Madras High Court
Darsana Bai (Died) vs Nepc India Limited on 23 January, 2014
Author: R.S.Ramanathan
Bench: N.Paul Vasanthakumar, R.S.Ramanathan, K.Ravichandrabaabu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.01.2014
CORAM
THE HONOURABLE MR. JUSTICE N.PAUL VASANTHAKUMAR
and
THE HONOURABLE MR. JUSTICE R.S.RAMANATHAN
and
THE HONOURABLE MR. JUSTICE K.RAVICHANDRABAABU
C.R.P.(NPD)No.1974 of 2003,
C.M.P.No.20695 of 2003
and
A.S.SR.No.60263 of 2012
C.R.P.(NPD)No.1974 of 2003
1.Darsana Bai (died)
2.Shanbagavalli
3.Ranjani .. Petitioners
...
1.C.Saroja
2.C.Lakshmanan
3.C.Damodaran
4.C.Purushothaman
5.C.Shankar
6.C.Shanthakumari
7.C.S.Hemavathi
8.C.Jamuna
9.C.Pushpa
10.C.Kumar
11.C.Kasthuri
12.C.Rani
13.Sridhar
14.Karthik
15.Panjalai
16.Mani
17.Sakunthala .. Respondents
(Respondents 13 to 17 are given up)
A.S.SR.No.60263 of 2012
Aroni Commercials Ltd.,
formerly known as
Aroni Chemical Industries Ltd.,
carrying on business at Birlagram,
Nagda, Madhya Pradesh 456 331 .. Appellant
vs.
NEPC India Limited,
represented by its Vice Chairman,
Mr.Rajkumar Khemka,
carrying on business at
No.36, Wallajah Road,
Chennai 600 002. .. Respondent
Civil Revision Petition No.1974 of 2003 filed under Article 227 of the Constitution of India, against the order passed by the learned VII Additional Judge, City Civil Court, Chennai in A.S.No.136 of 2001 against O.S.No.7273 of 1996 dated 10.10.2003 in Check Slip No.66/XXVI/C.C.Ct.
Appeal Suit in SR No.60263 of 2012 under Section 96 of the Code of Civil Procedure against the Judgment and Decree dated 13.2.2012 in O.S.No.11042 of 2010 on the file of the Additional District Judge, Fast Track Court No.II, Chennai.
C.R.P.(NPD)No.1974 of 2003
For Petitioners : Mr.S.Subbiah
For Respondents 1
to 5, 8, 10 to 12 : Mr.R.Selvakumar
Respondents 13 to 17 given up
A.S.SR.No.60263 of 2012
For Appellant : Mr.Karthik Seshadri
___
Amicus Curiae : Mr. A.L.Somayaji
Advocate General,
Assisted by Mr.D.Krishnakumar,
Addl.Govt.Pleader
O R D E R
R.S.RAMANATHAN, J In Civil Revision Petition (NPD) No.1974 of 2003, in the matter of Darsana Bai (died) and others Vs.C.Saroja and others, one of us (K.RAVICHANDRABAABU, J) referred the following questions to a Larger Bench, having regard to the conflict of views rendered in the judgment reported in 2012 (5) CTC 610 (DB) : (DB) in the matter of S.S.Durai Pandian & another v. S.S.Pandian and 1958 (1) MLJ 263 in the matter of S.R.Narayana Ayyar Vs. Mavalathara Veerankutti & others in respect of the Court Fee payable in an Appeal before the High Court when the suit was originally filed before the original side of the High Court and later transferred to a City Civil Court consequent upon enhancement of the pecuniary jurisdiction of the City Civil Court.
(i) Whether additional Court fees need to be paid in respect of suits, which were transferred from High Court to City Civil Court consequent upon the enhancement of pecuniary jurisdiction, by treating such transferred Court (City Civil Court) as the Court of first instance as held in S.S.Durai Pandian's case, 2012 (5) CTC 610 (DB) : 2012 (4)LW 89 (DB)?
(ii) Whether such additional Court fees need not be paid in the absence of specific provisions for such collection under the Tamil Nadu Court-Fees and Suits Valuation Act, 1955, as held in S.R.Narayana Ayyar's case, 1958 (1) MLJ 263 (DB)?
2. In the earlier judgment reported in 2012 (4) L.W. 89 cited supra, a Hon'ble Division Bench of this Court held that under Section 52 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955, Court fee payable in an Appeal shall be the Court fee that would be payable in the Court which passed the Judgment and Decree and interpreted Section 52 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955, holding that fee that would be payable in the Court of first instance would refer to the Court which passed the Judgment and decree in that suit and not the Court where the suit was originally filed and the Court fee that was paid at the time of filing the suit, cannot be taken into consideration while filing an Appeal, after the suit was transferred from the original side of the High Court to the City Civil Court.
3. A.S. SR.No.60263 of 2012 was filed against the Judgment and Decree in O.S.No.11042 of 2010 on the file of the Additional District Judge, Fast Track Court No.II, Chennai, and while filing the Appeal, the appellant paid Court fee, which was paid in the suit at the time of filing of the suit in the Original Side of the High Court. An objection was raised by the Office regarding the Court Fees paid in the Memorandum of Appeal on the basis of the Judgment reported in 2012 (4) L.W. 89 cited supra. The learned counsel for the appellant in that Appeal answered the query raised by the Office directing the appellant to pay Court fee that would have been payable in the City Civil Court under the provisions of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955 and contended that the phrase, "Court of first instance" referred in Section 52 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955 means only the Court in which the suit was originally filed and therefore, while filing appeal under Section 52 of the Act, the same Court fee paid before the Original side of the High Court requires to be paid.
4. Therefore, My Lord, the Hon'ble Chief Justice referred the following points to the Full Bench:
(i) Whether additional Court fees need to be paid in respect of suits, which were transferred from High Court to City Civil Court consequent upon the enhancement of pecuniary jurisdiction, by treating such transferred Court (City Civil Court) as the Court of first instance as held in S.S.Durai Pandian's case, 2012 (5) CTC 610 (DB) : 2012 (4)LW 89 (DB)?
(ii) Whether such additional Court fees need not be paid in the absence of specific provisions for such collection under the Tamil Nadu Court-Fees and Suits Valuation Act, 1955, as held in S.R.Narayana Ayyar's case, 1958 (1) MLJ 263 (DB)?
On the date of hearing, the following point was also added after informing the counsel on both sides.
(iii) In the event of answering the second point in the affirmative, what is the Court fee payable under Section 52 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955, in the appeal filed against the decree passed by the City Civil Court, whether it is the Court fee payable in the plaint filed before the High Court, or the Court fee which ought to have been paid if the suit had been filed in the City Civil Court?
5. In these matters, admittedly, the suit was filed before the Original Side of this Court and the Court fee was paid as per the High Court Fees Rules 1956. During the pendency of the suit by reason of the enhancement of the pecuniary jurisdiction of the City Civil Court, these suits were transferred to the City Civil Court and were tried and the plaintiff was not directed to pay any additional Court fee that would be payable had the suit been filed before the City Civil Court and Decree was passed. When the Appeal was filed against such Decree, the question was raised regarding Court fee payable in the First Appeal having regard to Section 52 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955. Under Section 52 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955, the Court fee payable in Appeal shall be the same as the fee that would be payable in the "Court of first instance" on the subject matter of the Appeal.
6. It is contended by the learned counsel for the petitioners that the phrase "Court of first instance" shall mean only the Court in which the suit was originally filed. In this case, it is the Original Side of the High Court and therefore, fee payable in the Appeal shall be the same that was paid in the High Court when the suit was filed and the petitioners cannot be directed to pay additional Court fee on the subject matter of the Appeal by interpreting the phrase "Court of first instance" as the Court which passed the decree. They also contended that when a case was transferred from the Original Side of the High Court to the City Civil Court by reason of the enhancement of pecuniary jurisdiction of the City Civil Court, the plaintiff was not directed to pay additional Court fee that would be payable had the suit been instituted in the City Civil Court. In the same analogy, while filing the appeal, the Court fee that was paid while instituting the suit, alone shall be payable and not the Court fee payable in the Court which passed the decree.
7. Mr.S.Subbiah, learned counsel for the petitioners in C.R.P.No.1974 of 2003 submitted that Court fee, being a Fiscal Act, cannot be altered or changed detrimental to the party during the pendency of the proceedings and, by directing the party to pay enhanced Court fee after transferring the case from the High Court to the City Civil Court, the right of the party to file an appeal is impaired, which is not permissible and in support of his contention, he relied upon the judgment of the Hon'ble Supreme Court reported in AIR 1960 SUPREME COURT 980(1) in the matter of State of Bombay v. M/s.Supreme Genral Films Exhange Ltd.,. He further contended that the phrase, "Court of first instance" mentioned in Section 52 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955, should be taken its ordinary meaning and therefore, it can only mean the Court fee that was paid when the suit was filed in a Court and it will not mean the Court to which the suit was subsequently transferred and had it been the intention of the legislature that the Court fee payable in an Appeal shall be the Court fee that would be payable in the Court which decides the suit that could have been mentioned clearly in Section 52 of the said Act and conspicuously the legislature did not state that Court fee that would be payable in the Court which decides the suit and the legislature used the phrase, "Court fee that would be payable in the Court of first instance" and therefore, the legislature wanted the very same Court fee that was paid in the Court of first instance which means the Court in which the suit was filed, in this case, the High Court, and therefore, irrespective of the transfer of the case from the High Court to the City Civil Court in an Appeal filed against the decree passed in the transferred suit, it is enough if the Court fee paid in the High Court is paid and there is no need to pay the enhanced Court fee by treating the Court which decides the suit as a Court of first instance. He also submitted that the phrase, "Court of first instance" is also used in Section 37 of the Code of Civil Procedure and the meaning given in that Section shall not be taken into consideration as it deals with the execution of the decree and we are not concerned with the execution of the decree and therefore, the meaning given to Court of first instance in Section 37 of the Code of Civil Procedure cannot be applied to the meaning to be given under Section 52 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955.
8. Mr.Karthik Seshadri, learned counsel appearing for the appellant in A.S.SR.No.60263 of 2012, which was also referred along with C.R.P.No.1974 of 2003 contended that under Section 52 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955, a deeming provision is made and it is stated that the Court fee payable in an Appeal shall be the same as the fee that would be payable in the Court of first instance and therefore, whenever a deeming provision is made, it must be given full effect and if so, the Court fee paid at the time of filing of the suit must be the Court fee payable in an Appeal and the Registry cannot insist Court fee that would be payable in the Court which passed the decree and there is a lot of difference between the Court which passed the Court and the Court of first instance and the legislature being conscience of the difference between the two phrases deliberately did not use the word, "Court which passed the decree" and used the word, "Court of first instance" and therefore, it is sufficient if the Court fee that was paid before the High Court is paid in the Appeal and there is no need to pay any enhanced Court fee. He also relied on the Full Bench Judgment reported in ILR 50 Mad 857 in the matter of Daivanayaka Reddiyar and two others v. Renukambal Ammal; AIR 1957 S.C. 540 in the matter of Garikapati Veeraya v. N.Subbiah Choudhry and others, who was referred to in AIR 1960 SUPREME COURT 980 (1) in the matter of State of Bombay v. M/s.Supreme General Films Exhange Ltd.,. in support of his contention.
9. On the other hand, learned Advocate General, Mr. A.L.Somayaji, submitted that the question of law is no longer res integra and in the judgment reported in 1998-1-L.W. 807 in the matter of B.Devendrakumar v. R.Ranganathan, the learned single Judge of this Court interpreted Section 52 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955, and the same was also considered by the Hon'ble Division Bench of this Court in the Judgment reported in 2012-4-L.W.89 in the matter of S.S.Durai Pandian and another v. S.S.Pandian. He also submitted in the judgement reported in 1958 (1) Mad 291, the order of the Hon'ble Division Bench was concerned with the Court fee payable after the suit was transferred from the High Court to the City Civil Court by reason of the enhancement of the jurisdiction of the City Civil Court and in that context, the Hon'ble Division Bench held that there was no necessity to pay enhanced Court fee when a suit was transferred from the High Court to the City Civil Court by reason of the enhancement of pecuniary jurisdiction of the City Civil Court and when a suit is transferred on the basis of the order passed by the High Court at the instance of either party, then under Section 16(3) of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955, enhanced Court fee has to be paid, whereas in these two cases, the question involved is about the Court fee payable in an Appeal from the decree passed by the City Civil Court after the suit was transferred from the High Court to the City Civil Court and this matter was dealt with by the Division Bench in the judgment reported in 2012 (4) LW 89 and correct interpretation was given to Section the Tamil Nadu Court-Fees and Suits Valuation Act, 1955, and the same can be upheld.
10. Heard the learned counsel appearing for the parties.
11. As stated supra, by reason of the enhancement of pecuniary jurisdiction of the City Civil Court, suits were transferred from the High Court to the City Civil Court either before or after framing of issues and the plaintiffs were not directed to pay any additional Court fee after the transfer and after the disposal of the suit by passing the decree, the aggrieved party filed the appeal by paying the Court fee that was paid in the high Court where the suit was originally filed and that is questioned by the office stating that as per Section 52 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955, the appellant ought to have paid the Court fee that would be payable in the City Civil Court had the suit been instituted in the City Civil Court and that was challenged by the appellants. To appreciate the same, we will have to see the provisions of Section 52 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955, which is as follows:-
"52. Appeals - The fee payable in an appeal shall be the same as the fee that would be payable in the Court of first instance on the subject-matter of the appeal:
Provided that, in levying fee on a memorandum of appeal against a final decree by a person whose appeal against the preliminary decree passed by the Court of first instance or by the Court of appeal is pending, credit shall be given for the fee paid by such person in the appeal against the preliminary decree.
Explanation (1).-- Whether the appeal is against the refusal of a relief or against the grant of the relief, the fee payable in the appeal shall be the same as the fee that would be payable on the relief in the Court of first instance.
Explanation (2).-- Costs shall not be deemed to form part of the subject-matter of the appeal except where such costs form themselves the subject-matter of the appeal or relief is claimed as regards costs on grounds additional to, or independent of, the relief claimed regarding the main subject-matter in the suit.
Explanation (3).-- In Claims which include the award of interest subsequent to the institution of the suit, the interest accrued during the pendency of the suit till the date of decree shall be deemed to be part of the subject-matter of the appeal except where such interest is relinquished.
Explanation (4).--Where the relief prayed for in the appeal is different from the relief prayed for or refused in the Court of first instance, the fee payable in the appeal shall be the fee that would be payable in the Court of first instance on the relief prayed for in the appeal.
Explanation (5).-- Where the market value of the subject-matter of the appeal has to be ascertained for the purpose of computing or determining the fee payable, such market value shall be ascertained as on the date of presentation of the plaint."
12. It is seen from the Section that the fee that would be payable in the Court of first instance shall be the fee payable in Appeal on the subject matter of the Appeal. Therefore, we will have to find out the meaning of the phrase "fee that would be payable in the Court of first instance". If the phrase, "Court of first instance" refers to the Court in which the suit was, originally, filed, then there is no need to pay any additional Court fee and the appellant can file Appeal by paying the same Court fee that was paid in the suit when it was filed in the High Court. If the Court of first instance means the Court which passes the decree, then the appellant is liable to pay the additional Court fee.
13. Before doing that exercise, we shall understand the principles of Interpretation. Justice G.P.Singh, in his Book, "Principles of Statutory Interpretation Tenth Edition 2006, at Page Nos.113 to 115, stated as follows:-
As approved by the Supreme Court in the judgments reported in AIR 1958 SC 353 (Workmen of Dimakuchi Tea Estate v. Management of Dimakuchi Tea Estate), AIR 1958 SC 414 (State of U.P. v. C.Tobit), AIR 1976 SC 2386 (Santasingh v. State of Punjab), 1976 SCC (Cri) 546 (Mukesh K.Tripathi v. Senior Divisional Manager), "the words of a statue, when there is doubt about their meaning, are to be understood in the sense in which they best harmonise with the subject of the enactment and object which the Legislature has in view. Their meaning is found not so much in a strict grammatical or etymological propriety of language, nor even in its popular use, as in the subject or in the occasion on which they are used, and the object to be attained". The courts have declined "to be bound by the letter, when it frustrates the patent purposes of the statute. The Hon'ble Supreme Court also held that "it is a recognised rule of interpretation of statutes that expressions used therein should ordinarily be understood in a sense in which they best harmonise with the object of the statue, and which effectuate the object of the Legislature. Therefore, when two interpretations are feasible the Court will prefer that which advances the remedy and suppresses the mischief as the Legislature envisioned. The Court should adopt an object oriented approach keeping in mind the principle that legislative futility is to be ruled out so long as interpretative possibility permits. The object oriented approach, however, cannot be carried to the extent of doing violence to the plain language used by rewriting the section or substituting words in place of the actual words used by the Legislature vide principles of statutory interpretation by Justice G.P.Singh, Tenth Edition 2006 P.113 to 115.
14. It is stated by LORD MANSFIELD "Where there are different statutes in pari materia though made at different times, or even expired, and not referring to each other, they shall be taken and construed together, as one system and as explanatory of each other.
15. In the same book at Pages 278 to 281, it is stated as follows.
The application of this rule of construction (rule of pari materia) has the merit of avoiding any apparent contradiction between a series of statutes dealing with the same subject; it allows the use of an earlier statue to throw light on the meaning of a phrase used in a later statue in the same context; it permits the raising of a presumption, in the absence of any context indicating a contrary intention, that the same meaning attaches to the same words in a later statute as in an earlier statute if the words are used in similar connection in the two statutes; and it enables the use of a later statute as parliamentary exposition of the meaning of ambiguous expressions in an earlier statute.
16. As already noticed, use of same words in similar connection in a later statute gives rise to a presumption that they are intended to convey the same meaning as in the earlier statute. On the same logic when words in an earlier statue have received an authoritative exposition by a superior court, use of same words in similar context in a later Act will give rise to a presumption that Parliament intends that the same interpretation should also be followed for construction of those words in the later statute. The rule as stated by GRIFFITH, C.J., and approved by the Privy Council (LORD HALSBURY) is: "When a particular form legislative enactment, which has received authoritative interpretation whether by judicial decision or by a long course of practice, is adopted in the framing of a later statute, it is a sound rule of construction to hold that the words so adopted were intended by the Legislature to bear the meaning which has been so put upon them". The rule in the form stated by JAMES, L.J. and approved by LORD BUCKMASTER is as follows: "When once certain words in an Act of Parliament have received a judicial construction in one of the superior courts and the Legislature has repeated them without alteration in a subsequent statute, I conceive that the Legislature must be taken to have used them according to the meaning which a court of competent jurisdiction has given to them.
17. JAMES, L.J. Himself reiterated the rule in slightly different words and according to LORD MACMILLAN in a better form, in a later case thus: "If an Act of Parliament uses the same language which was used in a former Act of Parliament referring to the same subject, and passed with the same purpose, and for the same object, the safe and well-known rule of construction is to assume that the Legislature when using well known words upon which there have been well-known decisions uses those words in the sense which the decisions have attached to them. It will be seen that LORD BUCKMASTER treated the rule as one of 'absolute obligation' whereas LORD MACMILLAN treated the same 'as a canon of construction' i.e. As a presumption in the circumstances where judicial interpretation was well settled and well recognised and even then he thought that the rule must yield to the fundamental rule that in construing statutes grammatical and ordinary sense of the words is to be adhered to, unless it leads to some absurdity, repugnance or inconsistency. The House of Lords (LORD SCARMAN, LORD BRANDAN and LORD TEMPLEMAN) recently observed that the view of LORD MACMILLAN accords with modern principles and should be preferred to that of LORD BUCKMASTER.
18. The rule obviously will have no application when the decisions on the earlier Act are not consistent; or when they are in fact shown to be erroneous. The rule has also no application to a purely consolidation Act which affords no opportunity to Parliament of reconsidering the previous Act which are consolidated. Again it is not to be presumed that Parliament in any subsequent Act dealing with a related but identical subject-matter has taken account of and adopted as correct all judicial pronouncements as to the meaning of ordinary English words appearing in a statutory instrument made under an earlier Act. Further, the presumption arising under the rule is not conclusive and will be weak when the interpretation of the former Act was given by only one of the High Courts and the matter was not taken to the highest court in appeal. "The true view" said LORD DENNING: ' is that the court will be slow to overrule a previous decision on the interpretation of a statue when it has long been acted on, and it will be more than usually slow to do so when Parliament has, since the decision, re-enacted the statue in the same terms, but if the decision is in fact shown to be erroneous, there is no rule of law which prevents it being overrules. In the words of LORD SIMON: "To pre-empt a court of construction from performing independently its own constitutional duty of examining the validity of a previous interpretation, the intention of Parliament to endorse the previous judicial decision would have to be expressed or clearly implied. Mere repetition of language which has been the subject of previous judicial interpretation is entirely neutral in this respect or at most implies merely the truism that the language has been the subject of interpretation for whatever (and it may be much or little) that is worth". But the legislature may though rarely use words in a later statute "to discourage the courts from taking a fresh look at the statutory language" which has been borrowed from an earlier Act and to re-examine and depart from the principles settled by courts on a construction of the language used whatever their logic or merit."
19. In dealing with Articles 245(1) and 246 of the Constitution which are in pari materia with sections 99(1) and 100 of the Government of India Act, 1935, VENKATARAMA AIYAR, J observed: It is a well-settled rule of construction that when a statue is repealed and re-enacted and words in the repealed statute are reproduced in the new statute, they should be interpreted in the sense which had been judicially put on them under the repealed Act, because the Legislature is presumed to be acquainted with the construction which the courts have put upon the words, and when they repeat the same words, they must be taken to have accepted the interpretation put on them by the court as correctly reflecting the legislative mind". Thus, the Supreme Court while construing the words 'the court by which the person is found guilty' as they occur in section 6(1) of the Probation of Offenders Act, 1958, referred to decisions construing similar words in section 562 of the Code of Criminal Procedure, 1898, an enactment in pari materia and held in the light of those decisions that the words in question were wide enough to include an appellate court. Similarly, it has been held that section 17(b) of the Wealth-tax Act, 1957, is in pari materia with section 34 (b) of the Income-Tax Act, 1922, and in interpreting the former, decisions interpreting the latter can be relied upon vide principles of statutory interpretation by Justice G.P.Singh, Tenth Edition, pages 278 to 281.
20. In the judgment reported in (1990) 3 Supreme Court Cases 624 in the matter of F.S.Gandhi (dead) by LRs v. Commissioner of Wealth Tax, Allahabad, it is held that where Court interprets an expression in a provision in a particular manner and the legislature subsequently amends the provision but repeats the same expression in the amended provision, the legislature must be taken to have used the expression to bear the meaning which had been put upon it earlier by the court."
21. In the judgment reported in (1999) 7 Supreme Court Cases 359 in the matter of Board of Trustees of the Port of Bombay and others vs. Sri Yanesh knitters, it is held that it is permissible to read the provisions of two Acts together when the same are complementary to each other.
22. In the judgment reported in (2004) 1 Supreme Court Cases 755 in the matter of Ahmedabad Pvt. Private Primary Teachers'Association vs. Administrataive Officer and others, it is held that by applying the doctrine of "pari materia" reference to other statutes dealing with the same subject or forming part of the same system is permissible aid to the construction of provision in a statute.
23. Though in a fiscal statute, the provision must be strictly interpreted giving every benefit of doubt to the subject and lightening as far as possible the burden of Court fees on the litigant, in the present case, the said principles cannot be applied as we are concerned with the meaning of the phrase "Court of first instance" found in Section 52 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955 having regard to the usage of the same phrase in the other statutes to find out the correct meaning of the said phrase.
24. Bearing these principles in mind, we shall see the meaning of "Court of first instance". "Court of first instance" means the Court of original jurisdiction as per the Law Lexicon by P.Ramanatha Iyer. "Court of first instance" has not been defined in the Tamil Nadu Court-Fees and Suits Valuation Act, 1955, but, in Sections 21 and 37 of the Code of Civil Procedure, there is a reference to the phrase "Court of first instance". According to Mr.S.Subbiah, learned counsel for the petitioners that the meaning given to the phrase "Court of first instance" in Section 37 C.P.C. cannot be taken into consideration while interpreting the phrase "Court of first instance" in Section 52 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955, stating that Section 37 C.P.C deals with the execution proceedings and therefore, in that context, it was interpreted as the Court which passed the decree and such interpretation cannot be applied. No doubt, Section 37 C.P.C. deals with the execution of the decree. Nevertheless, the meaning of the phrase, "Court of first instance" mentioned in Section 37 CPC can also be taken into consideration to find out the meaning of the phrase, the Court of first instance stated in Section 52 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955, having regard to Section 3(iv) of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955. Section 11 of the Suits Valuation Act, 1887 also employes the same phrase. Therefore, in our opinion, the meaning of the word, "Court of first instance" as used in Section 37 C.P.C. and Section 11 of the Suits Valuation Act, 1887 will be a guiding factor to arrive at the meaning to be given to the Court of first instance found in Section 52 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955.
25. Further Explanation IV to Section 52 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955, also makes it clear that the phrase "Court of first instance" shall only mean the Court which passed the decree. Where the relief prayed for in the appeal is different from the relief refused in the Court of first instance, the fee payable in the appeal shall be the fee that would be payable in the Court of first instance on the relief prayed for in the appeal. A relief can be refused only after trial while passing the decree. Therefore, when an appeal is filed against the refusal of a relief in the Court of first instance and the relief prayed for in the appeal is different from the relief that was refused, the phrase "Court of first instance" would mean only the Court which decided the suit and not the Court where the suit was filed.
26. Prior to passing of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955, two enactments occupied the filed, namely, the Court Fees Act 1870 and Suits Valuation Act, 1887. Section 11 of the Suits Valuation Act, 1887 reads as follows:-
11. Procedure where objection is taken on appeal or revision that a suit or appeal was not properly valued for jurisdictional purposes.-
(1) Notwithstanding anything in section 578 of the Code of Civil Procedure (14 of 1882 ), an objection that by reason of the overvaluation or under- valuation of a suit or appeal a Court of first instance or lower Appellate Court which had no jurisdiction with respect to the suit or appeal exercised jurisdiction with respect thereto shall not be entertained by an Appellate Court unless-
(a) the objection was taken in the Court of first instance at or before the hearing at which issues were first framed and recorded, or in the lower Appellate Court in the memorandum of appeal to that Court, or
(b) the Appellate Court is satisfied, for reasons to be recorded by it in writing, that the suit or appeal was over- valued or under- valued, and that the over- valuation or under- valuation thereof has prejudicially affected the disposal of the suit or appeal on its merits.
(2) If the objection was taken in the manner mentioned in clause (a) of sub- section (1), but the Appellate Court is not satisfied as to both the matters mentioned in clause (b) of that sub- section and has before it the materials necessary for the determination of the other grounds of appeal to itself, it shall dispose of the appeal as if there had been no defect of jurisdiction in the Court of first instance or lower Appellate Court.
(3) If the objection was taken in that manner and the Appellate Court is satisfied as to both those matters and has not those materials before it, it shall proceed to deal with the appeal under the rules applicable to the Court with respect to the hearing of appeals; but if it remands the suit or appeal, or frames and refers issues for trial, or requires additional evidence to be taken, it shall direct its order to a Court competent to entertain the suit or appeal.
(4) The provisions of this section with respect to an Appellate Court shall, so far as they can be made applicable, apply to a Court exercising revisional jurisdiction under section 622 of the Code of Civil Procedure (14 of 1882 ) or other enactment for the time being in force.
(5) This Section shall come into force on the first day of July, 1887.
27. In the judgment reported in 1956 II M.L.J 104 in the matter of Akkammal v. Kullampattiyan alias Velappa Naicken and others, Section 11 of the Suits Valuation Act (VII of 1887) was considered and it is held as follows:-
"Section 11 has the effect of curing a want of jurisdiction caused by improper valuation not only in cases where there has been a final disposal by the Lower Appellate Court but also where a case has been remanded by the Lower Appellate Court to the Court of first instance for a finding and extends even to collateral proceedings and subsequent suits."
The learned Judge accepted the AIR commentaries on the Court-fees Act and Suits Valuation Act (2nd edition) page 871 and extracted the same in the judgment as follows:-
"To sum up:
(1) Where the objection has not been taken in proper time in the lower Court and has not affected themerits of the case, it cannot be taken notice of by the appellate Court. In such a case, even if remand has to be made, itmust be made under Order 41, Civil Procedure Code, to the same Court as if there had been no defect of jurisdiction in such Court.
(2) Where the objection has been taken in proper time in the lower Court, but the merits of the case have not been affected, the appeal is to be disposed of on the merits if there aresufficient materials on the record. But if there are not sufficient materials on the record and remand is considered necessary, the remand is to be made to the Court which would be competent to entertain the suit.
(3) Where the objection has beedn taken in the lower Court and the merits of the case have been affected, the same procedure as in (2) above is to be followed.
(4) Where the objection has not been taken in proper time in the lower Court but the merits of the case have been affect, the same procedure as in (2) above is to be followed.
Thus, it seems that on the true construction of the section a return of the plaint by the appellate Court, with the result that the proceedings have to be commenced over again in another Court, is not contemplated by the section in any case, whether the objection was taken at an early stage or not and whether the merits of the case have been affected or not, by the erroneous valuation which has led to the case being disposed of by a wrong Court. It seems that t in every such case, the appellate or revisional Court is simply to proceed as if there was no defect of jurisdiction, except for the following qualification, viz., that where the objection was taken in proper time in the lower Court or the appellate Court finds that the decision has been affected on the merits or both these conditions are present, and in any such case, the appellate Court finds it necessary to send down the case for retrial or for findings on fresh issues or for fresh evidence, it shall direct its order to the Court which would be competent to entertain the suit or appeal."
28. This Section deals with the procedure where the objection is taken in appeal that the suit or appeal was not properly valued for jurisdiction purposes. A reading of Section 11 of the Suits Valuation Act 1887 would make it clear that the Court of first instance mentioned in that Section would be the Court which decides the suit and renders the Judgment and it cannot mean the Court where the suit was originally filed. As per Section 11(1)(a), an objection that the Court has no jurisdiction can be taken in appeal only when such objection was taken in the Court of first instance at or before the hearing at which issues were first framed and recorded or in the lower appellate Court in the memorandum of appeal to that Court. Therefore, if the word of "Court of first instance" means only the Court in which the suit was originally filed and not the Court which decided the suit, the question of raising any objection regarding the valuation of the suit being taken in the Court where the suit was originally filed may not arise. For example, after the institution of the suit before the High Court and before the defendant entered appearance, if the suit is transferred to the City Civil Court by reason of the enhancement of the pecuniary jurisdiction of the City Civil Court, the objection could not have been taken before the Court where the suit was filed, namely, the High Court. Therefore, when it has been stated that the objection regarding overvaluation or undervaluation ought to have been taken in the Court of first instance would only mean the Court which is going to decide the suit and not the Court where the suit was originally filed. It is also made clear in Section 11(1)(a) of the Suits Valuation Act that the objection must be taken in the Court of first instance at or before the hearing at which issues were first framed and recorded, or in the lower Appellate Court in the memorandum of appeal to that Court. Therefore, after the decree was passed, the objection can be raised in the memorandum of appeal and that would also make it clear that the phrase "Court of first instance" must mean only the Court which decides the suit and not the Court in which the suit was originally filed.
29. In our opinion, the Suits Valuation Act, 1887 was the earlier Act, prior to the passing of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955, and that was made applicable prior to 1955 and therefore, the meaning of the phrase of "Court of first instance" in Section 11 of the Suits Valuation Act, 1887 can be given to the meaning of the Court of first instance in Section 52 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955. In that event, the Court of first instance only means the Court which passed the decree and not the Court in which the suit was originally filed.
30. The above view also finds support from the following judgments:-
(i) Kiran Singh and others V. Chaman Paswan and others (A.I.R.1954 S.C.340)
(ii) Sri Rajah Ravu Venkata Mahipathi Gangadhara Rama Rao Bahadur Garu, Yuvarajah of Pithapuram and another Vs. The Province of Madras, represented by the Collector of East Godavari, Coconada ([946] II M.L.J. 282) In the judgment rendered in Kiran Singh and others V. Chaman Paswan and others, supra, it is held that the principle that underlies Section 11 of the Suits Valuation Act 1887 is that a decree passed by the Court which would have had no jurisdiction to hear the suit or appeal but for overvaluation or undervaluation, is not to be treated as what it would be but for the Section, null and void and that an objection to jurisdiction based on overvaluation or undervalution should be dealt with under that Section and not otherwise. The same principle has been adopted in Section 21 C.P.C. It is further held that the words "unless the overvaluation or undervaluation thereto has prejudicially affected the disposal of the suit or appeal on its merits" in Section 11 of the Suits Valuation Act, clearly shows that the decree passed in such cases are not liable to be interfered with by an appellate Court.
31. Similarly, in Section 21 C.P.C., the phrase "Court of first instance" is used in the very same context as it is used in Section 11 of the Suits Valuation Act, 1887. In Section 37 C.P.C., also, the phrase, " the Court which passed the decree" shall be deemed to include the Court of first instance. Though Section 37 C.P.C. is coming under Part II Execution, that cannot be the reason to exclude the meaning given to that phrase in C.P.C. while considering the scope of Section 52 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955. As a matter of fact in Sec.3(iv) of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955, it is made clear the expression used and not defined in this Act but defined in C.P.C. shall have the meanings respectively assigned to them in the said Code. Though "Court of first instance" is not defined in C.P.C., in Section 37, it includes the Court which passed the decree. Therefore, the meaning given in Sections 21 and 37 C.P.C. can be applied and the "Court of first instance" only means the Court which passed the decree and not in which the suit was originally filed.
32. As stated supra, the Code of Civil Procedure deals with the presentation of plaints and procedures regarding trial and the Tamil Nadu Court-Fees and Suits Valuation Act, 1955, deals with the payment of Court fee on the subject matter of suits and on the subject matter of appeals and therefore, having regard to the meaning given for the phrase "Court of first instance" in Section 37 C.P.C. the same can equally be applied to Section 52 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955. A reading of Section 37 C.P.C. makes it clear that the Court of first instance means the Court which passes the decree and it will not mean the Court in which the suit was filed. Therefore, having regarding to the provisions of Section 37 C.P.C and Section11 of the Suits Valuation Act, 1887, we are of the opinion that the Court of first instance stated in Section 52 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955, shall only mean the Court which passed the decree and not the Court in which the suit was originally filed.
33. The decisions reported in AIR 1960 SUPREME COURT, 980, AIR 1957, S.C. 540 and ILR 50 Mad 857 cited supra cannot be applied to the facts of this case. In the judgment reported in AIR 1960 SUPREME COURT, 980, the question that arose for consideration was what was the Court fee payable on the memorandum of appeal and whether the Court fee that was payable was according to law in force at the date of filing of the suits which was filed prior to the relevant date or according to law in force at the date of filing of the memorandum of appeal which was after the relevant date. The suit was filed on 16.4.1953 praying for decree for Rs.2lakhs and odd and decree was passed on 22.7.1954, the judgment debtor filed an appeal against the decree on 4.9.1954 and paid Court fees on the memorandum. Settlement was arrived at between the parties on 5.10.1954, and on 9.10.1954, a prayer was made for dismissal of the appeal for want of prosecution. On 18.11.1954, an application was made for refund of excess Court fees paid on the memorandum of appeal. It was contended that at the time of filing of appeal, the Court fees payable was as per the Court Fees Act, 1870. During pendency of the appeal, Court-fees (Bombay Amendment) Act 12 of 1954, and amendment to Court Fees Act 1870 was passed and the appellant paid by mistake the Court fees as per the amended Bombay Act, 12 of 1954 and therefore, the excess Court fees was paid and that must be refunded.
34. In that context, it was held by the Hon'ble Supreme Court that an impairment of the right of the appeal by putting a new restriction thereon or imposing a more onerous condition is not a matter of procedure only and it impairs or imperils a substantive right and an enactment which does so is not retrospective and cannot be applied to the pending appeal. Therefore, the Hon'ble Supreme Court held that when the appeal was filed prior to (Bombay Amendment) Act, 12 of 1954 to Court Fees Act 1870, there is no need to pay enhanced Court fees as per the Amendment Act 12 of 1954 and the Court fees paid as per the Court Fees Act, 1870 was sufficient and therefore, excess amount must be refunded.
35. The Hon'ble Supreme Court also relied upon the judgment of the Hon'ble Supreme Court reported in AIR 1957 S.C. 540 cited supra and confirmed the judgment reported in AIR 1957 SC 540. The judgment reported in ILR 1950 Mad 857 cited supra is also the same kind and in that case, the suit was filed on 21.3.1921 and the decree of the trial Court was passed on 13.3.1923 and the appeal was filed on 19th July, 1923 Madras Court Fees Amendment Act V of 1992 came into force on 18th April, 1922 by which Section 7(2) of the Court Fees Act VII of 1870 was amended. In that context, it was held that the value of the subject matter of the suit is the same throughout and it cannot be altered after the decree has been passed simply by an alteration in Fiscal enactment and if the valuation of the suit on its institution exceeds Rs.5,000/- according to the Fees Act then in force, an appeal from the decree therein lies only to the High Court by virtue of Section 13 of the Madras Civil Courts Act and not to the District Court though on the date of filing of the appeal, the suit would have had to be valued at less than Rs.5,000/- owing to amendment of the Court Fees Act in the interval. In our opinion, the Full Bench reported in ILR 1950 Mad 857 cited supra cannot also be applied to the facts of this case.
36. In the judgment rendered by the Hon'ble Supreme Court and also by the Full Bench of this Court, there was an amendment in the Court Fees Act during the pendency of the suit and therefore, the question was answered by the Hon'ble Supreme Court that a right of the parties cannot be altered by reason of the amendment to the Court Fees Act 1870 which came into existence after presentation of the suit. In the absence of any retrospection effect given in the Amendment Act, it cannot be made applicable to the suits which were filed before coming into force of that Act and also to the appeals arising from those suits. In this case, there is no change in the Tamil Nadu Court-Fees and Suits Valuation Act, 1955, during pendency of the suit, and Section 52 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955, is introduced in the year 1955 and therefore, there is no question of impairment of the right of the party while filing appeal. Section 52 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955, only declares that the Court Fees payable in appeal shall be the Court fees that would be payable in the Court of first instance on the subject matter of the suit. This provision was not introduced after the suits were filed in the present case. Therefore, the judgment reported in AIR 1960 SUPREME COURT 980 and ILR 50 Mad 857 cannot be applied to the facts of this case.
37. This can also be viewed from another angle. As per Section 1-A of the High Court Fees Rules of 1956, the Fees in all suits and proceedings instituted on or after 11th September 1968 and all proceedings by way of appeal or otherwise arising therefrom shall be levied by the Registrar according to the scale of Fees set out in Appendix 1-A thereto. As per Sub-Rule 1-A of the High Court Rules in respect of the appeal or otherwise arising from a suit or proceedings instituted on or after 11th September 1968 shall be levied by the Registrar according to the Scale of Fees set out in Appendix - 1-A. Therefore, in order to apply the Court Fees as per Appendix 1-A of the High Court Fees Rules, the appeals must be arising from the suit filed and decided by the High Court. In other words, in order to pay the Fees as per the Appendix 1-A of High Court Fees Rules, Appeal must arise from the decree passed by the High Court in its original side. Admittedly, the appeal before the High Court in these cases are not from the decree passed by the High Court on its original side but by the City Civil Court. Therefore, looking from this angle also, the Court Fees payable in an Appeal under Section 52 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955, from a decree passed by a City Civil Court, when the suit was originally filed in the High Court, shall be the Court Fees that would be payable in the City Civil Court had it been filed in the City Civil Court and that is also made clear by the phrase "fee that would be payable in the Court of first instance", which only means the Fees that was payable had the suit been filed in the City Civil Court which passed the decree.
38. We are also supported by the judgment of the Hon'ble Division Bench of this Court reported in 2012-4-L.W.89 in the matter of S.S.Durai Pandian and another v. S.S.Pandian and the judgment reported in 1998-1-L.W. 807 in the matter of B.Devendrakumar v. R.Ranganathan. The Hon'ble Division Bench by applying the first principle held that "Court of first instance" can only mean the Court which passed the decree. The learned single Judge relied upon the Full Bench Judgment of this Court reported in AIR 1938 Mad 435 = 47 L.W.488 (F.B.) and AIR 1957 A.P. 6 (D.B) held that the words "would be" mentioned in Section 52 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955, will clearly indicate the Court fee payable in the Court of first instance and not the Court fee actually paid. In other words, the learned single Judge also held that Court of first instance means only the Court which passed the decree.
39. In the judgment reported in 1958 (1) MLJ 263 : AIR 1958 Madras 291, cited supra the provisions of Section 16 of the City Civil Court was interpreted and held that when the suit has been transferred from the High Court to the City Civil Court by reason of the enhancement of pecuniary jurisdiction of the City Civil Court, there is no need to pay additional Court fees after transferring of the suit to the City Civil Court and if any such suit is transferred in the High Court at the instance of any party or by order of the High Court then the additional Court fees need be paid.
40. Therefore, Question No.1 is answered as follows. There is no need to pay additional Court fees when the suits are transferred from the High Court to City Civil Court consequent upon the enhancement of pecuniary jurisdiction.
41. Answer to Question No.2 is also in the affirmative. The Hon'ble Division Bench judgment reported in 1958 (1) MLJ 263 : AIR 1958 Madras 291, is confirmed. We also make it clear that additional Court fee need not be paid only when the suits are transferred from the original side of the High Court due to enhancement of pecuniary jurisdiction of the City Civil Court and when suits are transferred by an order of the High Court to City Civil Court, additional Court fee has to be paid on the subject matter of the suit.
42. Answer to Question No.3 is Court fees payable under Section 52 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955, is the Court Fees that would have been payable if the suit had been filed in the Court which passed the decree and not the Court fees that was paid at the time of institution of the suit and the phrase "Court of first instance" in Section 52 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955, means only the Court which passed the decree and not the Court in which the suit was filed and we affirm the judgment rendered in 2012-4-L.W.89 supra and 1998-1-L.W. 807 supra.
Reference is answered accordingly.
Before parting with the case, we would like to suggest amendments to the High Court Fees Rules, 1956. Before passing of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955, the Court Fees Act, 1870 and Suits Valuation Act, 1887 occupied the field. As per the Court Fees Act, 1870, ad volerum fee was charged and it is seen from the Schedule I that Court fee was chargeable on slab rate and the maximum fee payable on a plaint or memorandum of appeal was Rs.3,000/-. The High Court Fees Rules, 1956 repealed the High Court Rules, 1933 and as per the High Court Fees Rules, 1956, the Court Fee is levied as per Appendix IA which also provides for payment of Court Fee on slab rate and when the valuation exceeds Rs.1,00,000/-, Court Fee shall be payable at the rate of 1% on the amount. After coming into force of the Tamil Nadu Court Fees and Suits Valuation Act, 1955, as per Schedule I, when the value mentioned in the plaint or memorandum of appeal exceeds Rs.100/- for every Rs.10 or part thereof in excess of Rs.100, 75 naya paise has to be paid. On the contrary, as stated supra, as per the High court Fees Rules 1956, upto Rs.1,00,000 slab rate was fixed and exceeding Rs.1,00,000, the Court Fee payable is only 1%. Therefore, we would suggest that the Appendix IA of High Court fees Rules may be modified and Schedule I, Article 1, of Tamil Nadu Court Fees and Suits Valuation Act can be made applicable in respect of Rule 1-A of High Curt Fees Rules. In our opinion, that would also avoid filing of frivolous cases before the Original Side of the High Court by inflating the value of the claim.
(NPVJ) (RSRJ) (KRCBJ)
Index: yes / No 23.01.2014
Internet: yes / No
asvm
N.PAUL VASANTHAKUMAR, J,
R.S.RAMANATHAN, J
and
K.RAVICHANDRABAABU, J
(asvm)
Order in
C.R.P.(NPD) No.1974 of 2003,
C.M.P.No.20695 of 2003
and
A.S.SR.No.60263 of 2012
23.01.2014