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2013 DIGILAW 355 (AP)

Perumalla Kasi Rao v. Nukala Muralikrishna

2013-04-29

L.NARASIMHA REDDY, S.V.BHATT

body2013
JUDGMENT L. NARASIMHA REDDY, J. 1. AS Nos. 82, 83 and 84 of 2013 are filed by the sole plaintiff in OS No. 43 of 2011 in the Court of VI Additional District and Sessions Judge, Markapur, for the relief of specific performance of an agreement of sale, against nine defendants. Three applications, being I.A. Nos. 362, 363 and 364 of 2011, were filed by defendants 2 and 4, defendant No. 1 and defendant Nos. 5 to 9, respectively, under Rule 11 of Order VII C.P.C., with a prayer to reject the plaint. Through a common order, dated 15.2.2012, the trial Court allowed the applications, and thereby, rejected the plaint. Hence, three appeals came to be filed before this Court by the plaintiff. 2. Raising an objection as to the adequacy of the Court-fee paid by the appellant, the respondents filed ASMP Nos. 782, 783 and 784 of 2013, with a prayer to reject the appeals. The appellant, on the other hand, filed a set of applications with a prayer to permit him to pay the deficit Court-fee. He has also filed ASMP No. 287 of 2013 with a prayer to restrain the respondents from alienating the suit schedule property. 3. Since the appeals are against an order of rejection of plaint, we proposed to hear the appeals themselves. However, learned Counsel for the respondents insisted that the miscellaneous applications alone be heard. Hence, we propose to dispose of the applications. 4. Sri Addepalli Suryanarayana, learned Counsel for the respondents, submits that the Court-fee of just Rs. 10/- was paid on each appeal and the same is totally untenable. He contends that once the decree is passed by the trial Court dismissing the suit, the same Court-fee as was paid in the suit, ought to have been paid in the appeals also. He places reliance upon Section 47 of the A.P. Court Fees and Suits Valuation Act, 1956 (for short the Act) and certain precedents. He further contends that the appeals were directed only against the orders passed in the applications filed under Rule 11 of Order VII C.P.C., and no appeal, as such, was filed against the decree that was separately drawn in the suit. With these and other reasons, he prays for rejection of the appeals. 5. Learned Counsel also opposes the application filed for temporary injunction to restrain the respondents from alienating the suit schedule property. With these and other reasons, he prays for rejection of the appeals. 5. Learned Counsel also opposes the application filed for temporary injunction to restrain the respondents from alienating the suit schedule property. He submits that the appellant has undertaken a speculative litigation, and that there was no order of temporary injunction during the pendency of the suit. He contends that, if an order is passed at this stage, it will lead to several problems, apart from causing hardship to the respondents. 6. Sri M.V.S. Suresh Kumar, learned Counsel for the appellant, on the other hand, submits that the rejection of plaint, though entails in a decree, the amount of Court-fee to be paid in the appeal would depend upon the ground, on which the plaint was rejected. He contends that it is only when the rejection is on the grounds mentioned in clauses (b) and (c) of Rule 11 of Order VII C.P.C., that the Court-fee quantified by the trial Court, needs to be paid and not when the rejection is under clauses (a) and (d) thereof. He has placed reliance upon the judgment of a Full Bench of this Court in Kumarika Subarna Rekha Mani Devi vs. Ramakrishna Deoand, AIR 1968 AP 239 . He further submits that the law does not contemplate a separate exercise, in the context of an order passed in an application filed under Rule 11 of Order VII C.P.C., and consequential dismissal of the suit. He contends that it is a compendious exercise and drawing of a decree in the suit, based on an order in an application filed under Rule 11 of Order VII C.P.C., is only a ministerial act. 7. On the application filed under Order XXXIX Rules 1 and 2 C.P.C., learned Counsel for the appellant, submits that the valuable property is involved and if it is sold or any third party rights are created, even when the appeals are pending, several complications would arise. He contends that the relief of temporary injunction was not sought, when the suit was pending, because the respondents were not taking any steps to alienate the property, and since it is noticed that they are proposing to alienate, the filing of application in the appeal became necessary. 8. He contends that the relief of temporary injunction was not sought, when the suit was pending, because the respondents were not taking any steps to alienate the property, and since it is noticed that they are proposing to alienate, the filing of application in the appeal became necessary. 8. The first question that arises for consideration is as to whether the appeals are liable to be rejected, on the ground that the proper Court-fee is not paid. In a way, the respondents draw analogy from Order VII Rule 11 C.P.C., in the appeals also. The whole controversy would turn around the quantum of Court-fee that is required to be paid in the appeals filed against the decree rejecting a plaint. 9. The C.P.C. provides for the facility of rejection of plaint in contradistinction to return thereof. On the limited grounds that are mentioned in Rule 11 of Order VII C.P.C., the trial Court can reject the plaint. Section 2(2) C.P.C., defines a decree as the one including an order of rejection of plaint also. As and when an application for rejection of plaint is ordered, the plaint stands rejected. The drawing of a decree is purely a ministerial act. Once the application for rejection of a plaint is ordered, the Court does not undertake any further exercise, much less the parties are permitted to take any steps before the trial Court. The order would straight away entail in rejection of the plaint and drawal of a decree to that effect. Therefore, the contention of the respondents that the appeals, in the present form, are not maintainable and that separate appeals are required to be filed against the decree is unacceptable. 10. The rejection of the appeals is sought, on the ground that the same amount of Court-fee, as was paid in the suit, ought to have been paid, on each of the appeals. Section 47 of the Act, no doubt, directs that the Court-fee to be paid on a memorandum of appeal, shall be the same as the one paid on the plaint. However, a distinction between a decree, which is passed in a suit, and a decree, that came into existence as a result of rejection of plaint, needs to be maintained. Section 47 of the Act, no doubt, directs that the Court-fee to be paid on a memorandum of appeal, shall be the same as the one paid on the plaint. However, a distinction between a decree, which is passed in a suit, and a decree, that came into existence as a result of rejection of plaint, needs to be maintained. While the decree passed in a suit, irrespective of the nature of relief granted in it, is the result of the exercise of jurisdiction by the Court, the rejection of plaint is almost the result of the closure of its doors to the plaintiff by the trial Court. When the Court did not entertain the matter at all, it is just unthinkable that the aggrieved party must be mulcted with the liability to pay the Court-fee for the second time. In case, he is able to convince the appellate Court that the rejection of plaint was not proper, the adjudication would take place before the trial Court for the first time. It is a different matter, if the rejection of the plaint is on the grounds of nonpayment of Court-fee at all, or payment of the deficit Court-fee, provided for under clauses (b) and (c) of Rule 11 of Order VII C.P.C. 11. The Full Bench of this Court in Kumarika Subarna Rekha Mani Devi's case (supra), dealt with this very aspect. It was held that the subject-matter of an appeal filed against an order of rejection of plaint has no value in terms of money at all. An elaborate discussion was undertaken by referring to the judgments rendered by various Courts. An instructive and educative passage from an unreported judgment of the Madras High Court, rendered in the year 1923, was quoted extensively. An elaborate discussion was undertaken by referring to the judgments rendered by various Courts. An instructive and educative passage from an unreported judgment of the Madras High Court, rendered in the year 1923, was quoted extensively. In that judgment, Schwabe, C.J., observed:– "It is agreed that the subject-matter in dispute means the subject-matter in dispute on appeal, and it would indeed be strange if the position were this that if the whole case had been heard and there had been a decision of one point upon which the plaintiff wished to appeal, he would in coming up to this Court only have to pay Court-fee based on the value of the item in respect of which he was appealing; while if his case had not been heard at all, and the question was about the maintainability of the suit; in order to come upto this Court to ask that the case should be heard, he would have to pay a Court-fee equal to what he would have had to pay if he had lost the whole of the suit and had desired to appeal in respect of the whole. It is almost inconceivable to my mind that the Legislature could have intended such a result, and, unless one is driven to the conclusion by very clear words that that was the intention of the taxing statute, it would, be in my judgment, impossible so to hold, I find no clear words in this Article to drive me to that conclusion I think that the subject-matter in appeal, has the simple meaning applicable to those cases namely the amount of stamp in dispute between the parties." "Then I think it would be a subject-matter which is incapable of valuation. The question whether this case has to be heard or not and I confess that I have had very correct to say (sic) that the real subject-matter is whether the case is to be heard or not and not what fee is to be paid." 12. There is hardly any judgment on the subject, since the inception of C.P.C., till the date of judgment rendered by the Full Bench, that was left untouched. It was ultimately held that the matters of such nature are not governed by Section 47 of the Act at all. Once that is so, the Court fee has to be paid' as though it is in miscellaneous appeal. It was ultimately held that the matters of such nature are not governed by Section 47 of the Act at all. Once that is so, the Court fee has to be paid' as though it is in miscellaneous appeal. 13. Therefore, the applications filed by the respondents for rejection of the appeals are dismissed. 14. The applications seeking permission to pay the deficit Court-fee are allowed. 15. Coming to ASMP No. 287 of 2013, the appellant claims the relief of temporary injunction to restrain the respondents from alienating the suit schedule property. The suit was filed for the relief of specific performance of an agreement of sale and on the rejection of the plaint, the present appeal is pending. It is no doubt true that no such application was filed during the pendency of the suit. The record, however, discloses that most of the time the trial Court was dealing with the suit on one preliminary aspect or the other. The appellant contends that it is only in the recent past that the respondents are taking steps to alienate the suit schedule property. 16. We are of the view that though injunction as prayed for cannot be granted, the interests of the parties can be protected by directing that if the respondents feel the necessity of alienating the property, they shall be entitled to do so after obtaining permission of this Court by filing an appropriate application. We accordingly direct that the respondents shall not be entitled to transfer or create any third party rights in respect of the suit schedule property, except with the specific permission of this Court, during the pendency of the appeals.