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2009 DIGILAW 666 (KER)

Narikuniyil Narayanan v. Palol Ummer

2009-07-23

P.R.RAMAN, T.R.RAMACHANDRAN NAIR

body2009
Judgment :- Ramachandran Nair, J. Heard learned counsel for the petitioner and learned counsel for the respondent. 2. An objection has been taken by the Registry regarding the court fee payable on the review petition and since the review petitioner maintained that the court fee paid is sufficient, the matter has been sent to the Bench for appropriate orders. 3. The review petition is filed against the judgment in R.F.A.No.87/2003. The appeal was rejected for non-payment of balance court fee. The appeal, R.F.A.No.87/2003 is one filed against the judgment and decree in O.S. No.225/2000 on the file of the Sub Court, Thalassery. The total court fee payable is Rs.28,940/- and one third court fee of Rs.9,646/- was remitted. After the appeal was admitted, the appellant had to pay the balance court fee. I.A.No.923/2003 was filed by the appellant to extend the time for remittance of balance court fee and extension was granted as per order dated 21.7.2003 in the above application, by two weeks. When the appeal came up for hearing on 21.8.2008, it was rejected for non compliance of the order to pay balance court fee. Presently, the review petition is filed seeking for review of the same by paying Rs.25/- as court fee. 4. The question is whether the court fee paid on the review petition is sufficient. Going by Article 5 of Schedule I, on an application for review of judgment, one half of the fee payable on the plaint or memorandum of appeal comprising the relief sought in the application for review, has to be remitted. Learned counsel for the petitioner submitted that the appellant has remitted one third of the court fee in the memorandum of appeal. The appeal was rejected not on the merits but only for default in payment of balance court fee. Therefore, the appeal is only dismissed for default. It is therefore submitted that it cannot be deemed to be a decree going by the definition of 'decree' in Section 2 (2) of the Code of Civil Procedure. No decision has been rendered by this court on the merits of the appeal. It is therefore submitted that the objection taken by the Registry is not correct. It is therefore submitted that it cannot be deemed to be a decree going by the definition of 'decree' in Section 2 (2) of the Code of Civil Procedure. No decision has been rendered by this court on the merits of the appeal. It is therefore submitted that the objection taken by the Registry is not correct. Reliance is placed on the decision of a Division Bench of this court in Thanappan v. Hassan Kappor (2003 (2) KLT 39) and a Full Bench decision of the Madras High Court in In Re N. Kayambu Pillai (AIR 1941 Madras 836). 5. We will examine the decisions relied upon by the petitioner at first. In Thanappan's case (2003 (2) KLT 39), the plaint was rejected by the trail court for non payment of balance court fee. The appeal was filed before this court challenging the said order. An objection was taken by the Registry to the effect that ad valorem court fee has to be paid. While examining the matter, the Division Bench held thus in para 3: "Plaint was rejected since the plaintiff could not raise sufficient funds to pay the court fee. In such situation, if the plaintiff is directed to pay ad valorem court fee, so as to consider his appeal, as to whether time could be granted to pay the ad valorem court fee in the suit, that will cause considerable prejudice to the party. Plaintiff will have to pay court fee again in the court below. Since the plaint was rejected under O.VII R.11(b) of the CPC, there is no adjudication as to the subject-matter of the suit. Hence, we are of the view that there is no justification in directing the parties to pay the ad valorem court fee. We overrule the objection of the registry and direct the registry to number the appeal." 6. The Full Bench of the Madras High Court in In re N. Kayambu Pillai's case (AIR 1941 Madras 836) considered the issue in a set of similar facts. Therein, the appeal was filed informa pauperis but at a later stage, on finding that the appellant was not a pauper, he was dispaupered and was directed to pay appropriate court fee on the memorandum of appeal and to furnish security for the costs of the respondent. The said order was not complied with and hence the appeal was dismissed. Therein, the appeal was filed informa pauperis but at a later stage, on finding that the appellant was not a pauper, he was dispaupered and was directed to pay appropriate court fee on the memorandum of appeal and to furnish security for the costs of the respondent. The said order was not complied with and hence the appeal was dismissed. A petition was filed to review the order dismissing the appeal with a stamp value of Rs.2/-. Question was raised regarding the sufficiency of the court fee paid on the review petition. The Full Bench examined the question whether the order rejecting the appeal will be a decree as defined in Section 2 (2) of the CPC. After referring to various decisions cited at the Bar, it was held that the order rejecting the appeal is not a decree. At page 837, their Lordships held thus: "An examination of the language used in defining the word 'decree' in S.2(2), Civil P.C., convinces me that the order which Venkatasubha Rao and Abdur Rahman, JJ. passed on 4th March, 1938 directing that the appeal should be dismissed for non-payment of court fee and for failure to furnish security, is not a decree. After saying that the word 'decree' means the formal expression of an adjudication which, so far as the Court expressing it, conclusively determines the rights of parties with regard to the matters in dispute the suit, the section goes on to say what the expression shall be deemed to include and what it shall not include. It does not include two kinds of orders namely, (1) an adjudication from which an appeal lies as an appeal from an order and (2) an order of dismissal for default. What was the order of 4th March 1938 but an order dismissing the appeal for default? The appeal had been admitted in forma pauperis but on it becoming apparent that the appellant was not a pauper the Court in effect said "you shall not proceed unless you pay the proper court fee as you are no longer a pauper." The appellant failed to pay and therefore entitled the Court to dismiss the appeal for default in payment. The fact that there was a further condition unfulfilled --the condition with regard to the furnishing of security--and that O.41, R.10(2) directs that, where security is not furnished within such time as the Court orders, the Court shall 'reject' the appeal, does not turn the order dismissing the appeal into a decree. As I have shown there is ample authority for the proposition that an order under O.41, R.10(2) is not a decree." Accordingly, it was held that since it was not a decree, the court fee of Rs.2/- paid under Article 1 of Schedule 2 of the Court Fees Act is sufficient. 7. We may notice herein that the appeal, viz. R.F.A.No.87/2003 was dismissed for default for not paying the balance court fee. There was no decision on the merits of the appeal. Going by Section 2(2) of the C.P.C., the meaning of the term "decree" will not include any order of dismissal for default. The review is confined only with respect to the dismissal of the appeal for default. If the review petition is allowed, then the appeal will be restored to file and the review petitioner/appellant will have to pay the entire balance court fee. Therefore, as held by the Division Bench in Thanappan's case (2003 (2) KLT 39), since there is no adjudication on the subject matter of the appeal, there will not be any justification in directing the review petitioner to pay half of the court fee on the memorandum of appeal. Therefore, the objection is overruled. It is represented by the learned counsel for the petitioner that the balance court fee in the appeal has been remitted already by way of abundant caution. In that view of the matter, we allow the review petition and R.F.A.No.87/2003 is restored to file.