Research › Search › Judgment

Punjab High Court · body

2014 DIGILAW 1329 (PNJ)

Raman Kumar v. Amrik Singh

2014-09-22

INDERJIT SINGH

body2014
JUDGMENT : Inderjit Singh, J. Petitioner Raman Kumar has filed this revision petition against Amrik Singh respondent under Section 115 read with Section 151 CPC challenging the impugned order dated 19.03.2013 passed by learned District Judge, Fatehgarh Sahib. 2. It is mainly stated in the ground of revision that impugned order dated 19.03.2013 passed by learned lower Appellate Court in application under Order 7 Rule 11 CPC for rejection of the appeal for want of proper Court fee, vide which application has been allowed and direction have been issued to the appellant/petitioner to make good the deficiency in Court fee, is patently erroneous and is liable to be set aside. 3. Notice of motion was issued and respondent appeared through his counsel and contested the petition. 4. I have heard learned counsel for the parties and have gone through the record. 5. From the record, I find that Raman Kumar plaintiff has filed a suit against Amrik Singh for specific performance and recovery. The suit was dismissed with costs vide judgment dated 06.09.2012 passed by learned Addl. Civil Judge (Senior Division), Fatehgarh Sahib. An appeal was filed by Raman Kumar appellant-plaintiff against abovementioned judgment. Learned District Judge, Fatehgarh Sahib allowed the application filed by the respondent/defendant for rejecting the appeal for not paying proper court fee. Learned District Judge while relying upon the judgment passed by the Hon'ble Supreme Court of India titled as Mohammad Mahibulla and another v. Seth Chaman Lal (dead) by L.Rs, AIR 1993 Supreme Court 1241, held that Court fee as per amended Act should be paid. It is also held by learned District Judge in the order dated 19.03.2013 that when the suit was filed, the Court fee was affixed as per rate prescribed in the year 2006. The suit was decided on 06.09.2012 and the appeal was filed thereafter in the year 2012. In the meanwhile, the Court Fees Act was amended and is made applicable w.e.f 07.01.2010 in which rate of the Court fee was enhanced. Applicant-defendant prayed that the Court fee should be affixed on the appeal as per amended rate. Learned District Judge, Fatehgarh Sahib held that appeal is continuation of the suit and for the purpose of valuation, the valuation made by the plaintiff in the original suit, is to remain the same. Applicant-defendant prayed that the Court fee should be affixed on the appeal as per amended rate. Learned District Judge, Fatehgarh Sahib held that appeal is continuation of the suit and for the purpose of valuation, the valuation made by the plaintiff in the original suit, is to remain the same. But the Court fee at the rate as applicable at the time of filing of the appeal is to be affixed. 6. Learned counsel for the petitioner has cited judgment passed by the Hon'ble Madhya Pradesh High Court in Dinaji v. Jiwanlal, 1981 AIR (M.P.) 36, in which it is held that amendment came into force between filing of suit and filing of appeal. The Court fee is to be determined on the basis of un-amended Act as per the market value of the property obtaining on the date of suit in the absence of any provision giving retrospective effect to the amendments. In that case, reliance has been placed on the judgment passed by the Hon'ble Supreme Court in State of Bombay v. Supreme General Films Exchange Ltd., and Arati Cotton Mills Ltd., AIR 1960 SC 980 , in which it held by the Hon'ble Supreme Court that the Court fees is payable on memorandum of appeal according to law in force on the date of the institution of the suit, in the absence of any provision giving retrospective effect to the amendment increasing the Court fees payable. I have gone through the above-cited judgment and the same fully applies to the facts of the present case. Learned counsel for the petitioner has further cited judgment passed by the Hon'ble Supreme Court in Ramesh Singh v. Cinta Devi, 1996 (2) R.R.R. 671, in which it is also held that right to appeal will crystalize on the institution of the application in the Tribunal of first instance and would not be dislodged by the enactment of new Act unless the new Act expressly or by necessary implication makes the provisions applicable retrospectively. The appellant would be entitled to file appeal without being required to deposit any amount under the proviso to the new Motor Vehicles Act, 1988. I have also gone through the above-cited judgment and the same fully applies to the facts of the present case. 7. The appellant would be entitled to file appeal without being required to deposit any amount under the proviso to the new Motor Vehicles Act, 1988. I have also gone through the above-cited judgment and the same fully applies to the facts of the present case. 7. Learned counsel for the petitioner has also cited judgment passed by the Hon'ble Supreme Court in Mohammad Mahibulla and another v. Seth Chaman Lal (dead) by L.Rs, 1993 AIR (SC) 1241 by stating that the learned lower Appellate Court has wrongly placed reliance on that judgment. I have gone through this cited judgment and the same having distinguished facts nowhere shows that the Court fees as provided under new amended Act, which came into force after filing of the suit is to be applied. The facts of that case are totally different. In that case, exemption notification on the plaint in a suit filed by Wakf Board, Court fee of L 15/- was payable. The Hon'ble Supreme Court held that this exemption is only for the suit and in the appeal, Court fee of L 638/- was payable. Therefore, from the above, I find that learned lower Appellate Court has wrongly placed reliance on the above-said judgment. 8. At the time of arguments, learned counsel for the respondent has not contested this fact that this amendment was not applicable with retrospective effect. 9. In view of the above discussion, I find that the Court fee is to be affixed as per rates fixed in the Act which was applicable at the time of filing of the suit and not as per amended Act. Therefore, I find that the impugned order dated 19.03.2013 passed by learned District Judge, Fatehgarh Sahib is incorrect and not as per law and the same is set aside. The application filed by the defendant-respondent is dismissed. 10. Accordingly, finding merit in the present petition, the same is allowed.