Kerala High Court
Annie Cherian vs Geetha Susan George on 3 September, 2024
Author: Anil K.Narendran
Bench: Anil K.Narendran
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
Tuesday, the 3rd day of September 2024 / 12th Bhadra, 1946
RFA NO. 141 OF 2024(FILING NO.)
OS 3/2019 OF ASSISTANT SESSIONS COURT/PRINCIPAL SUB COURT / COMMERCIAL COURT,
ALAPPUZHA, ALAPPUZHA
APPELLANT(S)/PLAINTIFF:
ANNIE CHERIAN AGED 60 YEARS W/O THOMAS SHANTI, 2/216A, PBK. MAINA
ROAD, VAZHAKALA, KANAYANNUR TALUK, ERNAKULAM DISTRICT., PIN - 682021
BY ADVS.V.N.SANKARJEE,V.N.MADHUSUDANAN,R.UDAYA
JYOTHI,M.M.VINOD,M.SUSEELA,KEERTHI B. CHANDRAN,VIJAYAN PILLAI
P.K.,C.PURUSHOTHAMAN NAIR,SINEESH K.M.,SHILPA P.S.,
RESPONDENT(S)/ADDITIONAL DEFENDANTS 2 TO 5:
1. GEETHA SUSAN GEORGE, AGED 65 YEARS W/O G. GEORGE SHANTI @ GEORGE
SHANTI GEORGE, P.A. GEORGE & CO., P.O. BOX NO. 3821, CHURCH ROAD,
ALAPPUZHA (FROM SHANTI BHAVAN, ALAPPUZHA VILLAGE, THIRUVAMPADI MURI,
ALAPUZHA-1), PRESENTLY RESIDING AT 'SITHARA', VCSB ROAD, YMCA SOUTH
JUNCTION, ADJACENT TO EAST OF PAUL MURICKEN PETROL BUNK, ALAPPUZHA.,
PIN - 688011
2. P. ASHOK GEORGE AGED 42 YEARS S/O GEORGE SHANTI, GRACE VILLA, CULLEN
ROAD, DUTCH SQUARE, WESTERN SIDE, SEA VIEW WARD, ALAPPUZHA - 688012
(FROM 'SITHARA', VCSB ROAD, YMCA SOUTH JUNCTION, ADJACENT TO EAST OF
PAUL MURICKEN PETROL BUNK, ALAPPUZHA - 688 011), REPRESENTED BY HIS
POWER OF ATTORNEY HOLDER, GEETHA SUSAN GEORGE, PRESENTLY RESIDING AT
'SITHARA', VCSB ROAD, YMCA SOUTH JUNCTION, ADJACENT TO EAST OF PAUL
MURICKEN PETROL BUNK, ALAPPUZHA , EMAIL ID: [email protected],
PIN - 688011
3. ARUN GEORGE AGED 40 YEARS S/O GEORGE SHANTI, GRACE VILLA, CULLEN
ROAD, DUTCH SQUARE, WESTERN SIDE, SEA VIEW WARD, ALAPPUZHA - 688012
(FROM S/O GEORGE SHANTI, GRACE VILLA, CULLEN ROAD, DUTCH SQUARE,
WESTERN SIDE, SEA VIEW WARD, ALAPPUZHA - 688012 (FROM SITHARA', VCSB
ROAD, YMCA SOUTH JUNCTION, ADJACENT TO EAST OF PAUL MURICKEN PETROL
BUNK, ALAPPUZHA - 688 011), REPRESENTED BY HIS POWER OF ATTORNEY
HOLDER, GEETHA SUSAN GEORGE. PRESENTLY RESIDING AT 'SITHARA', VCSB
ROAD, YMCA SOUTH JUNCTION, ADJACENT TO EAST OF PAUL MURICKEN PETROL
BUNK, ALAPPUZHA, EMAIL ID: [email protected], PIN - 688011
4. P.A. GEORGE & CO. P.O. BOX NO. 3821, CHURCH ROAD, ALAPPUZHA,
REPRESENTED BY ITS MANAGING PARTNER: DEFENDANT NO. 2 GEETHA SUSAN
GEORGE. EMAIL ID: [email protected], PIN - 688011
This Un.Numbered Regular first appeal---/2024 (Filing.No.141/2024)
having come up for orders on 03.09.2024, the court on the same day passed
the following
2 / 14
ORDER
3 / 14 1 RFA (Filing) Nos.141 & 142 of 2024 "CR"
ANIL K. NARENDRAN & HARISANKAR V. MENON, JJ.
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R.F.A. (Filing) Nos.141 and 142 of 2024
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Dated this the 03rd day of September, 2024 ORDER Harisankar V.Menon, J.
These Regular First Appeals are filed by the plaintiffs in OS No.3 of 2019 and O.S.No.5 of 2019 on the files of the Sub Court, Alappuzha, instituted by them for settlement of accounts. The suits have been dismissed by the judgments and decrees dated 27.02.2024 and 26.02.2024 respectively. Aggrieved by those judgments and decrees, the plaintiffs filed the captioned appeals under Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure, 1908.
2. Registry of this Court has noticed defects in the filing of these appeals with respect to its maintainability and the court fee paid. Registry noticed that as per the decree in the suit, it was valued at Rs.1,000/- and therefore, directed the appellants to clarify whether the remedy of RFA before this Court is a proper 4 / 14 2 RFA (Filing) Nos.141 & 142 of 2024 one. It is further pointed out by Registry that the court fee paid before the trial court was insufficient.
3. The learned counsel for the appellants has replied that the suits were valued at Rs.50 lakhs and Rs.1 Crore respectively, and therefore, this Court is having jurisdiction in respect of the present appeals under Section 12 of the Kerala Civil Courts Act, 1957.
4. Registry has directed the matter to be placed before the Bench in the above circumstances.
5. We have heard the learned counsel appearing for the appellants herein.
6. The learned counsel for the appellants pointed out that the suit was valued at Rs.50 lakhs and Rs.1 Crore respectively and for the purpose of payment of court fee under Section 35 of the Kerala Court Fees and Suits Valuation Act, 1959 (for short, the 'Court Fees Act'), Rs.1,000/- was adopted and the court fee paid thereon. He also pointed out that the actual court fee to be paid can only be determined on settlement of accounts and invited the attention of this Court to the provisions of Section 35 of the Court Fees Act and the undertaking given before the trial court to the effect that the plaintiffs would pay the balance court fee on 5 / 14 3 RFA (Filing) Nos.141 & 142 of 2024 settlement of the accounts and fixing the actual amount due to the plaintiffs. The learned counsel also referred to the judgment of this Court in M.P. Mariyan v. K.K. Narayanan [1974 KLT 194] and that of the Apex Court in Subhash Mahadevasa Habib v. Nemasa Ambasa Dharmadas [(2007) 13 SCC 650], as also the relevant provisions of the Suits Valuation Act, 1887.
7. The suits before the trial court were filed for settlement of accounts. The court fee payable with respect to such suits for accounts is as provided under Section 35 of the Court Fees Act. Section 35 of the Courts Fees Act, provides as under:
"35. Suits for accounts. - (1) in a suit for accounts, fee shall be computed on the amount sued for as estimated in the plaint or on rupees one thousand, whichever is higher. (2) Where the amount payable to the plaintiff as ascertained in the suit is in excess of the amount as estimated in the plaint, no decree directing payment of the amount as so ascertained shall be passed until the difference between the fee actually paid and the fee that would have been payable had the suit comprised the whole of the amount so ascertained, is paid. If the additional fee is not paid within such time as the Court may fix, the decree shall be limited to the amount to which the fee paid extends. (3) Where in any such suit it is found that any amount is payable to the defendant, no decree shall be passed in his 6 / 14 4 RFA (Filing) Nos.141 & 142 of 2024 favour until he pays the fee due on the amount."
Under Section 35(1) of the Court Fees Act, as regards a suit for accounts, the court fee is to be computed on the amount sued for as estimated in the plaint or on Rs.1,000/-, whichever is higher. It is true that sub-section (2) of Section 35 provides for payment of the balance court fee in cases where the plaintiff becomes entitled to amounts in excess of amount estimated in the plaint, without which the decree would not be passed. However, sub- section (2) of Section 35 would apply only in a situation, where the amount found payable to the plaintiff is in excess of the amount estimated in the plaint. But that stage would arise only if there is an ascertainment of the amounts payable to the plaintiff after trying the suit. The court fee to be paid at the time of institution of the suit is with reference to sub-section (1) of Section
35. The said provision clearly says that the fee is to be calculated on the amount sued for as estimated in the plaint or on Rs.1,000/-, whichever is higher. Here, as per the plaint, the suits were valued at Rs.50 lakhs and Rs.1 Crore respectively. That being so, there was no basis for paying the court fees with reference to Rs.1,000/-, since the amount as estimated in the suits were the 7 / 14 5 RFA (Filing) Nos.141 & 142 of 2024 higher figure.
8. In such circumstances, the court fee paid at the trial stage appears to be insufficient.
9. The remedy in such a situation is provided under Section 12(4) of the Court Fees Act, which reads as under:
"12(4)(a) Whenever a case comes up before a Court of Appeal it shall be lawful for the Court, either of its own motion or on the application of any of the parties, to consider the correctness of any order passed by the lower Court affecting the fee payable on the plaint or in any other proceeding in the lower Court and determine the proper fee payable thereon.
Explanation- A case shall be deemed to come before a Court of Appeal even if the appeal relates only to a part of the subject-matter of the suit.
(b) If the Court of Appeal decides that the fee paid in the lower Court is not sufficient, the Court shall require the party liable to pay the deficit fee within such time as may be fixed by it.
(c) If the deficit fee is not paid within the time fixed and the default is in respect of a relief which has been dismissed by the lower Court and which the appellant seeks in appeal, the appeal shall be dismissed, but if the default is in respect of a relief which has been decreed by the lower Court, the deficit fee shall be recoverable as if it were an arrear of land revenue.8 / 14 6
RFA (Filing) Nos.141 & 142 of 2024
(d) If the fee paid in the lower Court is in excess, the Court shall direct the refund of the excess to the party who is entitled to it."
Thus, the appellate court is conferred with the power either of its own motion or on the application of any of the parties, to consider the correctness of any order passed by the lower court as regards the court fee payable on the plaint and thereafter determine the proper fee payable. Clause (b) of sub-section (4) of Section 12 grants power to the appellate court to require the party liable to pay the deficit court fee to satisfy the same, within such time as may be fixed by it.
10. The court fee to be paid at the appellate stage is as provided under Section 52 of the Court Fees Act, which reads as under:
"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."
(underlining supplied) Thus, the court fee to be paid in the present appeals is the fee, that "would be payable in the court of first instance on the subject matter of the appeal". Hence the court fee to be paid in the present appeals should be with reference to the court fee actually payable 9 / 14 7 RFA (Filing) Nos.141 & 142 of 2024 under Section 35 of the Court Fees Act. It is to be noticed that Section 52 of the Court Fees Act does not provide for payment of court fees as had been paid at the court of first instance. Instead, the court fee is to be paid with reference to the fee that ought to have been paid at the court of first instance. In such circumstances, there is a deficiency of court fees in the present appeals.
11. In this connection, we notice the Full Bench decision of this Court in Kurian v. Ayyappan [1982 KLT 434], wherein the question considered by the court was with reference to the court fee to be paid in an appeal against the order of the District Court in a petition for letters of administration. The proceeding before the District Court was not registered as a suit as it ought to have been. The appellant paid court fee on the appeal before this court at Rs.5/-, the court fee which is to be paid before the trial court in non-contentious suits. Registry did not accept this and the matter was placed before the Full Bench in view of an earlier judgment. Considering the above issue, the Full Bench of this Court held as follows:
"The contention urged before us by the learned counsel, 10 / 14 8 RFA (Filing) Nos.141 & 142 of 2024 nevertheless, is that court-fee payable should be governed by Section 52 and if so since he has paid court-fee other than ad valorem in the court below that should be the case in the appeal also. We need not go into the question whether he should have paid ad valorem court-fee in the court below, which, at the moment, we are not called upon to decide. But we find that irrespective of that question in this appeal the court-fee payable by him is that prescribed under Article 4 of Schedule I of the Kerala Court-Fees and Suits Valuation Act."
In the light of the above dictum also, the court fee to be paid in this appeal is the correct court fee, which ought to have been paid under Section 35 of the Act.
12. We also notice the judgment in Kochappu and others v. Somasundaran Chettiar and others [1991 (1) KLJ 462], wherein a Division Bench of this Court was considering the impact of reduction in court fee as regards appeals filed after the said reduction, in the following lines:
"4. A plain reading of the section, to our minds, makes the meaning clear and simple. A taxing officer does not have much of vexation in the calculation of the court fee for an appeal. The section refers him to what is payable on a suit instituted. Necessarily it is a suit instituted at the time when he considers the question and quantum of court fee. Given the valuation, and the ready reckoner of a schedule, the 11 / 14 9 RFA (Filing) Nos.141 & 142 of 2024 calculation is easy and simple. If practical demonstration is needed, take the facts as are available in the appeal arising from O.S.No.128 of 1987 of the Sub Court, Thodupuzha. The court fee payable on the appeal is that payable according to the schedule of a suit instituted for the same relief. The relief was evaluated in the appeal as Rs.12,78,536.20. For such a relief, as on the date of the filing of the appeal, court fee payable is Rs.87,227.00. Adopt that figure for the purpose of the appeal and the job is done. So adopted, the court fee comes to only Rs.87,227/-. Of course, this is much less compared to the court fee for the amount reckoned on the basis of the schedule in force at the time of the institution of the suit which would be Rs.1,27,854/-. That is because of the reduction in the court fee now statutorily declared by the State itself. When the reduction is declared as a policy of the State and reflected in a properly framed statute, there is no scope for a further boggling of the mind. The court fee payable is only Rs.87,227/-.
5. When matters are simple enough in the context of a not so obese statute, it is unnecessary to get enmeshed in avoidable confusion.
6. The court gets considerable comfort from the distinction the statute itself has made between the term 'payable' and the term 'paid'. The term "payable" occurs in Sections 5, 7, 10, 11, 12, 15, 20, 21, 26, 42, 46, 47, 48, 50, 52, 53, 64, among others. The term 'paid' also occurs in various sections. Some of them are Sections 61, 63, 66, 67, 68, 69, 70, and 71. The learned Advocate-General submitted that 12 / 14 10 RFA (Filing) Nos.141 & 142 of 2024 the words calling for interpretation are not a simple or singular term 'payable' but a combination of words: 'would be payable'. We do not find any substantial difference between the terms 'payable' and 'would be payable'. If the legislature intended a bodily lifting of the whole or proportionate part of the fee already paid in the lower court, it would be justifiable to expect the legislature to employ the clear and direct term 'paid'. An adoption of a different terminology-'would be payable' cannot be attributed to an accidental slip on the part of the legislature. The term 'would be' is in marked contrast with the terminology 'that would have been payable' or 'that had been paid'."
Thus, the court fee to be paid in this appeal, is to be with reference to the court fee that would be payable in the trial court and not on the basis of the court fee paid in the trial court.
13. As regards the question of jurisdiction pointed out by Registry, we may refer to the provisions of Sections 12 and 13 of the Kerala Civil Courts Act, 1957. Admittedly, the suits were valued at Rs.50 lakhs and Rs.1 Crore respectively as per the plaint and therefore, the appellants are justified in preferring the present appeal before this Court.
14. The judgments relied on by the learned counsel for the appellants are not apposite to the case at hand. The judgment in 13 / 14 11 RFA (Filing) Nos.141 & 142 of 2024 M.P.Mariyan [1974 KLT 194], was with respect to an appeal filed by the defendant in a suit for accounts, adopting a different valuation for the purpose of appeal. The judgment of the Apex Court in Subhash Mahadevasa Habib [(2007) 13 SCC 650] was with respect to the objection as regards jurisdiction being raised at the appellate stage without raising it in the trial stage.
In the result, the defect noted out by Registry as regards the deficiency of court fees paid at the trial stage and the maintainability of the appeal is overruled. At the same time, we find that there is a deficiency as regards the court fee paid in the present appeals, which the appellants are permitted to satisfy, within three weeks from today.
Sd/-
ANIL K. NARENDRAN, JUDGE Sd/-
HARISANKAR V. MENON, JUDGE ln 03-09-2024 /True Copy/ Assistant Registrar 14 / 14 APPENDIX OF RFA 141/2024(Filing No.) O.S.3/2019 COPY OF SUIT ON THE FILE OF THE HONOURABLE SUB COURT, ALAPPUZHA 03-09-2024 /True Copy/ Assistant Registrar