it in accordance with law. It is seen that none of the earlier decisions of this court bearing on the subject and above referred to were brought to the notice of the learned Single Judge. To the extent the said decision runs counter to the principles recognised in the decisions in Ummen v. Abraham (1959 KLJ 1466), Haji Hassan Rawther v. Bulgheese Beevi (1971 KLT 613) and Mathunni Panicker v. Mariyamma Kunjamma (1977 KLT 927). The decision cannot be said to lay down the correct law. In fact, it stands overruled by the decision of the Division Bench in Mable v. Dolores (2001 (2) KLT 612 = AIR 2001 Ker. 353). In view of this, the said decision need not be dealt with in any further detail. The same is the position regarding the decision in Varghese v. Devi Academy (1999 (1) KLT 440), which also stands overruled by the Division Bench in Mable v. Dolores (2001 (2) KLT 612 = AIR 2001 Ker. 353). We are of the view that once a plaint is rejected under Order VII Rule 11(c) of the Code of Civil procedure for non-payment of court fee, the remedy available to the plaintiff is only by way of an appeal or by way of a review and no application either under Order IX Rule 9 of the Code of Civil Procedure or under Section 151 of the Code of Civil Procedure would lie to restore the suit. The power under Section 151 of the code which is the 'saved power' inherent in every court, cannot be exercised in a situation where the litigant has a clear remedy provided by the Code if he feels aggrieved by the rejection of his plaint for non-payment of court fee. As far as the rejection of the plaint is concerned, it is also clear that such rejection comes within the definition of a 'decree' and the effect of the inclusive definition of decree cannot be given the go by, by resort to the inherent powers of the court and the mode of getting rid of a decree known to law, which is either by way of an appeal or by way of a review, unless it be a decree that comes under Order IX of the Code.
8. The decision of a learned Single Judge of the Patna High Court in State of Bihar and Ors. v. Mansoor Alam Khan and Anr. (AIR 1983 Patna 6) holding that where the appeal was dismissed for non-payment of court fee, it will be a dismissal for default and it would not be a decree under Section 2(2) of the Code is seen rendered without reference to the Full Bench decision of that Court. IT is also seen stated that there is no provision for rejection of a memorandum of appeal under Order XLI of the Code of Civil Procedure. But if an appeal is registered, then the appeal is required to be dismissed and not the memorandum of appeal. With respect, we find it somewhat difficult to follow the ratio of that decision. In our context what happened was that the appellant paid one-third of the court fee due on the appeal in terms of the Explanation of Section 52 of the Kerala Court Fess and Suits Valuation Act, introduced by an amendment. The appeal was registered. It was sent up for admission. The balance court fee, being two-third of the total payable, had to be paid by the appellant if the appeal was to be admitted. In this case, the appeal was admitted on 7.12.1999. The appellant was therefore, obliged to pay the balance court fee in terms of Section 52 of the Court Fees Act within fourteen days of such admission. The Court itself had a power to extend the time for paying the balance court fee, but not for a period beyond thirty days. Therefore, going by the ratio of the decision of the learned single Judge in State of Bihar and Ors. v. Mansoor Alam Khan and Anr. (AIR 1983 Patna 6), in our case the dismissal can only be a dismissal of the appeal and not a rejection of the memorandum of appeal. The decision of the single Judge in State of Bihar and Ors. v. Mansoor Alam Khan and Anr. (AIR 1983 Patna 6) even if it lays down the correct law, cannot be of help to the appellant in the case on hand.
9. The question then is what is the position when a Memorandum of Appeal is rejected for non-payment of court fee. This aspect assumes importance in view of the special provision now available in the Court Fees Act providing for only payment of one third of the court fee initially and for payment of the balance two thirds of the court fee after the appeal is admitted under Order XLI Rule 11 of the Code of Civil Procedure. A decree is a formal expression of an adjudication which so far as regards the court expressing it, conclusively determines the rights of parities. When a Memorandum of Appeal is rejected for non-payment of two thirds court fee or the court fee due o n the Memorandum of Appeal, it amounts to a final decision as far as the court making it is concerned. May be it does not contain an adjudication of rights of parties. But the inclusive definition contained in Section 2(2) of the code brings within its preview, the rejection of a plaint inclusive of a rejection under Order VII Rule 11)(c) of the Code a Civil Procedure. Section 96 of the Code only provides that an appeal would lie from an original decree if it is not otherwise expressly barred by the Code. The definition of 'decree' after including rejection of a plaint under Order VII Rule 11 of the Code, excludes form its purview, any order of dismissal for default. Order XLI of the Code of Civil Procedure dealing with appeals from original decrees deals with certain contingencies when a Memorandum of Appeal can be rejected or an appeal can be dismissed for default. Order XLI Rule 3 provides that where the Memorandum of Appeal is not drawn up in the manner prescribed by Rule of Order XLI, the appeal may be rejected. Where the court rejects the Memorandum of Appeal, it shall record the reasons for such rejection. Order XLI Rule 1(3) provides that where the appeal is against a decree for payment of money the appellant shall within the time allowed by the appellate court, deposit the amount disputed in the appeal or furnish security in respect thereof, as the court deems fit. No particular consequence is provided for non-compliance with Order XLI Rule 1(3) of the Code, but it is possible to say that can also lead to a rejection of the appeal under Order XLI Rule 3 of the Code, in view of the fact that there is a failure to comply with the requirement of Order XLI Rule 1(2) while filing the appeal. But some courts have taken the view and a learned single Judge of this court has also adopted that view, that Order XLI Rule 1(3) of the Code is not mandatory and hence the failure to comply with the requirement of that Rule cannot lead to a rejection of the Memorandum of Appeal. Since we are not called upon to decide that question in this appeal, we do not think it necessary to pursue that aspect further. The other power to dismiss the appeal is under Rule 11 of the Order XLI and that is in a case where the appellate court can dismiss the appeal if on the date fixed for hearing the appellant does not appear when the appeal is called on for hearing or where the court finds that the appeal does not deserve to be admitted on the merits of the case. The other contingency is provided for in Order XLI Rule 17 of the Code where the appellant court is empowered to dismiss the appeal after it is ripe for hearing, for default of the appearance of the appellant. Rule 18 of Order XLI enables the court to dismiss the appeal where notice is not served in consequence of the failure to deposit costs or the process for taking out the notice. A power is given to the court under Order XLI Rule 19 of the Code to re-admit the appeal dismissed for default either under Rule 17 or Rule 31 provides what the judgment of an appellate court should contain and Rule 35 of Order XLI provides what all should be contained in a decree to be drawn up pursuant to a decision in an appeal in terms of Order XLI Rule 31 of the Code. Rule 37 of Order XLI provides that a copy of the judgment and the decree certified by the appellate court shall be sent to the court which passed the decree appealed from and shall be filed with the original proceeding in the suit. The only other provision to be noted here is Rule 33 of Order XLI which provides that the appellate court shall have power to pass any decree and to make any order which ought to have been passed or made by the trial court. A rejection of an appeal for non-payment of balance court fee, under explanation to Section 52 of the Court Fees Act is not covered by any of these provisions.
10. The definition of 'decree' specifically includes the rejection of a plaint, though it excludes any order of dismissal for default. Rejection of a plaint is provided for by Rule 11 of Order VII and under Rule 11(c) of Order VII. If the plaint is written upon paper insufficiently stamped and plaintiff, on being required by the court to supply the required stamp paper fixed by the Court, fails to do so, the Court can reject the plaint. Rule 12 of Order VIII states that where the plaint is rejected, the Judge is to record an order with the reasons for such order of rejection. Dealing with a rejection of a plaint under Order VII Rule 11(d) of the Code, the Supreme Court, has held in State of Punjab, v. S.S. Singh (AIR 1961 SC 493) that the order of rejection was appealable as a decree and the same was not revisable. The position should be the same even if a case falls under Order VII Rule 11(c) as in this case or under Clause (b) or (a) of Rule 11 of Order VII. Once it qualifies to be a 'decree' going by the main body of the definition of the decree, with particular reference to the inclusive part, whether it is possible still to understand the rejection of a memorandum of appeal for non-payment of balance court fee as an order of dismissal for default is the question. According to Ramanatha Iyer's Law Lexicon, the word 'default' in relation to proceeding in Court is generally used to signify the failure of one party or the other to take some step in the action on other proceeding at the proper time, where by the party so failing becomes liable to certain consequences. Formerly the meaning of the word appears to h ave been restricted to non-appearance in Court, but it has of late been used with a wider significance. Therefore, default only means the failure of a party to do something inviting certain consequences. The failure to pay the balance court fee may, therefore, be default inviting certain consequences. What that consequence is, is provided by Order VII Rule 11(c) of the Code of Civil Procedure and that consequence is the rejection of the plaint or the memorandum of appeal in view of Section 107 of the Code of Civil Procedure. This consequence is specifically dealt with by the Code, which provides that a rejection of the plaint would amount to a decree as defined in the Act. If by virtue of Section 107 of the Code Order VII is held to be applicable to appeals, clearly the rejection of the appeal for non-payment of court fee or balance court fee in view of the Explanation to Section 52 of the Court Fees Act, can only be understood as a decree giving rise to consequences arising therefrom. The fact that a default on the side of the appellant led to the consequence does not appear to be material. Once a default occurred, the consequence had followed and in the contemplation of the Code of Civil Procedure, that consequence leads to a decree in the appeal filed by the appellant. If we look at it from that point of view, it appears to us that the rejection of an appeal for non-payment of balance court fee could not be considered to be an order dismissing the appeal for default. It can only be considered to be only a rejection of the appeal and hence a decree in terms of Section 2(2) of the Code of Civil Procedure in view of Order VII Rules 11 and 12 of the Code read with Section 107 of the Code. In this situation, we are inclined to take the view expressed by Sreedharan, J. (as he then was) in Muhammedkutty v. Kunjamma (1985 KLT 1056) to hold that a petition for restoration of the appeal filed invoking Section 151 of the Code of Civil Procedure, is not maintainable.
11. Therefore, without prejudice to the right of the appellant to take the proper steps that may be permissible to him under law, we dismiss this petition.