Xavier v. Fr. Georts — 1992 DIGILAW 443 (KER)

Judgment :- This is a petition for amendment of the Memorandum of Appeal regarding the vatuation in the appeal and the court fee payable in the appeal. The petitioner is the appellant in the appeal. The appeal was filed on 24-2-1987 accompanied by an application under 0.44 R. I of the Code of Civil Procedure for permission to appeal as an indigent person. There was also an application for condoning the delay in making that application. The delay in making the application for permission to appeal as an indigent person was condoned. Notice was ordered on the application for permission to appeal as an indigent person on 3-3-1987. The said application was objected to by the respondent, who produced a document to show that the petitioner did possess sufficient means to pay the court fee and is hence not an indigent person. By order dt. 7-7-1992 this court held that the petitioner is possessed of means to pay the court fee. The order proceeded to record that the petitioner expressed his willingness to pay the court fee and requested for time to make the payment. Time to pay the court fee was granted for six weeks from that date. The petitioner sought for extension of time to pay the court fee and that application is pending. The petitioner on 8-10-1992 produced a part of the court fee payable on the appeal. Meanwhile the Kerala Court Fees and Suits Vatuation Act had been amended by Amendment Act 6 of 1991 with effect from 5-12-1990. The amendment essentially reduced the rates of court fee payable and also conferred the right on an appellant to initially pay only 1/3rd of the court fee payable. Obviously wanting to take advantage of this benefit, the petitioner had filed the present application praying that he maybe permitted to amend the Memorandum of Appeal by correcting the court fee payable by him in the appeal as according to him the court fee was payable only in accordance with the Kerala Court Fees and Suits Valuation Act, 1959 as amended by the Kerala Court Fees and Suits Valuation (Amendment) Act, Act 6 of 1991. When this petition came up before me originally I asked counsel as to how he could claim the right to pay court fee only on the rates prescribed by the Amendment Act since the appeal and the application for permission to appeal as an indigent person were filed in this court on 24-2-1987, long before the Amendment Act came into force. I have thereafter heard the parties and the learned Government Pleader on the question as to whether in such circumstances the rates applicable would be those that were in force when the application for permission to appeal as an indigent person was filed in this court or the rates applicable on the date when this court finally rejected the application for permission to appeal as an indigent person and granted time to the appellant to pay the court fee. If the conclusion of this court were to be that it will be the new rates that will be applicable, then the amendment application deserves to be allowed. If the view of this court were to be that the appeal must be deemed to have been filed on 24-2-1987, then the amendment sought for in this petition could not be allowed. The question therefore is whether the appeal could be deemed to have been filed after 5-12-1990 and whether the appellant could be permitted to take advantage of the benefits conferred by Amending Act 6 of 1991. 2. Sri. V. Sivaswamy, the learned counsel for the petitioner refers to the scheme of Order 33 of the Code of Civil Procedure read alongwith Order 44 R. I of the Code of Civil Procedure. In this case, the application for permission to appeal as an indigent person made under 0.44 R.1 of the Code of Civil Procedure has been rejected. R.2 of Order 44 of the Code provides that where an application under R. I is rejected, the court may, while rejecting the application, allow the applicant to pay the requisite court-fee, within such lime as may be fixed by the court. This is followed by the words "and upon such payment, the memorandum of appeal in respect of which such fee is payable shall have the same force and effect as if such fee had been paid in the first instance". This is followed by the words "and upon such payment, the memorandum of appeal in respect of which such fee is payable shall have the same force and effect as if such fee had been paid in the first instance". Order 44 Rule 1 makes it clear that the Rules of Order 33 of the Code are to be applied as far as may be in dealing with an application under 0.44 of the Code. It is pointed out by the learned counsel for the appellant t hat Order 44 Rule 2 is in consonance with Order 33 Rule 15 A of the Code. He also refers to 0.33 R.15 of the Code to point that a plaintiff whose application under O.33R.1 of the Code is rejected is at liberty to file a fresh suit paying court fee provided he satisfies the conditions laid down in R.15 of O.33 of the Code. 0.33 R.15 of the Code creates a bar to an indigent person to make a second application though that person would be at liberty to institute a suit in the ordinary manner in respect of that right provided he has paid the costs of the State and of the opposite party in the proceedings under 0.33 of the Code. R.15 A of 033 of the Code provides for grant of lime to the applicant to pay the court fee and provides that on such payment the suit shall be deemed to have instituted on the date on which the application for permission to sue as an indigent person was presented. It could thus be seen that there is a fiction incorporated both by R. ISA of 0.33 and R.2 of 0.44 of the Code of Civil Procedure to treat the suit as having been instituted on the date the application for permission to sue or appeal as an indigent person was presented in a case where the applicant was found to be not an indigent person and was ordered to pay court fee and who had paid the court fee within the lime allowed by the court. 3. 3. It is submitted by the learned counsel that the fiction of relating back found in R.15A of O.33 and R.2 of 0.44 of the Code applies only in a case where the court fee is paid by the applicant pursuant to the adjudication and not in a case where he does not pay the court fee. It is also pointed out by him that nothing stands in the way of the appellant in filing a fresh appeal on the rejection of his application under 0.44 R.1 of the Code provided he satisfies the requirements of R.15 of 0.33 of the Code. He further submits that he could have filed a fresh appeal paying court fee immediately after the rejection of his application on 7-7-1992 and in that case lie need have only paid court fee at the rates prescribed by the Amending Act 6 of 1991 and taking advantage of the further proviso to S.52 of the Court Fees Act. He therefore submits that there is no lack of logic in permitting the appellant to pay the court fee at the amended rates in this appeal, after the court has rejected his application under 0.44 R. I of the Code after the coming into force of Amending Act 6 of 1991. 4. The learned counsel for the appellant placed considerable reliance on the decision reported in Kochappu v. Sornasundaran Chettiar (1991 (1) KLT 657) to support his submission that relief in the matter of payment of court fee should be extended to cases where the appellants are directed to pay court fee after rejection of their applications for permission to appeal as indigent persons where the rejection takes place after Amending Act 6 of 1991 came into force. He particularly refers to the two reasons given by the Division Bench to support this proposition. The Division Bench observed: "In the present case, the right of appeal is not imperiled. Nor is it even impaired by the imposition of a snore 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. 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 SC 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 Division Bench also observed: "In one sense, the Government had to reach a difficult decision in relation to court ices, Ewawhife tightening the belt is other areas, the State did decide to grant relief as regards court see. Doubtless it did well. In such areas, it has been long ago said there are no halfway 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". According to the learned counsel if the object of the legislation was to ameliorate the condition of persons forced to pay court fee, there is nothing wrong in this court making the same approach in cases where an adjudication is made after the Amending Act came into force that the appellant before it is bound to pay court fee and is not entitled to take advantage of 0.44 of the Code. He submits that for that purpose there is also nothing wrong in the court deeming the appeal as having been filed only when this court finally rejected the application for permission to appeal as an indigent person. 5. There is also an alternate submission by Sri. He submits that for that purpose there is also nothing wrong in the court deeming the appeal as having been filed only when this court finally rejected the application for permission to appeal as an indigent person. 5. There is also an alternate submission by Sri. Sivaswamy that when an appeal is not accompanied by the requisite court fee, there is no appeal in the eye of law and that therefore it cannot be deemed that the appeal is filed in this case on in 24-2-1987 when the application for permission to appeal as an indigent person Was filed. He refers to S.4 of the Court Fees Act to contend that no memorandum of appeal which is chargeable with fee under the Act shall be acted upon or taken on file by this court and that therefore in cases where the appeals are filed without payment of court fee and with applications for permission to appeal as indigent persons, the appeals cannot be taken on file on the day they are filed. In support of this proposition he also relies on the decision reported in Manna Lai v. Chhotka Blbi (AIR 1964 All. 552 (FB)). A Full Bench of the Allahabad High Court held that an appeal which was filed but which was unaccompanied by the requisite stamps cannot be deemed to have been filed on the day it was presented and could be deemed to have been filed only when the requisite stamps were supplied. It is therefore his submission that in this case since he has failed to pay the court fee and since the consequences envisaged by R.2 of 0.44 are attracted it must be taken that the appeal has been filed only when he pays court fee and that is after the coming into force of Amending Act 6 of 1991. 6. The stand adopted by the learned counsel for the appellant is strongly controverted by the learned counsel for the respondent as well as by the learned Government Pleader. According to them the appeal must be deemed to have been filed on the day it was presented in this court along with an application for permission to appeal as an indigent person. According to them the appeal must be deemed to have been filed on the day it was presented in this court along with an application for permission to appeal as an indigent person. That date being prior to the corning into force of Amending Act 6 of 1991, the court fee that will be payable on that appeal would be the court fee that was payable as on that day. It is also pointed out that it may be that the appellant could file a fresh appeal on the rejection of his application under O.44 R.1 of the Code if he satisfies the requirements of O.33 R.15 of the Code but that would mean that the appeal would be clearly barred by limitation and the appellant could not take advantage of the presentation of the appeal along with the application for permission to appeal as an indigent person made on 24-2-1987 to save his appeal from the bar of limitation. It is submitted that what the appellant is seeking to do is to make the best of both worlds in that for the purpose of limitation he wants to deem the appeal as having been filed on 24-2-1987 but for payment of court fee he wants to deem the appeal as having been filed on 30-9-1992 when he attempted for pay court fee on the amended rates. It is therefore their submission that there is ho warrant for holding that the appeal must be deemed to have been filed only after the coming into force of Amending Act 6 of 1991. 7. It' was held by the Privy Council as early as in the decision reported in Stuart Skinner Alias Nawab Mirza v. William Orde ((1879) ILR (2) All. 241) that a suit is deemed to be instituted when a petition for permission to sue in forma pauperis is filed. That the suit commences with the application for permission to sue as an indigent person has been laid down by the Supreme Court in the decision reported in Vijai Pratap v.Dukh Haran Nath (AIR 1962 SC 941). 241) that a suit is deemed to be instituted when a petition for permission to sue in forma pauperis is filed. That the suit commences with the application for permission to sue as an indigent person has been laid down by the Supreme Court in the decision reported in Vijai Pratap v.Dukh Haran Nath (AIR 1962 SC 941). A question has also arisen before the courts as to whether interlocutory orders could be passed in favour of a plaintiff or appellant even while he had not been permitted to sue or appeal as an indigent person and had only filed an application for permission to sue or appeal as an indigent person and has presented an appeal along with it without payment of court fee. Almost all the courts have uniformly answered this question in the affirmative holding that the suit must be deemed to have been commenced when the application for permission to sue as an indigent person has been made. To say that the appeal can be deemed to have been filed only when the court fee is paid after the order has been finally made on the application for permission to sue of appeal as an indigent person would lead to serious practical difficulties. It would mean that in cases where the application for permission is rejected, almost all the appeals or suits would be barred by limitation as the process of adjudication takes its own time. Equally it may not be possible to gram interim reliefs or to apply the various other provisions of the Code as if the suit is already pending on the filing of the application for permission to sue or appeal as an indigent person. The practice of this court has also been to treat the appeals filed without sufficient court fee as having been filed on the day they are actually put in. Even if the deficient court fee or the necessary court fee is supplied later, as far as I am aware, the practice of this court has, been to treat the appeal as having been filed on *he day it was originally submitted without the requisite court fee. Even if the deficient court fee or the necessary court fee is supplied later, as far as I am aware, the practice of this court has, been to treat the appeal as having been filed on *he day it was originally submitted without the requisite court fee. It is in this background that one will have to consider whether the appeal could be deemed to have been filed only when an order is made by the court that the appellant is not entitled to appeal as an indigent person and directs him to pay court fee. 8. There is also another fallacy. If the appellant pays court fee either under the old Act or under the amended Act the fiction enacted in Order 44 Rule 2 and Order 33 Rule 15A would straightaway operate. The result would be that the court will have to treat the appeal as having been filed on 24-2-1987, the day on which the application for permission was filed along with the Memorandum of Appeal before this court. It is not possible to have two dates of filing for an appeal, one for the purpose of limitation and another for the purpose of calculating the court fee. That would be an incongruous position. The normal rule has been that the appeal must be taken to have been filed when the application for permission to appeal as an indigent person has been presented and if that is to be reckoned for the purpose of applying the various provisions of the Code and also for the purpose of reckoning limitation for the appeal, I do not think that it is possible to fix a different date of filing for the payment of court fee alone. 9. It must also be noticed that in a case where permission is granted to an appellant to appeal as an indigent person, his appeal would be deemed to have been filed when he lodged the appeal along with the application for permission. This position is clear from the decision of the Supreme Court reported in Jugal Kishore v. Dhanno Devi (AIR 1973 SC 2508). This position is clear from the decision of the Supreme Court reported in Jugal Kishore v. Dhanno Devi (AIR 1973 SC 2508). Even in a case where after the filing of an application for permission for filing a suit as an indigent person alongwith the suit, the application for permission is withdrawn half way through and the plain tiff offers to pay court fee, it has been laid down by the said decision that the suit must be deemed to have been commenced on the day the application for permission to sue as an indigent person was originally made. In paragraph 13 of the Jugal Kishore's case it has been observed by the Supreme Court as follows: "Nevertheless, it must be noted that there is almost a consensus of opinion that where, before the formal disposal of the application to sue as a pauper, the plaintiff offers to pay the court-fee treating the application as his plaint, or, the court, agreeing to treat it asa plaint, enlarges the time for payment of the Court-fee the application must be regarded as a plaint instituted on the day when the application was presented. See: Stuart Skinnar v. William Orde (1878-80) ILR 2 All 241 (PC), Davendar Kumar Bharati v. Mahanta Raghuraj Bharati, AIR 1955 All 154 (FB)". This clearly shows that even when an application for permission to appeal as an indigent person is abandoned by an appellant, his appeal is deemed to have been filed on the day when he originally presented it alongwith the application for permission. It may be interesting to note that this particular case is of that nature. But whatever that be, could the position be different even if the court goes to an adjudication on the question and finally determines that the appellant is not an indigent person and orders him to pay the court fee? 10. When this court orders that the appellant is not an indigent person and is liable to pay court fee in the appeal as any other appellant, what this court really holds is that as on the day the application for permission was presented the appellant ought to have paid the court fee. Though he had not paid the court fee on that day, the court is empowered to grant lime to the appellant to cure that defect or to make up that deficiency'. Though he had not paid the court fee on that day, the court is empowered to grant lime to the appellant to cure that defect or to make up that deficiency'. In such cases the Code says liuU the making up of deficiency shall be deemed to have been done on the day the application itself was presented. I do not find any reason why this fiction should not have its full operation. The fact that Amending Act 6 of 1991 has been held to be a beneficial legislation and has been held to be applicable to cases filed after 5-12-1990 cannot in my view, enable an appelIant who had filed an appeal prior thereto to seek the benefit of the amended Act. The fact that the appellant may be able to file a fresh appeal with the requisite court fee and in that case he need only pay the court fee in terms of the amended Act cannot by itself enable an appellant to contend that the appeal originally filed by him should be deemed to have been filed only after the coming into force of Amending Act 6 of 1991. 11. Coming to the second aspect, the submission of the learned counsel that the appeal could not be deemed to have been filed at all when presented originally without paying any court fee, in terms of S. 4 of the Kerala Court Fees and Suits Valuation Act and could be deemed to have been filed only when the court fees is paid cannot also be accepted. Reliance is placed by Sri. Sivaswamy on the decision reported in AIR 1964 All. 552 for the proposition. The observations of M.C, Desai CJ in that decision does support the submission of the learned counsel S.4 of the Kerala Court Fees and Suits Valuation Act reads: "4. Levy of fee in Courts and public offices.-No document which is chargeable wit h fee under this Act shall- (i) be filed, exhibited or recorded in, or be acted on or furnished by, any Court including the High Court, or (ll) be filed, exhibited or recorded in any public office or be acted on or furnished by any public officer. Levy of fee in Courts and public offices.-No document which is chargeable wit h fee under this Act shall- (i) be filed, exhibited or recorded in, or be acted on or furnished by, any Court including the High Court, or (ll) be filed, exhibited or recorded in any public office or be acted on or furnished by any public officer. unless in respect of such document there be paid a fee of amount not less than that indicated as chargeable under this Act: Provided that, whenever the filing or exhibition in a Criminal Court of a document in respect of which the proper fee has not been paid is in the opinion of the Court necessary to prevent a failure of justice, nothing contained in this section shall be deemed to prohibit such filing or exhibition". What is suggested by the learned counsel is that since no court fee is paid when the appeal was presented alongwith the application for permission to appeal as an indigent person, the appeal cannot be deemed to have been filed at all in view of the provision, especially in a case where the permission sought for is subsequently rejected. 12. S.4 of the Kerala Court Fees is a general Section and applies to all courts. S.149 of the Code of Civil Procedure is also a general provision giving the power to t he court to extend the lime. A Full Bench of-5 Judges of the Allahabad High Court reconciled S.4 of the Court Fees Act and S.149 of the Code of Civil Procedure by understandings. 149 of the Code as a proviso to S.4 of the Court Fees Act. (vide Wa/Vd All v. Isar Bano, AIR 1951 All. 64 (FB)). In that case the Full Bench observed: "S.149, Civil P.C., has, therefore, to be read as a proviso toS. 4, Court Fees Act, in order to avoid contradiction between the two sections. As a result of reading the two sections together in this light, the law may be stated thus: (1) Ordinarily a document insufficiently stamped is not to be received, filed, exhibited or recorded in a Court. (2) When, however, an insufficiently stamped document is presented to the Court, the Court has to decide whet her it will exercise its discretion in allowing time to the party presenting the document to make good the deficiency. (2) When, however, an insufficiently stamped document is presented to the Court, the Court has to decide whet her it will exercise its discretion in allowing time to the party presenting the document to make good the deficiency. (3) If it decides that time should not be granted, it will return the uocurocnt as insufficiently stamped. (4) If it decides that time should be granted, it will give time to the party to make good the deficiency, and in order to enable the party to make good the deficiency within the time allowed, the Court will tentatively for that limited purpose receive the document. (5) If the deficiency is made good within the time fixed, the document is to be deemed to have teen presented and received on the date on which it was originally filed. (6) If the deficiency is not so made good, the document is to be rc'urncd as insufficiently stamped by virtue of S.4 of the Act". S, 149 of the Code has been considered to be an exception to the rule contained in S.4 of the Code of Civil Procedure also by the High Court of Punjab in the decision reported in State of Punjab v. Nund Kishore (AIR 1966 Punj. 332) In Manna Lai's case (AIR 1964 All. 552) the decision reported in AIR 1951 All 64 was considered only by one of the learned Judges (MC Desai O) who held that S.149 of the Code cannot limit or otherwise affect S.4 of the Court Fees Act. Mr. Justice Dayal who wrote the new judgment did not refer to the decision reported in AIR 1951 All 64 at all. Mr. Justice Pathak merely agreed with the answer proposed. With great respect I am not in a position to agree with the view expressed by M.C. Desai CT. I am in respectful agreement with the view expressed by the Full Bench in the decision reported in AIR 1951 All 64. It must also be observed that MC Desai CJ states in the decision reported in AIR 1964 All 552 that S.4 of the Court Fees Act dealt with by him applied only to High Courts and was a special provision and hence its effect could not be whittled down by reference to S.149 of the Code, a general provision. It must also be observed that MC Desai CJ states in the decision reported in AIR 1964 All 552 that S.4 of the Court Fees Act dealt with by him applied only to High Courts and was a special provision and hence its effect could not be whittled down by reference to S.149 of the Code, a general provision. As far as the Kerala Court Fees Act is concerned, S.4 is a general provision applicable to all courts. Moreover with respect. I do not find any inconsistency in S.4 Of the Court Fees Act and the power conferred by S.149 of the Code on the court. The power of the court saved by S.149 of the Code enables the court to reduce the rigour of S.4 of the Court Fees Act. In fact the said decision reported in AIR 1964 All 552 need not detain me since the same has been reversed by the Supreme Court in appeal in the decision reported in Mannan Lai v. Mst. Chhotka Bibi (AIR 1971 SC 1374). The Head Notes of the said decision reads: "S.149of Civil P.C. mitigates the rigour of S.4 of the Court-fees Act and it is for the Court to harmonies the provisions of both the court-fees Act and Civil P.C. by reading S.149 of Civil P.C. as proviso to S.4 of Court-fees Act and allowing the deficit to be made good within a period of time fixed by it. If the deficit is made good no possible objection can be raised on the ground of bar of limitation, as S.149 expressly provides that the document is to have validity with retrospective effect". 13. As can be seen from the proposition enunciated above, once time is granted and the deficiency is made good, then the appeal is deemed to have been presented and received on the date on which it was originally filed. lam therefore not in a position to accept the argument of Sri. Sivaswamy, that there was no filing of the appeal at all when the appellant presented it alongwith a petition for permission to appeal as an indigent person since the appeal was not accompanied by the requisite stamp and the appellant was subsequently denied the privilege of appealing as an indigent person. Sivaswamy, that there was no filing of the appeal at all when the appellant presented it alongwith a petition for permission to appeal as an indigent person since the appeal was not accompanied by the requisite stamp and the appellant was subsequently denied the privilege of appealing as an indigent person. I therefore hold that the appeal in this case must be deemed to have been filed on 24-2-1987, when it was presented alongwith a petition for permission to appeal as an indigent person. 14. In the view I have taken, the present appeal should be taken to have been filed long before the coming into force of the Kerala Court Fees and Suits Valuation (Amendment) Act, Act 6 of 1991. If that be so, the appellant is bound to pay the court fee at the rates prescribed by the unamended Court Fees Act and is also not entitled to take advantage of the further proviso to S.52 of the Court Fees Act as amended by Act 6 of 1991. In this view, the application for amendment of the Memorandum of Appeal has only to be dismissed. I dismiss the same, without any order as to costs.