Research › Browse › Judgment

Kerala High Court · body

1970 DIGILAW 105 (KER)

RAJAN ALIAS DEVARAJAN v. ISMAIL MUHAMMED KARIM SAIT

1970-06-15

M.MADHAVAN NAIR, T.S.KRISHNAMOORTHY IYER

body1970
Judgment :- 1. The petition is filed under S.24 and 151 C.P.C., to withdraw to the file of this Court A. S.Nos. 305, 306. 307 and 308 of 1969 on the file of the District Court, Trichur, for hearing along with A. S. No. 6 of 1970 pending in this Court. The suits giving rise to these appeals were tried and disposed of by a common judgment by the trial court. The Taxing Officer has taken the view that the application being in the nature of an original petition has to be taxed under Schedule II, Art.11 (I) (iii) of the Kerala Court-Fees and Suits Valuation Act, 1960. 2. The submission on behalf of the petitioners' counsel is that Art.11 (I) of Schedule II of the Kerala Court Fees Act applies to the case and court fee of Rs. 2/- is sufficient. The Taxing Officer has relied on the observation of Raman Nayar, J., (as he then was) in C. M. P. No. 4943 of 1963 to the following effect: "An application under S.24 of the Code is an original petition as recognized by R.48 of the Madras and R.58 of the T. C. Civil Rules of Practice. Therefore it falls within clause (1) of Art.11 of Schedule II of Kerala Act 10 of 1960, not within the residuary clause, clause (t)." Rule 58 of the T.C. Civil Rules of Practice reads that "an application for the transfer of a suit, appeal or other proceeding from one Court to another shall be made by original petition entitled in the matter of the pending suit, appeal or other proceeding as in Form No. 18." R.48 of the Madras Civil Rules of Practice reads: "48. (1) Application for transfer.- An application for the transfer of a suit from one court to another shall be made by original petition entitled in the matter of the pending suit, as in Form No. 17. Notice of the application, in Form No. 18 shall be issued and served on the other parties to the suit: provided that if, under S.24 of the Code a District Court transfers a suit of its own motion, without giving notice, it shall record in writing its reasons for dispensing with notice. Notice of the application, in Form No. 18 shall be issued and served on the other parties to the suit: provided that if, under S.24 of the Code a District Court transfers a suit of its own motion, without giving notice, it shall record in writing its reasons for dispensing with notice. (3) " The application before us is an interlocutory application filed in A. S. No. 6 of 1970 for withdrawal of the appeals to the file of this Court for being heard along with the appeal pending here. It is not an application for transfer as stated in R.58 of the T-C. Civil Rules of Practice or the relevant Rule in the Madras Civil Rules of Practice. In such cases, we have no hesitation to hold that the relevant Article applicable is the residuary Article in clause (t) of Art.11 of Schedule II. The application is one arising in the appeal in which it has been filed. The petitioners have paid only Rs. 2/- as court-fee for the application though the prayer is for transfer of four appeals from the District Court. They have therefore to pay a total court-fee of Rs. 8/- for the application. Strictly speaking, they have to file separate application for withdrawal of each of the appeals pending in the District Court. They have consolidated the prayers in one application. They have therefore to pay the necessary court-fee for the several prayers with reference to the number of appeals to be withdrawn to the file of this Court. The court-fee reference is answered is the above manner.