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2016 DIGILAW 881 (KER)

Shahul Hameed v. Sulekha Beevi

2016-10-20

P.B.SURESH KUMAR

body2016
ORDER : P.B. Suresh Kumar, J. The court fee payable on a Memorandum of Review Petition filed seeking review of the decision in a Second Appeal which is disposed of at the admission stage, is the issue falls for consideration in this matter. 2. The first appellant in R.S. A. No. 771 of 2013 seeks review of the judgment in the Second Appeal. The Second Appeal was one disposed of at the admission stage. As such, in the light of the Second Proviso to Section 52 of the Kerala Court Fees and Suits Valuation Act ('the Act' for short), the appellants had paid on the Second Appeal only one third of the court fee payable on the Second Appeal. Since the appellants had paid only one third of the court fee payable on the Second Appeal, the first appellant has paid only one half of the said court fee in the Memorandum of Review Petition. The Registry maintains the stand that the first appellant has to pay on the Memorandum of Review Petition one half of the court fee payable on the Memorandum of Second Appeal. The first appellant, however, maintains the stand that he is liable to pay on the Memorandum of Review Petition only one half of the court fee paid by the appellants on the Memorandum of Second Appeal. The matter has thus come up for resolution of the said dispute. 3. Heard the learned counsel for the first appellant as also the learned Government Pleader. 4. The learned counsel for the first appellant contended that in so far as the appellants have paid on the Memorandum of Second Appeal only one third of the court fee payable on the Memorandum of Second Appeal, the first appellant cannot be called upon to pay in the Memorandum of Review Petition, more than one half of the court fee paid on the Memorandum of Second Appeal. Per contra, the learned Government Pleader, relying on Article 5 of Schedule I to the Act, contended that the first appellant is liable to pay on the Memorandum of Review Petition one half of the court fee payable on the Memorandum of Appeal, comprising the relief sought in the application for review. In other words, according to the learned Government Pleader, the objection raised by the Registry is in order. 5. In other words, according to the learned Government Pleader, the objection raised by the Registry is in order. 5. Article 5 of Schedule I to the Act dealing with the court fee payable on an application for review of judgment, reads thus: "5. 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." It is evident from the said provision that the court fee payable on an application for review of judgment is one half of the fee payable on the Memorandum of Appeal, comprising the relief sought in the application for review. True, the appellants had to pay only one third of the fee payable on the Memorandum of Second Appeal at the time of institution of the Second Appeal and they were absolved from the liability to pay the balance fee, since the Second Appeal was disposed of at the admission stage, in the light of the second proviso to Section 52 of the Act. The second proviso to S .52 of the Act applies only to Second Appeals. It does not apply to Review Petitions. If the Second Appeal is disposed of at the stage of admission or later, it does not make any difference when it comes to the Review Petition. What is sought to be reviewed being the decision in the Second Appeal, the objection raised by the Registry is in order and the same is, accordingly, sustained.