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1983 DIGILAW 38 (KER)

KUMARAN v. TALUK LAND BOARD

1983-02-09

K.K.NARENDRAN

body1983
Judgment :- 1. The point that arises for consideration is whether a Civil Revision can be treated as in defects and dismissed for not curing the defects simply for the reason that the petitioner does not pay communication bata for an order on an interlocutory application making a stay absolute and that too in the presence of the counsel for the respondents. The petitioner challenged the order of a Taluk Land Board in a ceiling case in the Civil Revision before this Court. Along with the revision, the petitioner filed an application for stay on which interim stay for 10 days and notice was ordered by the Court. The petitioner remitted process fee and the stay order was communicated to the respondents. Notice was served on the respondents and in the presence of the counsel for the respondents the stay was subsequently made absolute. The petitioner did not deposit communication bata for the order making the stay absolute and, for that reason, the revision was treated as defective and was posted for curing defects. 2. The learned counsel for the petitioner contended that as the stay order was made absolute in the presence of the counsel for the respondents, no communication of the order to the respondents was necessary and hence the petitioner was not prepared to deposit the communication bata. It was further contended that even if communication bata has to be deposited, for not depositing the same, the Civil Revision cannot be dismissed for defects. Reference was made to R.60,61, 63 and 67 of the Rules of the High Court of Kerala, 1971. The learned Government Pleader appearing in the case referred to Appendix VI to the Kerala Civil Rules of Practice, Item 8, which insists that process fees will have to be paid for communication of orders of injunction or other orders. According to the Government Pleader, the revision petitioner is is law bound to pay process fee as insisted by the rules issued by the High Court under the Kerala Court-Fees and Suits Valuation Act, 1959 and contained in the above Appendix VI. 3. R.60, 61, 63 and 67 of the Rules of the High Court of Kerala, 1971 read: "60. Failure to pay process. When the fees required for service of notice on the opposite party have not been paid within the time prescribed the case shall be posted for orders of the Court." "61. 3. R.60, 61, 63 and 67 of the Rules of the High Court of Kerala, 1971 read: "60. Failure to pay process. When the fees required for service of notice on the opposite party have not been paid within the time prescribed the case shall be posted for orders of the Court." "61. Notice in revision petitions. On an application of an interlocutory character presented in any Revision Petition, if an interim order is passed with a direction to issue notice to the respondents in the application, notice shall be issued simultaneously fixing the same bearing date both in the application and in the Revision Petition on payment of a single process fee in respect of respondents common to both the proceedings." "63. Time for payment of process. Unless otherwise ordered by the Court or provided for otherwise by these rules, where notice has been ordered, the party shall pay the prescribed fees for service of notice within three days after the date of the order. If an interim order has been made upon the application, it shall not be issued until the prescribed fees have been paid." "67. Procedure in case of default. If on the day fixed for hearing it appears that notice has not been served owing to the default of the applicant, the Court may order fresh notice to be issued or may dismiss the application." It is clear from the above rules that the petitioner in a revision is bound to pay fees required for service of notice on the opposite party and that has to be paid within 3 days after the date of the order of notice. If that is not paid and hence notice is not served on the respondents due to the default of the petitioner, the revision is liable to be dismissed. In this case, the petitioner deposited process-fee on the civil revision and on the interlocutory application granting interim stay. Notice was served on the respondents and they appeared through counsel and it was thereafter that the stay was made absolute in the presence of the counsel for the respondents. In such a case, if process fee as insisted by item 8 of Appendix VI to the Kerala Civil Rules of Practice (communication bata) is not paid, at the most, the order making the stay absolute will not be communicated to the respondents by the court. In such a case, if process fee as insisted by item 8 of Appendix VI to the Kerala Civil Rules of Practice (communication bata) is not paid, at the most, the order making the stay absolute will not be communicated to the respondents by the court. As the notice has already been served on the respondents both in the revision and in the interlocutory application, no question of treating the revision as defective and dismissing it for default under R.67 of the Rules of the High Court of Kerala arises as the revision can be treated as in defects and dismissed for not curing the defects only if notice has not been served on the respondent. Not only that, in a revision, communication bata as insisted by item 8 of Appendix VI to the Kerala Civil Rules of Practice cannot be insisted for communicating orders on interlocutory applications. This is for the reason that the rules contained in Appendix VI to the Kerala Civil Rules of Practice have been framed by the High Court in exercise of the powers under S.83A of the Kerala Court-Fees and Suits Valuation Act, 1959 and as per the above provision the High Court has power only to prescribe fees payable for serving and executing processes issued by the High Court in its appellate jurisdiction and by the Civil and Criminal Courts subordinate thereto. So, it goes without saying that the Civil Revision cannot be treated as in defects for the mere reason that communication bata was not paid by the revision petitioner for communicating an order making a stay absolute in an interlocutory application filed in the revision. 4. Hence I hold that the Civil Revision is not in defects and cannot be dismissed for not curing the defects for non-payment of communication bata for the order in question.