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2004 DIGILAW 344 (KER)

Pankajakshy v. State Bank Of Travancore

2004-07-28

K.PADMANABHAN NAIR

body2004
ORDER 1. This Civil Revision Petition is filed by counter petitioners 1, 2 and 4 in EA No. 397 of 2003 in OS No. 785 of 1989 on the file of the Principal Munsiff, Cherthala. The petitioners valued the above Civil Revision Petition above Rs. 1,000 and levied and paid court fee of Rs. 10 alone under Schedule II, item No. 11(P) of the unamended Court Fees Act. The Registry raised an objection that the court fee paid is insufficient. The petitioners contend that the court fee paid is sufficient since the matter arises in a suit filed prior to the amendment. The matter is placed before Court. 2. Notice was given to the State and Sri Mohan C. Menon, Senior Government Pleader appeared and argued the matter. 3. The short question arising for consideration is whether the petitioners are liable to pay the enhanced court fee as per the amended provision of the Kerala Court Fees and Suits Valuation Act or whether they need pay only the court fee as per the unamended provisions. 4. The Civil Revision Petition is filed against an order passed by the executing court in execution of a money decree. The suit was filed in the year 1989. The EP was also filed on 18th October 2001. Thereafter the provisions of Court Fees and Suits Valuation Act were amended with effect from 26th October 2002 by the Court Fees and Suits Valuation (Amendment) Act, 2003. Art.(11)(P) of Schedule II of the Act was amended enhancing the court fee payable on the Civil Revision Petition presented before this Court. Notice issued to the judgment debtor was returned unserved stating that he was no more. So EA No. 397 of 2003 was filed after the amendment came into force. The EA was disposed of on 10th February 2004. The Civil Revision Petition was filed on 17th May 2004. As in the revision memo itself, it is stated that court fee of Rs. 10 alone is paid under Schedule II of item No. 11(P) of the unamended Court Fees Act since the matter arises in an earlier suit. It is true that the suit was filed in the year 1989. The EP was also filed prior to the amendment. The EA for impleading was filed after the amendment. The impugned order was also passed after the amendment. 5. It is true that the suit was filed in the year 1989. The EP was also filed prior to the amendment. The EA for impleading was filed after the amendment. The impugned order was also passed after the amendment. 5. The learned Counsel appearing for the petitioners relying on Procurator, R. C. Diocese of Calicut v. State of Kerala (AIR 2003 Kerala 143) argued that the amended provisions of Court Fees Act have no retrospective effect. It is argued that the liability to pay enhanced court fee impairs a substantive right. It is argued that the petitioners need pay court fee as per the unamended provisions which existed on the date of filing of the suit. 6. Sri Mohan C. Menon relying on two Division Bench decisions of this Court reported in Kochappu v. Somasundaran Chettiar ( 1991 (1) KLT 657 ) and State of Kerala v. Joy ( 2003 (3) KLT 788 ) argued that the relevant date for payment of court fee is the date of admission and hence the petitioners are liable to pay the court fee payable as per the amended provision. 7. The answer to the controversy raised in the matter depends upon the question whether the right of revision is a substantive right and whether that right is impaired by amendment to the Court Fees Act. The learned Counsel for the petitioners relying on a decision reported in State of Bombay v. M/s Supreme General Films Exchange Ltd. (AIR 1980 SC 980) argued that the right of revision is a vested right. In that decision, it was held as follows: "........ 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." In Procurator, R.C. Diocese of Calicut v. State of Kerala (AIR 2003 Kerala 143) (supra) a Division Bench of this Court relied on the decision of the Supreme Court and distinguished the decision reported in Kochappu's case on the ground that in Kochappu's case the appeal was filed under the provisions of the C.P.C. whereas in Procurator, R. C. Diocese of Calicut v. State Kerala (AIR 2003 Kerala 143), the appeal was filed under the provisions of the Land Acquisition Act. In that case the appellant took up a stand that since the reference was prior to the amendment and he was liable to pay the court fee only as per the unamended provision. That contention was accepted by this Court. The Division Bench in the decision reported in Kochappu's case held that by an amendment the liability of the litigant to pay a higher court fee was reduced and, it will not impair the right of appeal. In State of Kerala v. Joy ( 2003 (3) KLT 788 ) at the time of filing of the appeal by way of an amendment, the liability of the Government to pay the court fee was taken away. In that case this Court took up a view that since the relevant date is the date on which the appeal came up for admission, the Government is not bound to pay court fee. 8. Sri Mohan C. Menon argued that the principle laid down in State of Bombay v. M/s Supreme General Films Exchange Ltd. (AIR 1980 SC 980) (supra) can have no application to this case. There the Apex Court took such a view on the ground that the right of appeal is a vested right. It is argued that though the right of first appeal and revision are similar in many respects there is no vested right to file a revision unlike an appeal. It is argued that after the amendment of S.100A in the Code of Civil Procedure, there is no vested right for an appeal also unless the statute specifically provides for an appeal. He relied on the decision reported in Jacob George v. Jacob Cheriyan ( 2004 (2) KLJ 38 ) and argued that a Division Bench of this Court took a view that in a case filed after the amendment of S.100A C.P.C., there is no provision to file an infra court appeal to the Bench of two Judges against the decision of a Single Judge. 9. It is a well accepted principle of law that right of first appeal is a vested right. It is true that revisional jurisdiction is a part of general appellate jurisdiction of the High Court. [See Shankar v. Krishna ( AIR 1970 SC 1 )]. 9. It is a well accepted principle of law that right of first appeal is a vested right. It is true that revisional jurisdiction is a part of general appellate jurisdiction of the High Court. [See Shankar v. Krishna ( AIR 1970 SC 1 )]. But it cannot be equated with that of full fledged appeal as held in Chandrika Prasad v. Umesh Kumar Verma ( 2002 (1) SCC 531 ) It is to be noted that drastic amendments were made to the provisions of S.115 C.P.C. with effect from 1st July 2002. In Sivasakthi Coop. Housing Society v. Swaraj Developers (2003 (2) KLT 503 (SC)) the Apex Court held that no person has a vested right in the course of procedure. It was held as follows: "S.115 is essentially a source of power for the High Court to supervise the subordinate courts. It does not in any way confer a right on a litigant aggrieved by any order of the subordinate court to approach the High Court for relief. The scope for making a revision under S.115 is not linked with a substantive right." So no litigant can claim a vested right of revision. Since the right of revision is not a vested right, the principle laid down in Procurator, R.C. Diocese of Calicut's case (supra) can have no application to the facts of this case. I am of the view that the principles laid down in State of Kerala v. Joy (supra) apply to the facts of this case. So I hold that the relevant date for payment of court fee is the date on which the C.R.P. comes up for admission and the petitioners are liable to pay court fee leviable and payable under the amended provision. One month's time given to the petitioners to pay the court fee.