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1991 DIGILAW 357 (KER)

Andrew v. State of Kerala

1991-08-14

K.SREEDHARAN

body1991
JUDGMENT : Petitioner was the appellant in A.S.69/1991 on the file of this Court. That appeal was filed by him as an indigent person. Court Fee payable on the memorandum of appeal was Rs.12.62.680/-. That appeal was dismissed by a Bench of this Court on 5-3-1991. A copy of the decree, marked in this case as Exhibit P2, was forwarded by this Court to the District Collector for realising the Court Fee due on the memorandum of appeal. Authorities under the Revenue Department have initiated steps under the Kerala Revenue Recovery Act hereinafter referred to as “the Act”, for realising the Court Fee. Exhibit P4 notice under S.7 of the Act was served on the petitioner. He challenges the action initiated by the authorities under the Act. In this Original Petition he interalia prays for the issuance of a writ of prohibition restraining respondents 2 and 3 from recovering any amount by way of Court Fee from him. 2. The main argument advanced by the learned counsel representing the petitioner is that this Court had not directed the authorities to realise the Court Fee from him as contemplated by Rule 11 of Order XXXIII of the Code of Civil Procedure. In the absence of such an order, it is contended that the revenue authorities have no power to initiate steps under the Act for recovering any amount by way of Court Fee on the memorandum of appeal. 3. A copy of this petition was served on the learned Government Pleader. He was also heard. 4. Exhibit P2 decree produced by the petitioner shows that he was allowed to prosecute AS. 69/1991 as an indigent person as per order dated 14-2-1991 on CMP .No. 18738/ 1988. It further shows that the Court Fee payable on the memorandum of appeal was Rs.12,62,680/-. As per the decree, the appeal was dismissed, i.e. the appellant failed in the appeal. When a person allowed to sue as an indigent person fails, the procedure to be followed in relation to the Court fee is contained in R. 11 of Order XXXIII. It further shows that the Court Fee payable on the memorandum of appeal was Rs.12,62,680/-. As per the decree, the appeal was dismissed, i.e. the appellant failed in the appeal. When a person allowed to sue as an indigent person fails, the procedure to be followed in relation to the Court fee is contained in R. 11 of Order XXXIII. For a proper understanding of that provision, I read the same:- “Where the plaintiff fails in the suit or is dispaupered, or where the suit is withdrawn or dismissed,- (a) because the summons for the defendant to appear and answer has not been served upon him in consequence of the failure of the plaintiff to pay the court-fee or postal charges (if any) chargeable for such service, or to present copies of the plaint or concise statement; or (b) because the plaintiff does not appear when the suit is called on for hearing, the Court shall order the plaintiff, or any person added as a co-plaintiff to the suit, to pay the court-fees which would have been paid by the plaintiff if he had net been permitted to sue as an indigent person”. On a plain reading of the above provision, it appears that where the plaintiff fails in in the suit, the Court shall order the plaintiff, or any person added as a co-plaintiff to the suit, to pay the court-fees which would have been paid by the plaintiff if he had not been permitted to sue as an indigent person. This provision applies to appeals as well. Thus, it is clear that if the plaintiff or the appellant as the case may be has been allowed to institute the suit or appeal as an indigent person and he fails in the proceeding, the Court shall order him to pay court fee which would have been paid by him if he had not been permitted to sue or appeal as an indigent person. The provision makes it mandatory for the court to order the person who was allowed to prosecute the proceedings as an indigent person to pay the Court fee. The Court cannot absolve him from that liability. The state should get the Court fee payable on the plaint or memorandum of appeal. The provision makes it mandatory for the court to order the person who was allowed to prosecute the proceedings as an indigent person to pay the Court fee. The Court cannot absolve him from that liability. The state should get the Court fee payable on the plaint or memorandum of appeal. In other words the ordinary rule that the plaintiff in a suit or appellant in an appeal as the case may be, must pay the court-fee, must govern the payment of court-fee in all cases which fall within the ambit of O.11 of R.XXXIII. In the instant case, petitioner alone was the appellant. He lost the appeal. The ordinary rule is that the appellant is to pay the Court Fee on the memorandum of appeal. No circumstance warranting a deviation from the common rule is brought out in this case. It is true that this court has not passed any specific direction regarding the payment of court-fee on the memorandum of appeal. That doesn’t exonerate the petitioner, the appellant in the appeal, from the liability to pay the Court fees. 5. R. 193 of Civil Rules of Practice directs the Court, which passed the.decree, to forward a copy of the decree to the Collector of the District for realising the Court Fee. Whenever a suit instituted by an indigent person or an appeal filed by an indigent person is disposed of, the decree passed in the suit or the appeal, as the case may be, will have to be forwarded to the Collector. The Collector is then to initiate action under the Act for recovering the Court Fee. 6. As stated earlier, the appeal filed by the petitioner, namely AS.69/1991, was dismissed by this Court. Since petitioner was allowed to file that appeal as an indigent person, this Court forwarded a copy of the decree to the District Collector for realising the Court Fee payable on the memorandum of appeal as provided by the Code of Civil Rules of Practice. Collector has initiated action under that Act, for recovering the amount. 7. Learned counsel representing the petitioner brought to my notice the decision in Murukesan v. Dist. Collector, Ernakulam ( 1981 KLT 7 ) and contended that. Collector has initiated action under that Act, for recovering the amount. 7. Learned counsel representing the petitioner brought to my notice the decision in Murukesan v. Dist. Collector, Ernakulam ( 1981 KLT 7 ) and contended that. unless the Court directs the Government to recover the Court Fee, the authorities under the Act have no power to initiate any action against the plaintiff or the appellant, as the case may be. Since there is no such direction in the decree it is contended that the action under the Act is illegal. In 1981 KLT 7 , plaintiff instituted a suit as an indigent person for recovery of compensation to the tune of Rs.11,650/-from the defendant, the driver of a scooter which hit against him arid caused injuries. In that suit, the learned Subordinate Judge passed a decree allowing the plaintiff to recover a sum of Rs.768.88 as compensation for the injury sustained. The Court fee recoverable on the plaint was Rs.1,145/- When proceedings were taken for recovering that amount from the plaintiff, he approached this Court. This Court observed that when the plaintiff succeeds partly only, the Court should have passed order under R. 11 of O.XXXIII regarding the extent of the liability of the plaintiff. This Court observed:- “There is, however, no clear mandate in O.33 as to how the liability in regard to payment of court-fees is to be determined or fixed where the plaintiff partly succeeds and partly loses as in the present case”. After making this observation, this Court directed the Collector to approach the Court invoking the provision under R. 12 of Order XXXIII to get an order from Court fixing the liability of the petitioner. The facts in that case have nothing in common with the one before me. In this case the appellant filed the appeal challenging the decree passed by the trial court. He completely lost the appeal. Such a case, according to me, squarely comes under R.11 of O.XXXIII. The effect of that rule, as stated earlier, is that where the plaintiff or appellant as the case may be, fails, he has to pay the entire Court fee unless otherwise directed by the Court. In this case, there is no direction exonerating the petitioner from the liability to pay Court Fee. The effect of that rule, as stated earlier, is that where the plaintiff or appellant as the case may be, fails, he has to pay the entire Court fee unless otherwise directed by the Court. In this case, there is no direction exonerating the petitioner from the liability to pay Court Fee. No provision of law authorising the Court to exempt the plaintiff who failed in the suit from paying Court Fee has been brought to my notice either. Therefore, the action taken by the third respondent under the Revenue Recovery Act is perfectly legal. It calls for no interference. The Original Petition fails. It is accordingly dismissed. Dismissed.