Andhra HC (Pre-Telangana)
D.D. Nirmal Kumar And Ors. vs G. Sunder Sekhar And Ors. on 20 October, 2005
Equivalent citations: 2005(6)ALD132, 2005(6)ALT308, AIR 2006 (NOC) 669 (ANDH. PRA.) = 2005 (6) ANDH LD 132(AP)
Author: G. Chandraiah
Bench: G. Chandraiah
ORDER G. Chandraiah, J.
1. Heard both the sides.
2. Since the issue involved in all the three revisions is connected and the result in C.R.P. No. 2343/2005 depends on the other two revisions, they are being disposed of by this common order.
3. Aggrieved by the common order dated 22.12.2004 passed by the Court of Principal District Judge, Kadapa in Check Slip Nos. 1 and 2 of 2004, C.R.P. No. 2343/ 2005 is filed and the other two revisions are filed aggrieved by the order of the Court below in refusing to extend further time for payment of Court fee.
4. By the impugned order, the Court below directed the plaintiffs to pay the Court fee separately under Section 24(d) of the A.P. Court Fees and Suits Valuation Act, 1956 (for short 'the Act') for the relief of declaration of the sale deeds dated 17.1.2004 executed by defendants 3 and 5 in favour of defendants 10 to 16 as null and void and further directed the plaintiffs to pay the Court fees separately for two reliefs under Section 26(c) i.e., for the relief of permanent injunction against defendants 1 to 9 restraining them from interfering with the management and administration of South Andhra Luthern Church; and to grant injunction against defendants 10 to 16 restraining them from interfering with the peaceful possession and enjoyment of the suit property by the plaintiffs. Aggrieved by the same, C.R.P. No. 2434/2005 is filed.
5. From the material on record it could be seen that the plaintiffs filed the suit in a vacation Court seeking following reliefs:
1. To declare the plaintiffs group as duly elected governing body of South Andhra Luthern Church;
2. To declare the registered sale deeds dated 17.1.2004 executed by the third and fifth defendants in favour of defendants 10 to 16 as void;
3. To grant permanent injunction against defendants 1 to 9 restraining them and their men or followers from in any way interfering with the management and administration of South Andhra Luthern Church by the 1st and 3rd plaintiffs and other elected body as Bishop, Vice President and Treasurer and who also represent trust board of South Andhra Luthern Church and defendants 10 to 16 and their men and followers restraining them from in any way interfering with peaceful possession and enjoyment of the suit schedule property;
4. To grant costs of the suit;
5. To grant any such other further reliefs as the Hon'ble Court may deem think fit and proper in the circumstances of the case and in the interest of justice.
6. The plaintiffs valued the suit at Rs. 1,00,00,000/- for the purpose of jurisdiction under Section 50(2) of the Act and claiming that the relief claimed in the suit falls under Section 92 of C.P.C., the plaintiffs paid a Court fee of Rs. 50/- under Section 44 of the Act. Subsequently, the Court below issued check slip No. 1/2004 directing the plaintiffs to value the reliefs 1 and 2 under Section 24(d) of the Act and to separately value the 3rd relief of permanent injunctions, as two relief were clubbed under one relief. Further during inspection by an Hon'ble Judge of this Court, as it was found that deficit Court fee was paid by the plaintiffs, the plaintiffs were directed to value the suit as directed by the Court below. Therefore, the second check slip No. 2/2004 was issued. Plaintiffs filed objections stating that whether the suit falls within the ambit of Section 92 of C.P.C. or not, is a mixed question of fact and cannot be decided at the threshold and the same can be decided during the conclusion of trial. On the other hand the learned Government Pleader supported the objections of the Court below. He further contended that since the relief to declare the sale deeds as null and void, falls under Section 37 of the Act, the Court fee has to be paid under that section. He also contended that the relief of declaration is not maintainable in civil Court and such relief can be granted under Section 23 of the A.P. Societies Registration Act.
7. Considering the above rival contentions, the trial Court framed the following issues for consideration:
1. Whether the first two reliefs of declaration prayed for by the plaintiffs have to be valued and Court fee has to be paid under Section 24(d) of the A.P. Court Fees and Suits Valuation Act and the relief of permanent injunction should be separately valued against defendants 1 to 9 and defendants 10 to 16 and Court fee has to be paid under Section 26(c) of the A.P. Court Fees and Suits Valuation Act?
2. Whether the question of Court fees should not be considered at this stage and it has to be considered only at the conclusion of the trial as contended by the advocate for the plaintiff?
3. To what relief ?
8. The Court below considering the scope of Sections 11 and 16 of the Act and also Section 92 of C.P.C. and further relying on the judgment of this Court in Lingam Ramaseshayya v. Myneni Ramaiah and Ors., AIR 1957 AP 964, and also on the judgment of the Apex Court in Pragasji Guru Bhagawandasji v. Ishwarlalbaghi Narsibhai and Ors., , upheld the check slips and directed the plaintiffs to pay the Court fee as per Sections 24(d) and 26(c) of the Act respectively and granted some time for payment of the Court fee. Aggrieved by the same and also the consequential order of rejection of the plaint on the ground of non-payment of the Court fee within the stipulated time, the present revisions are filed.
9. The learned Counsel appearing for the petitioners submitted that admittedly the property belongs to church, which is a charitable institution and falls under Section 92 of C.P.C. and therefore, the suit was permitted to be filed in a representative character. He contended that the Court below having permitted that plaintiffs to file suit under Section 92 of C.P.C. in a representative capacity, without cancelling that order, issuing the check slips, directing the plaintiffs to value the suit under Sections 24(d) and 26(c) of the Act respectively, is not sustainable. He alternatively contended that though the Court has power to issue check slip for collection of deficit Court fee from the plaintiffs, since the relief sought for, comes within the ambit of Section 92 of C.P.C., which is a mixed question of fact and law, it can be gone into at the time of trial and at the time of judgment, the Court has power to direct the plaintiffs to pay the deficit Court fee and the order of the Court below in rejecting the plaint is not sustainable. He further contended that since the property is admittedly belongs to charitable institution, for the reliefs of declaration, the Court fee can be paid under Section 27 of the Act. He finally contended that if the Court is not inclined to accept the contention of the plaintiffs, some time may be granted for payment of the Court fee.
10. The learned Counsel for the respondents contended that the South Andhra Luthern Church, is not a party to the suit. He contended that the said Church is a Society, registered under the Societies Registration Act and not trust, since in a trust there won't be any elections. He further contended that the suit itself is not maintainable in view of Section 23 of the Societies Registration Act. He further contended that the claimants cannot claim the benefit under Section 92 of C.P.C. and the Court below, rightly considering all the aspects has directed the plaintiffs to pay the deficit Court fee and there is no illegality or irregularity. With these submissions, he sought for dismissal of the revisions.
11. In view of the above rival contentions, the issues that arises for consideration are:
1. Whether the reliefs claimed by the plaintiffs fall within the purview of Section 92 of C.P.C. and if so, they can be permitted to pay the Court fee under Section 44 of the Act;
2. Whether the issue of Court fee need not be gone at the threshold and can be decided at the conclusion of the trial; and
3. Whether the impugned order suffers from any illegality or irregularity and warrants interference of this Court under Article 227 of the Constitution of India?
12. The first contention of the Counsel for the petitioners is that the Court below having permitted the plaintiffs to pay the Court fee under Section 44 of the Act, cannot later revoke the permission and issue check slips and unless that permission granted is set aside, the Court cannot direct the plaintiffs to pay the deficit Court fee. In order to meet this contention, it is necessary to look into Sections 11 and 16 of the Act and they are extracted as under for ready reference:
11. Decision as to proper fee:-(1) (a) In every suit the Court shall, before ordering the plaint to be registered decide on the allegation contained in the plaint and on the materials furnished by the plaintiffs the proper fee payable thereon.
(b) The decision of the Court under clause (a), regarding the proper fee payable shall be subject to review, from time to time as occasion requires.
(2) Any defendant may plead that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided before the hearing of the suit as contemplated by Order XVIII in the First Schedule to the Code of Civil Procedure, 1908 (Central Act V of 1908). If the Court decides that the subject-matter of the suit is not properly valued or that the fee paid is not sufficient, the Court shall fix a date before which the subject-matter of the suit shall be valued in accordance with the Court's decision and the deficit fee-shall be paid. If within the time allowed, the subject-matter of the suit is not valued in accordance with the Court's decision or if the deficit fee is not paid, the plaint shall be rejected and the Court shall pass such order as it deems just regarding cost of the suit.
(3)...
(4)...
Section 16. Court-fee examiners:-(1) The High Court may depute Officers to be designed Court-fee Examiners to inspect the records of Subordinate Court with a view to examine the correctness of the valuation, of subject-matter and sufficiency of fee in respect of proceedings in such Courts, and orders, if any, passed by the Courts in relation thereto.
(2) Questions relating to valuation of subject-matter and sufficient of fee in respect of proceedings in a Court raised in reports submitted by such Court-fee Examines shall be heard and decided by such Courts.
13. From the above it is clear that as per sub-clause (b) of sub-section (1) of Section 11 it is clear that the decision of the Court regarding the proper fee payable shall be subject to review, from time to time, as occasion requires and as per subsection (2) any defendant may plead that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient and further all questions arising on such pleas shall be heard and decided before the hearing of the suit as contemplated by Order 18 of C.P.C. and if the deficit fee is not paid within the time allowed, the plaint shall be rejected.
14. Section 16 of the Act empowers the High Court to depute Court Fee examiners to inspect the records of subordinate Court with a view to examine the correctness of the valuation of the subject and sufficiency of fee in respect of the proceedings and questions relating to valuation of subject-matter and sufficiency of fee in respect of proceedings in a Court raised in reports submitted by such Court Fee Examines, shall be heard and decided by such Courts.
15. From the above two sections it is clear that the Court has power to review the Court fee paid and if the deficit Court fee is paid, can direct the parties to make good of the same. Further as noted by the Court below, Hon'ble Judge of this Court noticed that a perusal of the plaint averments showed that S.A.L. Church is a society, registered under the A.P. Societies Registration Act and considering the entire plaint, directed to issue check slips directing the plaintiffs to value the reliefs 1 and 2 under Section 24(d) of the Act and to value the reliefs of permanent injunction separately against defendants 1 to 9 and defendants 10 to 16 respectively under Section 26(c) of the Act. Therefore, in view of Sections 11 and 16 of the Act, the Court below has issued check slips and called for the objections of the plaintiffs.
16. Further it is to be seen that whether there is any violation of the principles of natural justice while revoking the earlier permission granting the plaintiffs to pay Court of Rs. 50/- as per Section 44 of the Act. The circumstances under which the check slips were issued is already noticed above. The plaintiffs have filed their objections and their Counsel advanced arguments. Considering the contentions of both the parties and in the light of the legal position, the Court below overruled the objections of the plaintiffs and upheld the validity of the check slips. Therefore, it cannot be said that there is any violation of the principles of natural justice.
17. From the records it could be seen that there is no specific order permitting the plaintiffs to pay the Court fee of Rs. 50/- under Section 44 of the Act. The plaint was filed in vacation Court and fixed Court fee was paid and subsequently, when the suit was transferred to the regular Court, the office has put up the note with regard to deficit Court fee before the District Judge on administrative side and also as noted above, during the inspection of the Court below by a Hon'ble Judge of this Court, this deficiency was pointed out and therefore, the two check slips were issued calling for the objections and after considering the respective contentions, the deficit Court fee was directed to be paid. Further as per the decision of this Court in Kamanduri Bhanumathi and Ors. v. Guntur Municipal Council and Ors., 1996 (4) ALD 1054, the District Judge on the administration side can also go into the question of defective payment of Court fee and order the plaintiff to pay the deficit Court fee.
18. In view of the above reasons, it can safely be concluded that the Court below has jurisdiction to direct the plaintiffs to pay the deficit Court fee even though it earlier permitted the plaintiff to file the suit with fixed Court fee. The contention of the Counsel for the petitioners that the Court below having granted permission to pay the Court fee cannot revoke the same, has no legs to stand and hence the contention is also hereby rejected.
19. In order to consider whether the relief claimed by the plaintiffs fall under Section 92 of C.P.C., it is necessary to look into Section 92 of the Act. The same is extracted as under for better appreciation:
92. Public Charities:-(1) In the case of any alleged breach of any express or constructive trust created for public purpose of a charitable or religious nature, or whether the direction of the Court is deemed necessary for the administration of any such trust, the Advocate General, or two more persons having an interest in the trust and having obtained the leave of the Court, may institute a suit, whether contentious or not, in the Principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-mater of the trust is situated to obtain a decree:
(a) removing any trustee;
(b) appointing a new trustee;
(c) vesting any property in a trustee (directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property);
(d) directing accounts and inquiries;
(e) declaring what proportion of the trust-property or of the interest therein shall be allotted to any particular object of the trust;
(f) authorizing the whole or any part of the trust property to be let, sold or mortgaged or exchanged;
(g) setting a scheme; or
(h) granting such further or other relief as the nature of the case may require."
20. From the above section it is clear that the said section applies to public charities, where there is any alleged breach of any express or constructive trust created for public purpose. Admittedly, as contended by the Counsel for the respondents, the South Andhra Luthern Church is not a party to the suit and from the reliefs claimed earlier, before withdrawing the first relief, the plaintiffs claimed to declare the plaintiffs group as duly elected governing body of the South Andhra Luthern Church and a declaration that the sale deeds dated 17.1.2004 executed by 3rd and 5th defendants in favour of defendants 10 to 16 as void and further for grant of permanent injunction restraining the defendants 1 to 9 from interfering with the management and administration of South Andhra Luthern Church by the 1st and 3rd plaintiffs and other elected body and further restraining the defendants 10 to 16 and their men and followers restricting them from interfering with the peaceful possession and enjoyment of the schedule properties. Here it is to be seen that the plaintiffs sought two separate injunctions against defendants 1 to 9 and also against defendants 10 to 16 for different reliefs, but combined them under one relief. From the releifs claimed it is dear that they do not fall within the ambit of Section 92 of C.P.C. Further as already noted above, a Hon'ble Judge of this Court while inspection found that the S.A.L. Church is a society registered under Act 6 of 1954. Further in the impugned order it is noted that subsequent to issuance of check slip No. 1, the learned advocate for the plaintiffs filed memo not pressing first relief of declaration to declare plaintiffs group as duly elected governing body of South Andhra Luthern Church. As per the decision reported in G. Koshy v. Chacko Thomas, , the bar under Section 92 shall be attracted even though all the reliefs claimed do not come within the scope of Section 92 and further the plaint as originally filed to be looked into to examine whether it comes within the mischief of Section 92. By subsequent amendment, the suit cannot be made maintainable.
21. With regard to applicability of Section 92 of C.P.C., it is expedient to note the observations of the Apex Court in the decision reported in Pragasji Guru Bhagawandasji v. Ishwarlalbaghi Narsibhai and Ors. (supra) as under:
"A suit under Section 92 of C.P.C. is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character. Such suit can proceed only on the allegation that there is a breach of such trust or that directions from the Court are necessary for the administration thereof, and it must pray for one or other of the reliefs that are specifically mentioned in the section. It is only when these conditions are fulfilled that the suit has got to be brought in conformity with the provisions of Section 92 of C.P.C. ... the reply to this is that is, that in a suit framed under Section 92 C.P.C., the only relief which the plaintiff can claim and the Court can grant are those enumerated specifically in the different clauses of the section. A relief prayed for a declaration that the properties in suit are trust properties does not come under any of these clauses".
22. Therefore, from all these facts and circumstances and after careful perusal of Section 92 of C.P.C. it is clear the suit does not fall under the ambit of Section 92 of C.P.C.
23. From the material on record it is clear that whether the suit falls within the ambit of Section 92 of C.P.C. or not, no evidence is required and it also does not encroach upon any other issue. Further as per sub-section (2) of Section 11 of the Act, all questions arising on the question of deficit Court fee, shall be heard and decided before the hearing of the suit as contemplated by Order 18 of C.P.C.
24. In view of the above, the contention of the Counsel for the petitioners that the aspect of Court fee can be decided subsequently during the conclusion of trial or at the time of pronouncement of judgment, is hereby rejected and held that in the facts and circumstances of the case, before proceeding further, the plaintiffs shall pay the Court fee as valued by the Court or else they have to face the consequences as per law.
25. As already held the suit does not come under the purview of Section 92 of C.P.C. An Hon'ble Judge of this Court noticing that the S.A.L. Church is a society registered under the A.P. Societies Registration Act, directed for issue of check for payment of the deficit Court fee. Therefore, the contention of the Counsel for the petitioner that the Court fee can be levied under Section 27 of the Act merits only for rejection.
26. As per the decision of this Court in Hasmukh Champaklal Mehta v. Addl. Chief Judge, Hyderabad, 1996 (1) ALD 519, the Court fees is neither tax nor duty and it must have relation to administration of justice. In the decision reported in Secretary, Government of Madras v. P.R. Sriramulu, AIR 1996 SC 767, the Apex Court at paragraphs 9 and 10 held that the co-relationship between services rendered (cost of administration of justice) and the levy of Court fees (fees collected) must exist though not of arithmetical exactitude. It was further held that, since about past two decades the levy of Court fees on higher scales would seem to find its justification, not in any purpose related to the sound administration of justice, but in the need of the State Government for revenue as a means for recompense. In the decision reported in Kondaiah v. Ramanareddy, , it was held that the Court fees Act is a fiscal legislation, which must be constructed in favour of the subject.
27. In view of the above reasoning, all the issues framed are answered in the negative.
28. From the above it is clear that the Court below considering all the aspect has rightly directed the plaintiffs to pay the deficit Court and I do not find any illegality or irregularity in the impugned order warranting the interference of this Court under Article 227 of the Constitution of India. I do not find any merit in CRP No. 2343/2005 and the same is liable to be dismissed.
29. The learned Counsel for the petitioners requested the Court to grant some time to pay the deficit Court.
30. Considering the facts and circumstances of the case and in the interest of justice, exercising the jurisdiction under Article 227 of the Constitution of India, the plaintiffs are granted a period of eight weeks time from today for payment of the deficit Court fee as ordered by the Court below and in case of default, the suit stands rejected.
31. However, in view of the foregoing reasons, the revision petition in CRP No. 2434/2005 is dismissed.
32. In view of the permission granted to the plaintiffs to pay the Court fee, the revision petitions in CRP Nos. 2199 and 4109 of 2005 are disposed of accordingly.
33. In the circumstances of the case, there shall be no order as to costs.