Madras High Court
Darsana Bai(Died) vs C.Saroja on 25 July, 2013
Author: K.Ravichandrabaabu
Bench: K.Ravichandrabaabu
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25. 07.2013 CORAM: THE HON'BLE MR.JUSTICE K.RAVICHANDRABAABU CRP.NPD.No.1974 of 2003 1.Darsana Bai(died) 2.Shanbagavalli 3.Ranjani ...Petitioners Vs. 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. . Civil Revision Petition 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. For Petitioners: Mr.S.Subbiah For Respondents 1 to 5,8,10 to 12: Mr.R.Selvakumar :Mr.S.Pattabiraman(Assisted the Court) Government Pleader(CS) ----- O R D E R
Petitioners are the defendants in O.S.No.7273 of 1996 on the file of City Civil Court, Chennai and appellants in A.S.No.136 of 2001 on the file of VII Additional City Civil Court, Madras. They are aggrieved against the order passed by the appellate Court in Check slipNo.66/XXVI/C.C.Ct. Dated 10.10.2003 whereby the petitioners were directed to pay required deficit court fee pointed out in the check slip.
2. Following are the relevant facts for consideration in this Civil Revision Petition:
The respondents herein as the plaintiffs filed the said suit for recovery of possession and for mesne profits. Originally, the suit was filed on 04.02.1991 on the Original Side of the High Court, Madras by valuing the suit at Rs.1,90,000/-. Towards the relief of recovery of possession, a sum of Rs.5,025/- was paid and towards the relief of mesne profits Rs.2,400/- was paid as Court fee. Thus in total Rs.7,425/- was paid as Court fee before this Court. Thereafter the suit was transferred to City Civil Court on 07.03.1996 in pursuant to the enhancement of pecuniary Jurisdiction of the City Civl Court as per Tamil Nadu Amending Act No.28 of 1995. Thus, the suit transferred to I Assistant Judge, City Civil Court, Madras was re-numbered as O.S.No.7273 of 1996. On 31.01.2000, the suit was decreed by the I Assistant Judge, City Civil Court,Madras . The petitioners herein, as defendants 1 to 3 preferred an appeal before the VII Assistant Judge, City Civil Court, Chennai by valuing the same at Rs.4,24,000/- by calculating the mesne profits (from 04.02.1991 to the date of decree dated 31.10.2000) valued at Rs.2,000/- per month. Thus, a total sum of Rs.13,084/- was paid as Court fee which represents towards the relief of recovery of possession and mesne profits. The petitioners were called upon by the appellate court to pay the deficit court fee of Rs.18,716.50 by valuing the appeal under the Tamil Nadu Court Fees and Suits Valuation Act, 1955. The petitioners disputed such liability and consequently, the lower appellate court passed an order thereby directing the petitioners to pay the required deficit court fee. The Court below pointed out that the appellants/petitioners are not entitled to pay the Court fee as per High Court Original Side Fees Rules. It has also taken into consideration of Explanation (1) to Section 52 of the Act to hold that the fee that would be payable on the relief in the Court of first instance, as the fee payable before the appellate court, since the City Civil Court is the Court of first instance. It was thus observed that the appellants shall have to pay the court fee advalorem under Schedule I of Article 1 of the TNCFSV Act on the appeal value.
3. Aggrieved against the said order, the present Civil Revision Petition is filed by the defendants/applleants.
4. Mr.S.Subbiah, learned counsel appearing for the petitioners submitted as follows:
The reliance placed by the lower appellate court in the check slip on the decision made in Ponnusamy and others Vs.The Tamil Nadu State Wakf Board through its Secretary and reported in 1981 I MLJ 252 is misconceived, as the facts of that case are in a different footing.
5. Explanation (1) to Section 52 of the said Act alone is applicable to the present case. On the date when the suit was filed, only the High Court got the jurisdiction and the suit came to be transferred thereafter pursuant to enhancement of pecuniary jurisdiction of the City Civil Court on 07.03.1996. The Court of first instance is not the City Civil Court, in this case, as found by the Court below. It is only the High Court, where the suit was originally filed, is the court of first instance. Under Section 14 of the Chennai City Civil Court, Act 1892, allowance for fees paid in City Civil Court is granted, if the suit is transferred to the High Court. But, no vice versa provision is given, if it is transferred from High Court to City Civil Court for collecting additional Court fees. In other words, in the absence of any specific provision under the Tamil Nadu Court Fees and Suit Valuation Act, the order of the Court below directing payment of additional court fees is wholly without jurisdiction. Right of appeal cannot be impaired and no onerous condition can be imposed, in the absence of specific provision available under the Act, seeking for payment of additional court fee. It is not a matter of procedure. "Court of first instance" is referable only in respect of proceeding of execution of the decree, as contemplated under Section 37 of the Code of Civil Procedure. Initiating a lis is different from executing a decree. If transfer of suit is made by virtue of legislative amendment, equally, necessary provision should have been made under the statute for collection of additional court fees as well. In the absence of such provision, no collection of additional court fees, is warranted. The appellants have paid the court fee as per Appendix I-A of Order 2 Rule 1 of the High Court Fees Rules, 1956.
In support of his submission, learned counsel for the petitioners relied on the following decisions:
(1) 1958 I MLJ 263 (S.R.Narayana Ayyar Vs. Mavalathara Veerankutti & Others) (2) AIR 1960 SC 980 (State of Bombay Vs.Supreme General Films Exchange Ltd.,) (3) 1956 I MLJ 63 (Ganga Naicken and another Vs.A.Sundaram Aiyar)
6. Learned counsel also fairly placed a recent decision of the Hon'ble Division Bench of this Court in S.S.Durai Pandian & another Vs.S.S.Pandian reported in 2012-4-L.W.89 wherein a contrary view has been taken. Learned counsel however submitted that the said decision of the Hon'ble Division Bench was made without reference to the earlier decision of another Division Bench in S.R.Narayana Ayyar's case as well as the decision of the Apex Court in State of Bombay's case. Therefore, the learned counsel submitted that when there are two decisions by co-equivalent bench, contra to each other, this Court can refer the matter to a larger Bench.
7. Per contra, learned counsel appearing for respondents 1 to 5,8, 10 to 12 submitted as follows:
With regard to the definition of Court of first instance, recent decision of the Division Bench in S.S.Durai Pandian's case squarely answered the issue. The Court which passes the judgment and decree is the Court of first instance and therefore when admittedly the City Civil Court has passed the Judgment and decree in the original suit, petitioners are bound to pay only as per Section 52 of the Act wherein it is contemplated that the fee payable in an appeal shall be the same as the fee that would be payable on the relief in the court of first instance.
8. Learned Government Pleader(CS) who was directed to assist the Court, has also relied on the recent decision of the Hon'ble Division Bench rendered in S.S.Durai Pandian's case and supported the order of the Court below.
9. Heard the counsels appearing on either side and perused the materials placed before this Court.
10. The point for consideration in this Civil Revision Petition is as to whether the Court of "first instance" referred to under Section 52 of the said Act is the High Court where the suit was originally filed or the City Civil Court which passed the Judgment and decree, after transfer of the said suit, in pursuant to the enhancement of the pecuniary jurisdiction. Before considering the said question, let me extract the relevant rules for proper appreciation of the case in hand. Order II Rule (1-A) of the High Court Fees Rules, 1956 reads as follows:
"(1-A) Notwithstanding anything contained in sub-rule(1) of rule 1, 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 I-A herein."
As per the above quoted rule, the Court fee payable in respect of suits and proceeding instituted on or after 11th September, 1968, shall be in accordance with the scale of fees set out in Appendix I-A of the said rules. A perusal of Appendix I-A refers the particulars of the case and valuation thereon at Column 2 and proper fee payable thereon at Column 3.
11. Section 52 of the TNCFSV Act with explanation(1) reads 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."
12. A bare perusal of the above provision shows that when an appeal is preferred, the court fee payable shall be the same as the fee that would be payable in the Court of first instance, on the subject-matter of the appeal. Explanation(1) of Section 52 of the Act further contemplates that the fee is one and the same for the plaintiff as well as defendant. However, it is stated that fee payable in the court of first instance shall be the same as the fee payable in the appeal. Thus, the required consideration in this case is as to which court is the court of first instance, especially under the circumstances that the suit came to be filed originally before the High Court by paying the court fee under the High Court Fees Rules, 1956 and thereafter it got transferred to City Civil Court where it was decreed. At this juncture, it is relevant to be noted that after the transfer of suit to the City Civil Court, the plaintiff was not called upon to pay the additional court fees before the disposal of the suit. Equally, there was no decree passed by the City Civil Court directing the plaintiff to pay the additional court fee as well. Thus, the court fee paid before the High Court was taken as the court fee payable in the said suit and the same was proceeded to be heard and decided based on such payment of court fee alone.
13. Before discussing the matter further, let me straightway refer to a decision of the Hon'ble Division Bench of this Court reported in 1958 1 MLJ 263(S.R.Narayana Ayyar Vs. Mavalathara Veerankutti & Others).
The facts of that case are as follows:
C.S.Nos.224 of 1950 along with some other suits pending on the file of this High Court were transferred to City Civil Court, in pursuant to Amendment Act (X of 1995) enhancing the pecuniary jurisdiction of the City Civil Court. After such transfer, the question arose as to whether the additional court fee should be paid on the suit so transferred. After hearing the parties, learned Principal City Civil Judge, passed an order holding that the plaintiff should pay additional court fee as per law. The said order was challenged before this Court by filing three Civil Revision Petitions. After considering the various aspects of the matter as well as relevant provisions of law, the Hon'ble Division Bench has observed as follows:
"....
"These are suits which have been properly instituted on the Original Side but have later been transferred to the City Civil Court for trial, and the transfer has been under Section 8 of Madras Act, X of 1955, But the learned Government Pleader urged that section 16, proviso (3) of Central Act, VII of 1892, would govern the present case. If that contention is to prevail, we have to see whether the transfer of these suits has taken place under the powers exercised by the High Court under proviso (2) to Section 16 of Act VII of 1892. Section 16, proviso (2),is in the following terms:
"Nothing in this Act contained shall affect the Original Civil Jurisdiction of the High Court provided that (1)........................................(2) in any suit or other proceeding pending at any time in the High Court, any Judge of such Court may, at any stage thereof make an order transferring the same to the City Civil Court if in his opinion such suit or proceeding is within the jurisdiction of that Court and should be tried therein"
If an order is made under this proviso, then the 3rd proviso to section 16 would come into operation. Section 16, proviso (3), is to the effect that "Provided that (3) in any suit or other proceeding so transferred the Court-Fees Act,1870, shall apply credit being given for any fees levied in the High Court".
It is to be observed that a specific provision has been made for the recovery of additional Court-fees in case a transfer is effected by an order of the Judge of the High Court under section 16, proviso(2). As already stated the present suits have not been transferred by any order of the High Court exercising the power provided in section 16, proviso (2) of Act VII of 1892, in which case alone proviso(3) to section 16 will come into operation. In the present case the suits in question have been transferred by virtue of section 8 of Act X of 1955 which vests no discretion or option in any Judge of the High Court to make a transfer or not after Act X of 1955 has come into force. On the other hand the statutory provision contained in section 8 of the said Act X of 1955 effects an automatic transfer of all suits pending before the High Court which come within the purview of the said Act X of 1955.
......
If the transfer of the suit from the Original Side of the High Court to the City Civil Court is not effected under the 1st or the 2nd proviso to section 16 of Act VII of 1892 and if the 3rd proviso to that section does not apply to the transfer in question then the only other section under which a claim for additional Court-fee could be made is section 6 of Court Fees Act of 1870. A close scrutiny of the terms of this section does not convince us that a transfer of suits from the Original Side of the High Court to the City Civil Court under Section 8 of Act X of 1955 could be brought within the scope of the word 'received' occuring in that section. No doubt, when a transfer is made from one Court to another, there is the receiving Court, and there is also the Court that sends the plaint or the suit records to the other Court; but the question is whether the term 'received' used in this section could be strained to such an extent as to include within its meaning plaints and suit records that are automatically and statutorily transferred from one Court to another without the intervention of any act on the part of any Court or the parties concerned. We doubt whether such a situation could have been contemplated by the Legislature. If it was, however, the intention of the Legislature when it enacted Act X, 1955 that on such statutory transfer also additional Court-fee should be levied, then nothing could have prevented the Legislature to provide for such levy of additional Court-fee when a statutory transfer of suits was being effected, it being remembered such a provision was actually enacted, under proviso (3) to section 16 of Act VII of 1892.When 'the Legislature did not choose to provide for such a levy of additional Court-fee, when such a provision was omitted to be made and when it is not possible to enlarge the scope of the word 'received', used in section 6 of the Court-fees Act of 1870, the application of which is saved by section 87(2) of Act XIV of 1955, and when the levy of additional Court fee is a fiscal act, the benefit of the lack of a provision for the levy of such a fee, cannot be claimed by the State. Obviously, the benefit must go to the party in the absence of any specific provision for such a levy in consequence of the transfers of suits effected under the operation of section 8 of the Act X of 1955.
In our opinion, therefore, the order of the learned City Civil Judge directing the levy of additional Court-fee on the plaints is not sustainable".
14. A perusal of the above said decision would show that the issue involved in this case is almost similar, to that of the one raised in that case. The Hon'ble Division Bench has observed that the suits were not transferred by the High Court exercising the power provided under Section 16, proviso (2) of the Act VIII of 1892 and on the other hand, such transfer was made by virtue of Section 8 of Act X of 1955 which vests no discretion or option in any Judge of the High Court to make a transfer or not after the amendment has come into force. Thus, it is an automatic transfer of all suits, taking note of the enhancement of pecuniary jurisdiction, conferred by the Amendment Act. It was further observed that if the intention was to collect additional court fee, after such transfer, then nothing could have prevented the Legislature to provide for such additional Court fee, by making such provision. Therefore, the Hon'ble Division Bench came to the conclusion that in the absence of any provision and when the Legislature did not choose to provide for such levy of additional Court fee, such benefit of the lack of provision for the levy of such fee cannot be claimed by the State. On the other hand, the benefit must go to the party in the absence of any specific provision. Thus, the Hon'ble Division Bench has opined that the order of the City Civil Court directing payment of additional court fee was not sustainable.
15. The learned counsel for the petitioner further relied on a Judgment of the Apex Court in State of Bombay's case to contend that right of appeal cannot be impaired or any onerous condition can be imposed on a party when it is not a matter of procedure. The relevant paragraph of the said decision is extracted here under:
"..... The question was: on the facts stated above, what court fees were payable on the memorandum of appeal. Relying on the decision of this Court in Hoosein Kasam Dada (India) Ltd., V.State of Madhya Pradesh and certain other decisions to which we shall presently refer, the learned Chief Justice held that a right of appeal is a substantive right which vests in a litigant at the date of the filing of the suit, and cannot be taken away unless the legislature expressly or by necessary intendment says so; furthermore, an appeal is a continuation of the suit, and it is not merely that a right of appeal cannot be taken away by a procedural enactment which is not made retrospective, but the right cannot be impaired or imperiled nor can new conditions be attached to the filing of the appeal; nor can a condition already existing be made more onerous or more stringent so as to affect the right of appeal arising out of a suit instituted prior to the enactment."
".......
....By requiring such deposit as a condition precedent to the admission of the appeal, a new restriction has been put on the right of appeal, the admission of which is now hedged in with a condition. There can be no doubt that the right of appeal has been affected by the new provision and in the absence of an express enactment this amendment cannot apply to proceedings pending at the date when the new amendment came into force. It is true that the appeal was filed after the Act came into force, but that circumstance is immaterial- for the date to be looked into for this purpose is the date of the original proceeding which eventually culminated in the appeal". This decision was approved by this Court both in Hossein Kasam Dada and Garikappati Veeraya.
12. It is thus clear that in a long line of decisions approved by this Court and at least in one given by this Court, it has been held that an impairment of the right of appeal by putting a new restriction thereon or imposing a more onerous condition is not a matter of procedure only; it impairs or imperils a substantive right and an enactment which does so is not retrospective unless it says so expressly or by necessary intendment."
16. He further relied on a decision of this Court in Ganga Naicken's case to contend that the litigant must have a reasonable estimation as to whether he has to pay any additional burden.
The relevant paragraph is extracted here under:
"In the present case, the copy application for a judgment and decree in C.R.P.No.910 of 1954 is an application which arises from a revision petition instituted before the Act and therefore has to be governed by the earlier Act. Being a taxing Statute ordinarily it will have no retrospective effect; but since the earlier Act is repealed, the necessity for making a provision that it shall not have retrospective operation was felt and clause(2) of section 87 was enacted. A statute which imposes a tax has to be construed strictly and in case of reasonable doubt, the construction that is beneficial to the subject has always to be adopted and a party who has instituted a suit under the Court-fees Act would naturally have presumed that all the proceedings in the suit or any document that may be obtained and which arises in the suit would be governed by the provisions of the Court-fees Act at the time when the suit was instituted. The litigant must have been under the impression that so far as a suit or proceeding which he has commenced is concerned, he will be liable to pay only the Court-fee that is prescribed, of which he might have had a reasonable estimate, and any legislation, which would impose an additional burden in respect of a suit which is already instituted, should make it clear that such additional burden would be imposed. In the absence of any specific words restricting the exemption from the present Act to particular proceedings in a suit, whatever is related to the suit must be deemed to have been exempted. If the intention of the Legislature were that only such a proceedings as would initiate or commence any action should be exempted, there is nothing preventing section 87(2) prescribing that the plaints and memorandum of appeals or O.Ps. Will be liable to the Court fee payable under the old Act and all other proceedings though in any manner connected with any suit or appeal would be governed by the new Act. Section 87(2) does not refer to the fees payable on particular proceedings but refers to the application of the Act of 1870 as a whole by the use of the word 'governed'. That means that everything connected with all suits and proceedings instituted prior to the Act and all proceedings by way of appeal or revision and all proceedings in any manner arising from a suit or proceeding so instituted, shall be governed or regulated only by the provisions of the earlier Act. As pointed out in Maxwell on Interpretation of Statutes, 10th edition at page 221:
"In general, when the law is altered during the pendency of an action the rights of the parties are decided according to the law as it existed when the action was begun unless the new statute shows a clear intention to vary such rights"
17. Going by these decisions, more particularly the decision made in S.R.Narayana Ayyar's case, it is clear that the Court below is not justified in directing payment of additional court fee in the absence of any provision of law made to that effect under TNCFSV Act. Thus, I would have straight-away followed the said decision and allowed this revision, but for the recent decision of the Hon'ble Division Bench made in S.S.Durai Pandian's case. However, the learned counsel appearing for the petitioners submitted further that the said decision though made by the Division Bench was without reference to the earlier decision made in S.R.Narayana Ayyar's case as well the decision of the Apex Court in State of Bombay's case.
18. A perusal of the facts of the said case reported in S.S.Durai Pandian's case would show that a suit filed on the Original Side of the High Court on 15.12.2006, was transferred to the Additional District and Sessions Court,Chennai and renumbered as O.S.No.9953 of 2010. The said suit was disposed of on 10.05.2011. Further appeal was preferred before the High Court in A.S.(SR.)No.71262 of 2011. Even before numbering the said appeal, a question was raised as to whether the court fee paid on the memorandum of appeal in that case was proper. In answering the said question, the Hon'ble Division Bench has observed at Paragraph 8 as follows:
"8.A reading of Section 52 of the Act shows that 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. The fee that would be payable in the court of first instance would refer to the court which passed the judgment and decree in the suit. In this case, admittedly the judgment and decree has been passed in the suit by the learned Additional District and Sessions Judge, Fast Track Court No.V, Chennai and not by a learned Single Judge of this Court on the Original Side. Though the suit was instituted on the Original Side of the High Court originally, since the suit has been disposed of only by the learned Additional District and Session Judge, Fast Track Court No.V, Chennai it cannot be said that the court of first instance is the High Court. The fee that would be payable would indicate that if the suit had been originally instituted before the City Civil Court then ad-valorem fee would have to be paid and only because of the Government Order issued, the additional ad-valorem court-fee payable was not insisted upon. Simply because the appellant was not directed to pay additional court fee before the City Civil Court,that does not mean that on the Memorandum of Grounds of Appeal filed before this Court, he can pay the same fee that was paid on the plaint before the Original Side of this Court. Therefore, the Registry is right in insisting that the Court-fee should be payable as per Section 52 of the Act. Therefore we are unable to countenance the contentions of the learned counsel for the appellants. Hence, the Court fee paid on the memorandum of grounds of appeal is not correct and it is insufficient."
19. Thus, from the above decision made by the Hon'ble Division Bench, it could be seen that the Court of first instance referred to under Section 52 of the said Act was held to be the Court which passed the Judgment and decree in the suit. Thus, if we apply the above said decision to the present facts and circumstances of the case, only the City Civil Court,Chennai which passed the Judgment and decree, is the Court of first instance and consequently as per Section 52 of the said Act, the Court fee payable in the appeal is the court fee that would be payable in the Court of first instance. On the other hand, if the decision of the Hon'ble Division Bench in S.R.Narayana Ayyar's case, is applied to the facts and circumstances of the present case, then, the appellant need not pay any additional court fee, in the absence of any requirement for making such additional payment under the statute. Further, it is to be noted that the plaintiff in this case has not been called upon to pay additional court fee, when his suit was transferred from this Court to City Civil Court. He was in fact allowed to pursue the matter further without insisting upon the payment of additional court fee. Further, Explanation (i) to Section 52 of the Act says that the fee payable in the appeal should be the same both for plaintiff and defendant. Under these circumstances, whether the direction of the Court in asking to pay the additional court fee from the defendant alone, is maintainable, is a further question that needs to be answered in this Case. Unfortunately these questions cannot be answered either in the affirmative or negative in view of the two contra decisions rendered by two Hon'ble Division Bench of this Court, as referred supra. No doubt, before the Hon'ble Division Bench which rendered the recent decision in S.S.Durai Pandian's case, the earlier decisions made in S.R.Narayana Ayyar's case as well as by the Hon'ble Apex Court in State of Bombay's case were not placed. But at the same time, it is the categorical finding of the Hon'ble Division Bench that the Court of first instance referred to under Section 52 of the Act means the Court which passes the judgment and decree. Since there are two contra decisions of two Division Bench of this Court on the same issue, I am of the view that the matter requires to be referred to a Larger Bench for considering the issue and answering the following question:
"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(4) LW 89) DB?
OR 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 Suit Valuation Act, 1955, as held in S.R.Narayana Ayyar's case (1958 (1) MLJ 263) DB?.
20. Accordingly, the Registry is directed to place this Matter before My Lord The Acting Chief Justice for posing it before a larger Bench to answer the reference.
25 -07-2013 Index:Yes Internet:Yes VJY To VII Additional Judge,City Civil Court,Chennai K.RAVICHANDRABAABU,J.
VJY
Pre-Delivery Order in
CRP.NPD.No.1974 of 2003
dt. 25.07.2013