Kochappu v. Somasundaran Chettiar — 1991 DIGILAW 97 (KER)

ORDER K. Sukumaran, J. 1. Most that could be said on the concept and content of court fee has been said by the Supreme Court in P.M. Ashwathanarayana Setty v. State of Karnataka, AIR 1989 S.C. 100 and in Secretary, Government of Madras, Home Department v. Zenith Lamp and Electrical Ltd., AIR 1973 S.C. 724 . Much that could be done within the constricted frame work of a delicate financial situation appears to have been done by the State of Kerala on the basis of a report and recommendations from an expert committee chaired by a former Chief Justice of this Court Many of the professional organisations with effective and genuine academic and public interest, have through their seminars, symposia and resolutions contributed much of thought in the practical plane. One of such meaningful exercises in the State was the seminar on court fee organised at the meeting of the Bar Federation held at Thodupuzha in which the former Chief Justice of Delhi, Shri Rajinder Sachar, delivered a well studied speech. Ordinance No. 9 of 1990 promulgated by the State of Kerala in implementation of the report, gives substantial relief in very many areas as regards court fee. A total abolition may be the ideal; but like many ideals, it is not easily attainable. Levying the court fee almost up to the breaking point may be within the power of the Government as conceded by the Constitution and the Court. An exercise of power in that way may be permissible and legal but not protective or popular. The Government of the day, depending upon its own sense of direction and in tune with its perspective on the future, may arrive at any particular decision. The State of Kerala has arrived at one in that manner. The result was the Kerala Court Fees and Suits Valuation (Amendment) Ordinance, 1990. The Ordinance was duly replaced by the Kerala Court Fees and Suits Valuation (Amendment) Act, 1991 (Act 6/91). The disturbance of the statutory waters is likely to cause the ripples all around. One stone has now been thrown. The ripples are there. The court's pronouncement may set it at rest. Only for the time being. Other stones may be thrown and other ripples may arise. And the courts ultimately absorb them and keep everything calm and clear. The process continues, with fresh challenges and without monotony. 2. One stone has now been thrown. The ripples are there. The court's pronouncement may set it at rest. Only for the time being. Other stones may be thrown and other ripples may arise. And the courts ultimately absorb them and keep everything calm and clear. The process continues, with fresh challenges and without monotony. 2. Seemingly short and simple is the query raised in relation to court fee in these cases. These appeals have been filed after the amendment had been effected to the Kerala Court Fees and Suits Valuation Act, 1959. The Act 6/91 came into force on 5-12-1990. All the appeals are of a later date. 3. The provision for payment of court fees is contained in S.52. It reads: "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". The litigant public in a sense is the prominent party in this interpretative litigation. The State, seeks an application of proper comparators for measuring the relief doled by the new Act. Even within its liberality, the measuring of relief has to be computed correctly and logically-was the stance of the State's counsel, the learned Advocate General. Even at the culmination of arguments in the case, it was clarified on his behalf that he was always a knight and never a prize fighter. When the controversy is live and real, the court has to blow up the cob-webs out of doubting heads. It is unwise to leave things in a woolly condition. 4. A plain reading of the section, to our minds, makes the meaning clear and simple. A taxing officer does not have much of vexation in the calculation of the court fee for an appeal. The section refers him to what is payable on a suit instituted. Necessarily it is a suit instituted at the time when he considers the question and quantum of court fee. Given the valuation, and the ready reckoner of a schedule, the calculation is easy and simple. If practical demonstration is needed, take the facts as are available in the appeal arising from O.S. 128/87 of the Sub Court, Thodupuzha. The court fee payable on the appeal is that payable according to the schedule of a suit instituted for the same relief. If practical demonstration is needed, take the facts as are available in the appeal arising from O.S. 128/87 of the Sub Court, Thodupuzha. The court fee payable on the appeal is that payable according to the schedule of a suit instituted for the same relief. The relief was evaluated in the appeal as Rs. 1278536.20. For such a relief, as on the date of the filing of the appeal, court fee payable is Rs. 87,227.00. Adopt that figure for the purpose of the appeal and the job is done. So adopted, the court fee conies to only Rs.87,227/-. Of course, this is much less compared to the court fee for the amount reckoned on the basis of the schedule in force at the time of the institution of the suit which would be Rs. 1,27,854/-. That is because of the reduction in the court fee now statutorily declared by the State itself. When the reduction is declared as a policy of the State and reflected in a properly framed statute, there is no scope for a further boggling of the mind. The court fee payable is only Rs. 87,227/-. 5. When matters are simple enough in the context of a not so obese statute, it is unnecessary to get enmeshed in avoidable confusion. 6. The court gets considerable comfort from the distinction the statute itself has made between the term 'payable' and the term 'paid'. The term 'payable' occurs in S.5,7,10,11,12,15,20,21,26,42,46,47,48,50,52,53,64, among others. The term 'paid' also occurs in various sections. Some of them are S.61,63,66,67,68,69,70 and 71. The learned Advocate General submitted that the words calling for interpretation are not a simple or singular term 'payable' but a combination of words: "would be payable'. We do not find any substantial difference between the terms 'payable' and would be payable'. If the legislature intended a bodily lifting of the whole or proportionate part of the fee already paid in the lower court, it would be justifiable to expect the legislature to employ the clear and direct term 'paid'. An adoption of a different terminology, "would be payable', cannot be attributed to an accidental slip on the part of the legislature. The term "would be' is in marked contrast with the terminology "that would have been payable' or 'that had been paid'. 7. An adoption of a different terminology, "would be payable', cannot be attributed to an accidental slip on the part of the legislature. The term "would be' is in marked contrast with the terminology "that would have been payable' or 'that had been paid'. 7. When the Act was amended in 1959, the legislature had to provide a repeal for the pre-existing enactments concerning court fee, in the former Travancore Cochin and Malabar District of the former Madras State. Sub-section 2 of S.87 enacted in that context, would furnish a helpful clue in the understanding of the section. Sub-section 2 of S.87 reads: "All suits and proceedings instituted before the commencement of this Act and all proceedings by way of appeal, revision or otherwise arising therefrom whether instituted before or after such commencement shall notwithstanding the repeal of the said Acts be governed by the provisions of the said Acts and the rules made thereunder". (emphasis supplied) The legislature supported the earlier enactments for a limited purpose, and kept it live only for that limited activity, as in the case of someone surviving merely as a vegetative existence, supported by a sophisticated medical mechanism, just keeping him away from the clinical death. Our understanding of the section is justified by the first reaction expressed by Raman Nayar, J. in Raman Kumaran v. Kalikutty Amma, 1969 KLT 229 . The judgment therein is short but the logic is strong. In that case, amending Act 8 of 1966 enhanced the court fee payable under the earlier Act of 1959. Raman Nayar, J. observed: "...........in demanding the higher fee under the amended Act no retrospective effect was being given to the amending Act merely because................. plaint in the suit, was filed before the amending Act". The ultimate conclusion was, however, different from the initial reaction as expressed above. The reason for that variance is also indicated in the judgment: the compelling binding authority of a decision of the Supreme Court in State of Bombay v. M/s. S.G. Films Exchange, AIR 1960 S.C. 980 . 8. The learned Advocate General contended that the interpretation of S.52 in the aforesaid manner, could be presumed to have been the basis on which the legislature proceeded in making the frame work of Ordinance 9 of 1990 and Act 6 of 1991. The argument is indeed plausible. 8. The learned Advocate General contended that the interpretation of S.52 in the aforesaid manner, could be presumed to have been the basis on which the legislature proceeded in making the frame work of Ordinance 9 of 1990 and Act 6 of 1991. The argument is indeed plausible. The court has, however, not only "to be quick at the upkeep but slow and sure in the digestive absorbent process". That would warrant a closer look and a deeper probe into the decision of the Supreme Court which tilted the conclusion of Raman Nayar, J. in 1969 KLT 229 supra. We shall endeavour to do that straight away. 9. In State of Bombay v. M/s. S.G. Films Exchange, AIR 1960 S.C. 980 , the Court fees Act, 1870 as applied to Bombay was amended by Bombay Act 12 of 1954 which came into effect on 1-4-1954. An appeal was filed after the amended Act had come into force, from a judgment in a suit instituted prior to 1-4-1954. It was held that the court fee payable in appeal should be computed at the same rate as was applicable on the date of the institution of the suit, and not as on the date of the filing of the appeal. Para.6 of the judgment projects the argument advanced, in these words: "......it is argued that the true principle is that where a right of appeal is impaired or imperilled or a more onerous or stringent condition is put on the right of appeal, the impairment, peril or imposition of a more stringent condition is not retrospective unless the legislature says so expressly or by necessary intendment." Ultimately this argument was accepted as is evident from Para.12 of the judgment reading: "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 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." (emphasis supplied) 10. In the present case, the right of appeal is not imperilled. Nor is it even impaired by the imposition of a more onerous condition. In the present case, the right of appeal is not imperilled. Nor is it even impaired by the imposition of a more onerous condition. It is patent that what has been conferred under the new enactment is only an additional benefit or advantage to the litigant public. In such a situation, a statute which is otherwise procedural in character does not get transmuted to a substantial law... It would then follow that the new enactment would govern all matters coming within its scope and ambit. Payment of court fee on an appeal would also be taken in by the new enactment so brought into force. The situation is entirely different from and even diametrically opposite to the one visible in 1969 KLT 229 supra and AIR 1960 S.C. 980 supra. As against the upward revision of court fee in those two cases, which could rightly be termed as imperilling the right of appeal or imposing a more onerous condition on the exercise of the right of appeal, the present situation is one where the amended Act brought in some relief if not the whole of manna. Indeed, a downward revision of the court fee, a sweet slashing down giving relief to the honest litigant, is a hitherto unnoticed phenomenon in the history of court fee legislation. The Bengal Regulation brought about payment of court fee in 1795. Macaulay, a prodigious genius much misunderstood in his time and even later, declared that "the imposition of court fee neither makes the pleadings clearer nor the law plainer, nor the corrupt judge purer, nor the stupid judge wiser." His exhortation was easily overpowered by the State which wanted more money in its coffers. Initially the rate was not that unbearable. As for the first enactment in the Travancore Cochin portion of the State, there was a ceiling cap. The lid was, however, laid aside, and the fee payable shot up without ceiling on the basis of the ad valorem computation. This is the singular and solitary occasion when the trend is not only halted but even reversed. That is indeed a warm and welcome experience for the litigant citizen. The point to be stressed in the discussion in the context is that a relief granted is the very antithesis of an impairment or impediment of an existing right. 11. There is one other approach and argument which would support our ultimate conclusion. That is indeed a warm and welcome experience for the litigant citizen. The point to be stressed in the discussion in the context is that a relief granted is the very antithesis of an impairment or impediment of an existing right. 11. There is one other approach and argument which would support our ultimate conclusion. In the Court fees Act of 1890, calculation of court fee is based on an entry in the schedule. The entry treats alike an appeal and a plaint. The Kerala enactment removed from the schedule the provision of appeal. Imposition of court fee on the appeal was attempted to be done by framing S.52. No departure from the scheme of court fee legislation as obtaining in the Court fees Act of 1890 was intended therein. If the legislative intention is to be gathered from the frame work of the 1890 legislation, the only exercise needed for arriving at the court fee payable on appeal, after an amendment (resulting in this case, in a reduction of court fee) was to look at the schedule. The schedule is the new schedule. The fee payable then is the lesser fee now permitted. When no fundamental change is envisaged by the implementation of S.52, the court should not by an interpretative exercise, defeat the continuity of the scheme of court fee levy. 12. In one sense, the Government had to reach a difficult decision in relation to court fees. Even while tightening the belt in other areas, the State did decide to grant relief as regards court fee. Doubtless it did well. In such areas, it has been long ago said there are no half way houses. The court shall not frustrate the hopes of the public by a strange interpretation, virtually denying the relief to a multitude of litigants, still coming to the corridors of courts with a good cause appeal but with inadequate court fee. 13. Dr. Clifford once stated: "Personalities pass and disappear, but the principle of justice is eternal. Ignorant men may nail it to the Cross, but the third day it rises again and mounts to heaven." (See "Prophets, Priests and Kings", by A.D. Gardiner, page 254). Philosophers have discussed the justice process, which in a crude terminology was referred to as 'adjudication of law-suits'. Ignorant men may nail it to the Cross, but the third day it rises again and mounts to heaven." (See "Prophets, Priests and Kings", by A.D. Gardiner, page 254). Philosophers have discussed the justice process, which in a crude terminology was referred to as 'adjudication of law-suits'. The following passage would bring out a key to and the kernel of the adjudication process: "Socrates asks, in Plato's book: 'Will you assign to the guardians of the state the adjudication of law-suits?' 'Certainly'. 'Will not their judgments be guided, above everything, by the desire that no one may appropriate what belongs to others, nor be deprived of what is his own." 14. We trust that the interpretation we have placed on the section and the scheme of the Act would not enable the State to appropriate to it what belongs to the suitor and at the same time would not deprive the suitor of what is his own. 15. For the reasons indicated above we hold that in respect of all appeals filed after 5-12-1990 the court fee payable is to be calculated only on the basis of the new schedule brought into force along with the promulgation of the Ordinance and the Act.