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2002 DIGILAW 202 (KER)

Ayisha Beevi v. District Collector

2002-03-21

K.A.ABDUL GAFOOR

body2002
Judgment :- 1. The petitioners have approached this Court challenging revenue recovery proceedings initiated against them to recover the court fee payable by them consequent on in limine dismissal of an indigent appeal filed by them. A suit was filed against the petitioners. It was filed on a date earlier than 5th December, 1990 when certain amendment to the Kerala Court Fees and Suits Valuation Act, 1959 was introduced as per Act 6/91. The suit was decreed. Thereupon they filed an appeal on 25th May 1991. By that time, the amendment had taken effect. According to the petitioners, in terms of the second proviso to S.52 of the Act introduced by the said amendment, in the appeal filed by them they were liable to pay only one third of the Court fee payable on the appeal memorandum. The appeal was dismissed in limine. Now the entire court fee payable on the appeal, as if it had been admitted and disposed of, is demanded in the revenue recovery notice. This is illegal, they submit. 2. Relying on the decision of this Court reported in Kochappu v. Somasundaran Chettiar,1991 (1) KLT 657, the petitioners contended that as the amendment had been introduced from 5th December 1990, only the court fee "payable" by them on the appeal shall be recovered consequent on dismissal of the appeal. Going by the second proviso to S.52 of the Kerala Court Fees Act, they were liable to pay only one third of the court fee payable on the appeal "at the stage of admission". When the appeal was dismissed in limine, they are not liable to pay any further court fee. That the appeal has been filed as indigent appeal makes the position no different. 3. It is submitted by the Government Pleader that the suit was filed before the amendment effected on 5th December, 1990. It is true that the appeal has been filed after the amendment had come into force . The court fee payable shall be as per law existed at the time of filing of the suit. Therefore, the entire court fee payable on the appeal is liable to be recovered. 4. It is true that the appeal has been filed after the amendment had come into force . The court fee payable shall be as per law existed at the time of filing of the suit. Therefore, the entire court fee payable on the appeal is liable to be recovered. 4. With respect to the amendment effected on 5th December 1990 to the Court Fees Act, a Division Bench of this Court in Kochappu v. Somasundaran Chettiar, 1991 (1) KLT 657, adverted to the difference between the word "payable" and the word "paid" employed in different sections of the Court Fees and Suits Valuation Act and came to the conclusion that "In respect of all the appeals filed after 5th December, 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". That means, an appellant in the appeal filed after 5th December 1990, irrespective of the fact that the suit has been filed earlier than that date, need pay court fee "payable in terms of the new schedule" notwithstanding the rate applicable to the suit at the time of its filing. 5. The second proviso to S.52 of the Act reads as follows: "Provided further that one third of the court fee payable in an appeal shall be payable at the stage of admission of the first appeal or the second appeal as the case may be and the balance shall be paid within such period, not later than fifteen days from the date of such admission as may be specified by the court; in case the appeal is admitted". (Emphasis supplied). 6. Liability to pay balance court fee arises only when the appeal is admitted as per the said proviso. In this case, the appeal was not admitted. In terms of the proviso, at the time of filing the appeal, an appellant need pay only one third of the court fee payable on the appeal. 7. As per the main provision in S.52 of the Act, the rate of court fee payable on a plaint, as provided in Art.1 in Schedule I to the Act is, made applicable to appeals. Necessarily, following the dictum in Kochupappu, the newly introduced rate was applicable to the appeal filed by the petitioners. 7. As per the main provision in S.52 of the Act, the rate of court fee payable on a plaint, as provided in Art.1 in Schedule I to the Act is, made applicable to appeals. Necessarily, following the dictum in Kochupappu, the newly introduced rate was applicable to the appeal filed by the petitioners. Out of the total fee so payable on the appeal, they were liable to pay only one third of the court fee payable 'at the stage of admission' of the appeal going by the second proviso to S.52 of the Act. The balance is payable only "in case the appeal is admitted". The appeal was not admitted. So the liability to pay the balance did not arise at all. When the petitioner did not have, thus, the liability to pay the balance two third of the court fee payable on their appeal, it cannot be recovered from them. 8. Accordingly, Ext. P1 demand notice is quashed. Respondents are free to demand one third of the court fee payable by them in terms of the second proviso to S.52, if not already paid. Original Petition is allowed.