D. S. DEVASHETTY v. PARVATHI — 1987 DIGILAW 226 (KAR)

KULKARNI, J. ,, J. ( 1 ) BOTH the advocates submitted that the revision may be heard finally on merits itself. Accordingly arguments on the final merits of the revision are heard and it is disposed of. ( 2 ) THIS is a revision by defendant No. 1-appellant against the order dated 25-8-86 passed by the Civil Judge, kodagu, Madikeri'in unnumbered R. A. of 1985, directing the appellant to pay the court-fee on the amount that had fallen due from the date of the suit till the drawing up of the decree. ( 3 ) RESPONDENT No. 1 is the wife of the appellant. Respondents 2 to 4 are the children of appellant and respondent no. 1. Respondents filed a suit claiming maintenance at the rate of Rs. 500/- per month from the date of the suit. The respondents valued the suit under S. 22 (a) of the Court-Fees Act. Thus, for the purposes of court-fee, they valued the suit at Rs. 6000/- and paid the court-fee thereon. ( 4 ) THE trial court awarded maintenance at Rs. 500/- per month to the respondents from the date of suit onwards. The defendant-appellant being aggrieved by the said award of maintenance from the date of suit, prefered the appeal. The appellant valued the claim at Rs. 6000/- for the purposes of court-fee under S. 22a read with S. 49 of the Court Fees act. ( 5 ) S. 22 (a) of the Court-Fees Act reads:"in the suits hereinafter mentioned fee shall be computed as follows : (a) in a suit for maintenance, on the amount clairped to be payable for one year;"thus, learned counsel Shivaprakash submitted that when the claim in the plaint itself had been valued on the basis of maintenance payable for one year, the court-fee payable in the appeal also would be the same as the one paid on the plaint at the time of filing the plaint. Even in the suits filed for maintenance, if the plaintiff wants arrears of maintenance from a particular date prior to the date of the suit on the basis that the right to claim maintenance arose from a date prior to the suit, the arrears claimed will have to be valued separately, even in a suit for maintenance. The court-fee will have to be paid on the amount of arrears as if it is a money claim. The court-fee will have to be paid on the amount of arrears as if it is a money claim. That cannot be tagged on with a claim for future maintenance from the date of the suit. ( 6 ) S. 49 of the Court-Fees Act reads:"save as provided in section 48, 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. "sri Shivaprakash submitted that if S. 49 is read along with S. 22a, the appellant shall have to pay court- fee only on the maintenance for one year. This argument advanced by learned counsel for appellant ignores the phraseology, 'on the subject matter of the appeal. ' He relied on Chief Inspector of Stamps v. Brij Raj Singh, AIR 1950, Allahabad 55. In the said U. P. Act, the fee payable in a suit for maintenance was on the amount of maintenance claimed for one year.-Suit* is defined by S. 2 (iv) of the U. P. Act as 'suit includes appeal also. ' There is no separate provision in the U. P. Act for the calculation of the court-fee in an appeal filed against the decree passed for maintenance. In view of the definition in the U. P. Act that suit includes appeal also. Justice Seth of the Allahabad high Court held that even in an appeal the fee payable in a case for maintenance would be the fee payable on the maintenance claimed for one year only. Therefore, the provisions in the U. P. Act are entirely different from the provisions contained in the Karnataka Court-Fees act. ( 7 ) THE provisions of the Karnataka court-Fees Act are in par! materia with the provisions contained in Andhra Pradesh Court Fees Act and Suits Valuation act, Sec. 22 of the Andhra Pradesh court-Fees and Suits Valuation Act has been reproduced in para 6 of the decision in G. Linga Reddy v. G. Rukma Reddy, andhra Weekly Reporter, 1975 (2) 321. It reads :"it is argued by Mr. Subbarayudu that as per S. 22 of the A. P. Court- fees and Suifs Valuation Act, 1956, suits for maintenance and annuities have to be valued in the following manner: (a) In a suit for maintenance on the amount claimed to be payable for one year. It reads :"it is argued by Mr. Subbarayudu that as per S. 22 of the A. P. Court- fees and Suifs Valuation Act, 1956, suits for maintenance and annuities have to be valued in the following manner: (a) In a suit for maintenance on the amount claimed to be payable for one year. (b) In a suit for enhancement or reduction of maintenance, on the amount by which the annual maintenance is sought to be enhanced or reduced. (c) In a suit for annuities or other sums payable periodically, on five times the amount claimed to be payable for one year : provided that, where the annuity is payable for less than five years, the fee shall be computed on the aggregate of the sums payable. "the wordings in S. 22 of the Karnataka court-Fees Act are exactly similiar. S. 49 of the Andhra Pradesh, Court-Fees and suits Valuation Act is reproduced in. paragraph 9 of the said decision. It reads : "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 the 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 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. Explanation: (2 ). . . Explanation: (3 ). . . , explanation: (4 ). . . . Explanation: (5 ). . . . This is in para materia with S. 49 of the Karnataka Court Fees and Suits Valuation Act. The expression 'on the subject matter of the appeal' in S. 49 makes, in my opinion, all the difference for the purposes of the appeal. Explanation: (3 ). . . , explanation: (4 ). . . . Explanation: (5 ). . . . This is in para materia with S. 49 of the Karnataka Court Fees and Suits Valuation Act. The expression 'on the subject matter of the appeal' in S. 49 makes, in my opinion, all the difference for the purposes of the appeal. Whenever the expression, 'subject matter of the appeal' is used it must be understood as the entire subject matter covered by the appeal The appeal may cover either the entire portion of the claim in the suit or a part of it or something more than the claim made in the suit. The subject- matter of appeal therefore cannot be synchronised or equated with the subject- matter of the suit for purposes of court- fee. In the appeal the guiding factor then is the subject-matter of the appeal. The karnataka Court Fees Act does not define the 'suit' as in the U. P. Act. Therefore the word 'appeal' found in S. 49 of the court-Fees and Suits Valuation Act cannot be read as 'suit' itself. On account of the peculiar wordings, 'on the subject matter of the appeal' found in S. 49, the subject-matter of the appeal would be the amount that has become due as per the decree passed by the trial court. The decree in this case has awarded Rs. 500/- per month as maintenance from the date of suit.- Therefore, the subject-matter of the appeal would be the entire amount of maintenance that has become due from the date of suit till the decree is passed. Therefore, the subject-matter of the appeal would be the entire amount of maintenance that has become due from the date of suit till the date of decree. Hence, the trial court was justified in calling upon the plaintiff to pay the court-fee on the entire amount due from the date of suit till the decree was passed. ( 8 ) IN the result, the order passed by the trial court needs no interference and the revision is dismissed. I. A. 1 is also dismissed. Sri Shivaprakash prayed for time to pay the court-fee and prays for six months time. He is given time till -the end of December, 1987 to pay the court- fee. --- *** --- .