Fr. Antony v. Clariat & Convent E. Society — 1997 DIGILAW 488 (KER)

Judgment :- K. Narayana Kurup, J. Petitioner in O.P. (la) no. 113 of 1994 on the file of the court of the District Judge, Alappuzha is the revision petitioner. That was an application filed by the petitioner herein under Ss.276 and 278 of the Indian Succession Act, praying for issuance of Letters of Administration in relation to the Will dated 11.4.1993 executed by one Fr, Varghese Chathaparambil. Petitioner was one of the legal heirs of the testator and respondents 1 and 7 to 10 are stated to be the legatees under the Will. The testator died on 9.5.1993. Since the Original Petition was contested, the same was converted into a suit and registered as O.S.1/1994 on the file of the District Court. The plaintiff had paid 1/10th of the court fee on the total value of the assets covered by the Will. Some of the defendants had filed written statement in the suit. In the meanwhile, the parties to the suit arrived at a settlement among themselves which rendered it unnecessary to prosecute the Letters of Administration in regard to the Will executed by the testator. This fact was reported by the counsel for the plaintiff before the Court with a prayer to strike off O.S.1/1994 from the files. Finding that the matter is settled out of court between the parties at this juncture, the court on its own posted the matter for considering the question as to whether the plaintiff should be directed to pay the remaining court fee calculating the same on an ad valorem basis on the value of the assets scheduled to the petition for Letters of Administration. It was contended on behalf of the plaintiff that the court cannot compel any of the parties to pay the balance court fee and at any rate, if the court finds that sufficient court fee has not been paid, then, the plaint ought to be returned in terms of O. VIIR.11 CPC since the parties are not seeking any adjudication by the Court. Despite the said contention, the court proceeded to pass an order on 29.8.1997 directing that the balance court fee computed on the valuation given in the petition for Letters of Administration will have to be paid. Despite the said contention, the court proceeded to pass an order on 29.8.1997 directing that the balance court fee computed on the valuation given in the petition for Letters of Administration will have to be paid. Subsequently, the court passed an order on 29.9.1997 directing that steps under the Revenue Recovery Act may be taken for realisation of the court fee payable on the valuation of the assets described in Schedule 1 of the Letters of Administration. Accordingly, a warrant was directed to be issued against the plaintiff. Steps under the Revenue Recovery Act have been initiated against the petitioner for recovery of an amount of Rs. 90.034/-and notice under the Revenue Recovery Act has also been issued in this regard on 16.10.1997 and the same is being prosecuted. The revision is directed against the orders of the court below passed on 28.8.1997 and 29.9.1997 as illegal and without jurisdiction. 2. Heard learned Government Pleader at length. Notice to respondents dispensed with at the risk of the revision petitioner. Since payment of court fees is a matter between the person who invokes the jurisdiction of the Court and the State, there is no reason why the defendant or the opposite party should also be given an opportunity to be heard. 3. The question that arises for consideration in this case is whether in the face of the settlement arrived at between the parties at the threshold, the trial court was justified in issuing the impugned orders directing the plaintiff to pay the remaining part of the court fee and on his failure to do so directing steps for revenue recovery by issuing recovery warrant to the District Collector. The reasoning of the court appears to be that notwithstanding the out of court settlement arrived at between the parties, the plaintiff should nevertheless pay the balance court fee payable on the suit which has been registered as such on conversion of the petition for Letters of Administration. It is, no doubt, contended that it is a case where the parties do not want a further adjudication and where the lis ceases to exist and the legatees under the Will accepted the Will as the last Will and testament of the testator. It is, no doubt, contended that it is a case where the parties do not want a further adjudication and where the lis ceases to exist and the legatees under the Will accepted the Will as the last Will and testament of the testator. In other words, it is a case where no Letters of Administration is necessary, the validity of the Will being beyond dispute, the Will having been accepted as the last Will and testament of the testator under the Will. The grounds stated in support of the order dated 28.8.1997 are as follows: "(i) The plaint is on the file and the written statement has been filed. According to the Court Fees and Suits Valuation Act, (for short the Act') once the written statement is filed, the entire balance court fee is to be filed by the plaintiff rendering 0.7 R.11 CPC dealing with rejection of plaint "inapplicable". (ii) Even when the matter is settled out of court, the parties have to file the compromise and the compromise is to be recorded and, therefore, the court fee is to be paid. (iii) Under the amendment to Court Fees Act of the year 1990; court fees can now be paid in stages. Previously, it was not possible to do so and the whole of the court fees had to be paid at the time of institution of the petition. Therefore, when the matter is compromised the balance court fee will have to be paid". 4. It is a matter for examination whether the reasons given by the court below are legally sustainable. Firstly, the Court says that once a written statement is filed, the balance court fee will have to be paid. As a matter of fact, it is not the correct position that emerges from scrutiny of the relevant provisions of the Act under which balance court fee becomes payable within 15 days of the framing of the issues. This is in terms of S.4-A of the Act. In case, the balance court fee is not paid, then the court can only reject the plaint as insufficiently stamped in terms of O. VII R.11(c) CPC. Where the plaint is rejected, the order passed by the Court amounts to a decree as defined in S.2(d) of the Code of Civil Procedure. In case, the balance court fee is not paid, then the court can only reject the plaint as insufficiently stamped in terms of O. VII R.11(c) CPC. Where the plaint is rejected, the order passed by the Court amounts to a decree as defined in S.2(d) of the Code of Civil Procedure. In such a case, there is no provision by which the court can direct proceedings under the Revenue Recovery Act to be initiated for recovery of the court fees directed to be paid by the petitioner. 5. The contention of the learned Government Pleader is that in a situation of this nature, the balance court fee payable can be realised by resorting to coercive steps as in the case of an indigent person as provided under O. XXXIII, R.14 CPC. I am afraid, I cannot accept this contention. A Rule providing for coercive steps cannot be made applicable by implication. In the absence of specific provisions enabling recovery of balance court fee by coercive steps, the court cannot order recovery of the amount by issuance of warrant. Such a procedure is not one contemplated under law. At any rate, the learned Government Pleader was not in a position to point out any specific provisions of law enabling the court to issue recovery warrant to the District Collector. In the aforesaid view, the order issuing recovery warrant cannot be legally sustained. 6. The second reason mentioned by the Court is that when the matter is settled out of court, the parties have to file a compromise and the compromise is to be recorded and decree passed in terms of the compromise. It is true that when the parties enter into a compromise and reduce the terms of compromise in writing, they have to file the same before the court in terms of O. XXIII R.3 of the CPC. However, there could be cases where the parties do not wish to prosecute the litigation any further. In such cases, they would have settled the dispute among themselves in which case, it is not necessary that a settlement should be recorded by the Court. A recording of settlement by Court is necessary only when the parties to the litigation desire the imprimatur of the court. Such decree passed on compromise is like any other decree passed by the Court and executable as such. But where the settlement between the parties is. A recording of settlement by Court is necessary only when the parties to the litigation desire the imprimatur of the court. Such decree passed on compromise is like any other decree passed by the Court and executable as such. But where the settlement between the parties is. reached out of court and without the junction of the court and they do not wish the compromise to be recorded in court, because there is no further subsisting dispute between them, it is really a case where the parties do not require the intervention of the court or the seal of approval of the court in so far as that compromise is concerned. In such cases, the lis which came into being and which was sought to be adjudicated by the Court completely disappears. It is, as if, the suit never existed in the eye of law disabling the parties from referring to the prior proceedings in the suit. In contra-distinction where the terms arrived at between the parties is reduced to writing in a petition and filed before the Court seeking its sanction, the court passes a decree in terms of the compromise and such a decree is binding on the parties and is executable as such. In the present case, the parties did not require the settlement arrived at among themselves to be recorded as a compromise by the Court and to pass a decree in terms of the compromise. Such a procedure could have been asked for by the parties in terms of O. XXIII R.3 CPC. In such a case, the court would have under O. XXIII R.3 CPC accepted the compromise arrived at by the parties and would have passed a judgment and decree in terms of the compromise. The court also would have directed that the decree be drawn up in terms of the compromise. In the present case, such a course was really not necessary for the parties because what was involved is only the issuance of Letters of Administration in relation to a Will executed by the testator. Question of title to the parties covered by the Will is of course, not. a matter which could be decided in pursuance of proceedings under the Indian Succession Act. No such dispute had also arisen in the present case. Question of title to the parties covered by the Will is of course, not. a matter which could be decided in pursuance of proceedings under the Indian Succession Act. No such dispute had also arisen in the present case. If all the legatees under the Will accepted the fact that the Will in question was the last Will and testament of the testator, then it was really a case where the proceedings under the Indian Succession Act before the court became not necessary. Once therefore, the parties accepted the position that the Will was the one duly executed by the testator, then, no further lis remains to be adjudicated or resolved by the court. Viewing from this background, I have no hesitation in holding that the second reasoning of the court that even when the matter is settled out of court, the parties have to file a compromise and the compromise is to be recorded and therefore, the court fee has to be paid is without any legal basis. 7. The third reasoning given by the Court below also cannot be legally sustained in the light of S.4-A of the Act. S.4-A of the Act reads as follows: "4 A. Levy of fee at the time of institution of suit:- Notwithstanding anything contained in any other provisions of this Act, the amount of fees to be paid on plaint at the time of institution of suit shall be one-tenth of the amount of fee chargeable under this Act and the balance amount shall be laid within such period, not later than fifteen days from the date of framing of issue or where framing of issues is not necessary, within such period not exceeding fifteen days as may be specified by the Court: Provided mat the Court may for sufficient reasons to be recorded in writing extent the period upto thirty days. Provided further that if the parties settle the dispute within the period, specified or extended by the Court for the payment of the balance amount, the plaintiff shall not be called, upon to pay such balance." The second proviso to S.4-A of the Act says that when the parties settle the dispute within the period specified or extended by the Court for the payment of the balance amount, the plaintiff shall not be called upon to pay the balance court fee. Second proviso to S.4-A of the Act was introduced in the same amendment which inserted S.4-A in the Statute. Thus, while enabling the litigant to pay the court fee fn stages, the legislature also thought it fit to confer a further benefit by declaring that the plaintiff shall not be called upon to pay the balance court fee which is otherwise payable under S.4-A of the Act if the parties settle the dispute within the period of 15 days from the date of framing the issues or within the period extended by the Court for the payment of the balance amount. Thus, where there is a settlement between the parties, the legislature thought it fit that the parties be relieved of the obligation to pay the balance court fee leviable on the plaint which is necessary only when the parties seek an adjudication by the court. In the aforesaid view second proviso to S.4-A of the Court Fees Act is really conclusive of the issue and would show that the orders passed by the court below on 28.8.1997 and subsequently on 29.9.1997 are unsustainable. 8. Assuming that the first order passed by the court below on 28.8.1997 is sustainable, the second order passed by the court below on 29.9.1997 is clearly unsustainable as one passed without jurisdiction and authority of law. Even if the jurisdiction to direct the payment of balance court lee is conceded, the failure on the part of the plaintiff to pay the balance court fee would only enable the court to proceed under O. VII R.11 of the CPC and reject the plaint with the resultant consequences. But, in the present case, the parties had settled the dispute out of court and had really accepted the Will as the last Will and testament of late Fr. Varghese and therefore, rejection of the plaint was not detrimental to them. Provisions of the Revenue Recovery Act providing for recovery of amounts from a defaulter are penal in character. The said penal provision can only be invoked against the defaulter as contemplated under the specific provisions contained in the relevant statutes. For example, O. XXXIIIR.14 GPC provides for incorporation of provision in the decree directing that the court fee which ought to have been paid by a person directed to sue inform a pauper is be realised as if it is arrears of public revenue due on land. For example, O. XXXIIIR.14 GPC provides for incorporation of provision in the decree directing that the court fee which ought to have been paid by a person directed to sue inform a pauper is be realised as if it is arrears of public revenue due on land. But for that specific provision, the Revenue Authorities will not get jurisdiction to proceed against a person who had been permitted to sue inform a pauper is for recovery of the court fees, otherwise leviable on the plaint. A similar provision is conspicuous by its absence in case where parties to a suit settle the dispute among themselves out of court and represent before the court that the dispute has been settled by them without the intervention of the court. For the aforesaid reasons, the orders under challenge cannot be legally sustained which are accordingly set aside. The C.R.P. is allowed as above, with no order as to costs.