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1996 DIGILAW 523 (KER)

Usha v. Food Corporation of India

1996-12-06

K.A.MOHAMMED SHAFI, K.G.BALAKRISHNAN

body1996
Judgment :- Balakrishnan, J. This appeal is filed against the order in O.P. (MV) 33/82. The Registry raised an objection that the Court fee paid on the appeal is not correct. According to the appellant, the Court fee paid is correct and the matter is placed before us to decide the question as to whether the court fee paid is correct or not. The appellant contends that the appeal is filed against the order passed in an arbitration O.P. filed in 1982 and the appeal being a continuation of that proceeding, the court fee to be paid on appeal is the same as that was payable on the date of the filing of the O.P. and, it is argued that the amendment to Court Fees and Suit Valuation Act which came into force on 5th December, 1990 has no application. Reliance was placed on the decision reported in State of Bombay v. M/s. S.G. Films Exchange (AIR 1960 SC 980). The Registry points out that in view of the decision reported in Kochappu v. Somasundaran Chettiar (1991 (1) KLT 657) the Court fee paid is not correct. 2. We heard appellant's counsel. In State of Bombay v. M/s. S.G. Films Exchange (AIR 1960 SC 980) the Supreme Court considered the question of refund of court fee. In that case, the suit was decreed on 22.7.1954 and appeal was filed against the decree on 4.9.1954 and court fee was paid on that day. The appeal was later settled between the parties and a prayer was made for dismissal of the appeal. An application was filed for refund of excess court fees paid on the memorandum of appeal. The appellants contended that the appeal having arisen out of a suit which had been instituted on or about 16th April, 1953, that is prior to the coming into force of the Court Fees (Bombay Amendment) Act no Court fees were payable on the memorandum of appeal and that it was due to the mi stake the appeal ant had paid Court fee. The appellant further contended that they were not legally bound to pay anything by way of Court fee except a sum of Rs. 32/-. The court ordered refund of the entire court fee paid on the appeal. The appellant further contended that they were not legally bound to pay anything by way of Court fee except a sum of Rs. 32/-. The court ordered refund of the entire court fee paid on the appeal. The Supreme Court upheld the order passed by the Bombay High Court and held thus: "Where a suit is filed prior to 1.4.1954, on which the Court-fees (Bombay Amendment) Act, 1954 levying enhanced Court fees, came into force, in the absence of provisions giving retrospective effect to the amendments, the Court fee payable on the memorandum of appeal filed after the relevant date (1.4.1954) are payable according to the law in force at the date of filing of the suit-(which was prior to the relevant date) and not according to the law in force at the date of the filing of the memorandum of appeal". The above view was taken on the ground that the right of appeal i s substantive right and it is not a matter of procedure. The Court was bound to admit the appeal and by requiring the appellant to deposit the amount as a condition precedent to the admission of appeal and the right of appeal cannot be hedged by such condition. Reference was also made to various other decisions (See Hossein Kasam Dada, 195 3 SCR 987 = AIR 1953 SC 221 and Garikapatti Veeraya, 1957 SCR 488 = (S) AIR 1957 SC 540) where it has been held that an impairment of the right of appeal by putting a new restriction thereon or imposing a-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. Our attention was drawn to a decision of the Division Bench in Kochappu v. Somasundaran Chettiar (1991 (1) KLT 657) where the decision of the Supreme Court in State off Bombay v. M/s. S.G. Films Exchange (AIR 1960 SC 980) was distinguished and it was held that in respect of appeal filed after 5.12.90, the amended provision of the Court Fees Act would apply. By the amendment of the Court Fees and Suits Valuation Act, 1960 the Court fee payable by the appellant was reduced and therefore, it was held that the right of appeal is not in any way imperiled and therefore, the decision in State' of Bombay v. M/s. S.G. Films Exchange has no application. 3. In the present case, certainly the appellant has to pay higher court fee on the basis of the amended provision. In this case, the right of appeal is imperiled by enhancing the rate of court fee. So, this is a case where the decision in State of Bombay v. M/s. S.G. Films Exchange (AIR 1960 SC 980) has direct application and the appellant is liable to pay court fee on the basis of the unamended provision and we hold that the Court fee paid is sufficient. The Registry will number the appeal and post the same for admission."