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2011 DIGILAW 4820 (MAD)

S. S. Durai Pandian v. S. S. Pandian

2011-12-14

G.M.AKBAR ALI, K.MOHAN RAM

body2011
JUDGMENT K. MOHAN RAM, J. 1.The above matter has been posted before us for deciding the issue as to whether the court fee paid on the Memorandum of Appeal in this case by the appellant is proper or not? 2. Mr. M. Devendran, learned counsel for the appellant submitted that originally the suit was filed on the Original Side of this Court on 15.12.2006 and was numbered as C.S.No.557 of 2007. Thereafter, because of the enlargement of the pecuniary jurisdiction of the City Civil Court, Chennai the suit was transferred to the City Civil Court and later, transferred to the Additional District and Sessions Court/Fast Track Court at Chennai and it was renumbered as O.S.No.9953 of 2010. He further submitted that the Government has issued a Government Order, under which in respect of the suits transferred from the Original Side of the High Court to the City Civil Court the plaintiff need not pay ad-valorem court fee, but the Court fee already paid before the High Court is sufficient; now the suit has been disposed of, by the judgment dated 10.05.2007 and being aggrieved by that, the above appeal has been filed. 3. According to the learned counsel for the appellants, under Section 52 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 (hereinafter will be referred to as the Act) the fee payable in an appeal shall be the same as the fee that would be payable in the court of first instance on the subject-matter of the appeal. According to the learned counsel, the Court of first instance in this case in the High Court; because the suit was originally filed on the Original Side of this court and it cannot be said that the City Civil Court is the Court of first instance and therefore, according to the learned counsel, under Section 52 of the Act, the Court fee that was paid in the plaint before this Court is the fee that is payable on the Memorandum of Grounds of appeal. 4. Since the Registry has not accepted the contention of the learned counsel for the appellant, the matter has been placed before us. 5. Wehave considered the said submissions made by the learned counsel for the appellant, and perused the materials available on record. 6. 4. Since the Registry has not accepted the contention of the learned counsel for the appellant, the matter has been placed before us. 5. Wehave considered the said submissions made by the learned counsel for the appellant, and perused the materials available on record. 6. The facts are not in dispute, namely, that the suit was originally filed before the Original Side of this Court and later it was transferred to the City Civil Court, Chennai and renumbered and has been disposed of by the learned Additional District and Sessions Judge, Fact Track Court No. V. Chennai. In this context, it will be useful to refer to the provisions of Appendix 1-A of the High Court Fees Rules, 1956 which reads as follows;- 7. A reading of the aforesaid provision shows that the Court fee payable is on the slab rate as prescribed in the aforesaid appendix and not on ad-valorem rate which is applicable to other courts of original jurisdiction.S.No.1 of the above appendix makes it very clear that the court-fee payable on the Memorandum of Appeal from a judgment passed by the High Court in exercise of its Ordinary Original Civil Jurisdiction and not otherwise provided for an Article 3, Schedule II to the Tamil Nadu Court-fees and Suits Valuation Act XIV of 1955, presented to the High Court, is as per the slab rate provided therein. Admittedly, in this case, the above appeal is not filed against the judgment passed by the High Court in exercise of its Ordinary Original Civil Jurisdiction but the appeal has been filed against the decree and judgment made in O.S.No.9953 of 2010 dated 10..5.2011 by the Court of the learned Additional District and Sessions Judge, Fast Tract Court No V, at Chennai. The judgment appealed against has not been passed by the learned Single Judge by exercising the ordinary jurisdiction on the Original Side of this Court. Therefore, in our considered view the Provisions contained in Appendix 1-A of the High Court Fees Rules, 1956 is not applicable to the above appeal. 8. A reading of Section 52 of the Act shows that the fee payable in an appeal shall be the same as the fee that would be payable in the court of first instance on the subject-matter of the appeal. 8. A reading of Section 52 of the Act shows that the fee payable in an appeal shall be the same as the fee that would be payable in the court of first instance on the subject-matter of the appeal. The fee that would be payable in the court of first instance would refer to the court of first instance would refer to the court which passed the judgment and decree in the suit. In this case, admittedly the judgment and decree has been passed in the suit by the learned Additional District and Sessions Judge, Fast Track Court No. V, Chennai and not by a learned Single Judge of this Court on the Original Side. Though the suit was instituted on the Original Side of the High Court Originally, since the suit has been disposed of only by the learned Additional District and Sessions Judge, Fast Track Court No. V, Chennai it cannot be said that the court of first instance is the High Court. The fee that would be payable would indicate that if the suit has been originally instituted before the City Civil Court then ad-valorem fee would have to be paid and only because of the Government Order issued, the additional ad-valorem court-fee payable was not insisted upon. Simply because the appellant was not directed to pay additional court fee before the City Civil Court, that does not mean that on the Memorandum of Grounds of Appeal filed before this court, he can pay the same fee that was paid on the plaint before the Original Side of this court. Therefore the Registry is right in insisting that the Court-fee should be payable as per Section 52 of the Act. Therefore we are unable to countenance the contentions of the learned counsel for the appellants. Hence, Court fee paid on the memorandum of grounds of appeal is not correct and it is insufficient. 9. At this juncture, the learned counsel for the appellants has sought for four weeks time to pay the deficit court fee. Accordingly four (4) weeks time is granted from today to the appellants to pay the deficit court fee. Appendix 1-A (See Rule 1-A)