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2018 DIGILAW 903 (AP)

G. Yadaiah v. G. Savithri

2018-12-14

M.SEETHARAMA MURTI

body2018
ORDER : M. Seetharama Murti, J. 1. This application is filed under Section 151 of the Code of Civil Procedure, 1908, by the petitioner/appellant in the proposed appeal requesting to direct the Registry of this Court to receive the Court fee, which was already paid in the City Civil Court, Hyderabad, and number the unregistered appeal. 2. I have heard the submissions of Sri B. Rajeswara Rao, learned Counsel appearing for the petitioner/appellant. I have perused the material record. 3. The introductory facts are as follows : "The petitioner-appellant filed the suit against the defendants/respondents herein seeking verbatim the following reliefs : (a) Declaring the plaintiff as the absolute owner of the property bearing No. 19-4-347 admeasuring 260 Sq.yards equivalent to 236 Sq.mts. situated at Kondareddyguda, Kishanbagh, Hyderabad, bounded by: North: Lane, South: Neighbours, East: Neighbours, West: Road. (b) Direct the defendant to handover the vacant possession of the said house bearing No. 19-4-347 admeasuring 260 Sq.yards equivalent to 236 Sq.mts. situated at Kondareddyguda, Kishanbagh. Hyderabad, bounded by: North: Lane, South: Neighbours, East: Neighbours, West: Road. (c) Costs of the suit be awarded. (d) Grant such other relief or reliefs to the plaintiff as this Hon'ble Court deems fit and proper in the circumstances of the case. The plaint was presented, on 15.11.2005. It is pertinent to note that the valuation paragraph of the plaint verbatim is as under : "The suit is valued for a sum of Rs.5,60,000/- and a Court fees of Rs.8,020/- is being paid under Section 24(d) of A.P. Court Fees and Suit Valuation Act, paid for declaration and injunction is a consequential relief no Court fee is paid." After full-fledged trial, the learned VI Senior Civil Judge, Hyderabad, decreed the suit, on 1.6.2017, in favour of the defendants. Aggrieved thereof, the unsuccessful plaintiff initially preferred the appeal before the City Civil Court, Hyderabad, on 30.6.2017; and, paid a Court fee of Rs.8,026/- under Section 20 of the A.P. Court Fees and Suits Valuation Act. The City Civil Court returned the appeal suit with the office objection with regard to maintainability of the appeal before it, as the value of the appeal exceeded Rs.5,00,000/-. In view of the objection taken by the office of the City Civil Court, Hyderabad, the plaintiff/appellant presented this unnumbered appeal before this Court." 4. In this backdrop, since the required Court fee of Rs. In view of the objection taken by the office of the City Civil Court, Hyderabad, the plaintiff/appellant presented this unnumbered appeal before this Court." 4. In this backdrop, since the required Court fee of Rs. 8,026/- is already paid vide current account pay in slip, dated 3.7.2017, to the credit of the current account of Chief Judge, City Civil Court, Hyderabad, to avoid any objection being taken by the Registry as regards the payment of Court fee, this application is filed requesting to direct the Registry to receive the Court fee, which was already paid in the City Civil Court, Hyderabad, and number the appeal. 5. Learned Counsel placed reliance on the following decisions: (i) S. Visweswara Sarma v. Dr. T.M. Nair and another, (1912) 35 ILR 567 (Mad.) : (1911) 21 MLJ 533 ; and (ii) Hira v. B.D. Kashyap and another, AIR 1956 HP 38 . In the first cited decision rendered by a Full Bench of the High Court of Madras, the facts reflect that a plaint originally presented to City Civil Court, when returned was re-presented to the Small Cause Court; since the stamp was cancelled by the City Civil Court, the question was whether the plaint when presented to the Small Cause Court was unstamped quoad the cancelled stamp. The Full Bench answered the question 'Whether the Small Cause Court is bound to give credit for the fee levied by the Civil Court' in the affirmative. The Full Bench answered the question 'Whether the Small Cause Court is bound to give credit for the fee levied by the Civil Court' in the affirmative. Though in the second cited decision, the decision was rendered having regard to the facts of that case, the said decision was relied upon in support of the following propositions, which were laid down in the decisions referred to in the cited decision: 'A plaintiff, who had acted bona fide, should not be in worse position because the Court did not find out its want of jurisdiction before the stamps were cancelled, and, as the rule for the return of plaints makes no distinction between cases, where the plaintiff has acted bona fide and cases where he has acted otherwise, the same principles clearly meant to apply in all cases.' 'Where a Court fee on the institution of a suit has been paid in a Court which cannot possibly afford the relief sought, it does not seem consistent with sound principle that the plaintiff, should be condemned to lose the fee thus paid or that he should not be allowed to ask, without, paying a second fee, for an adjudication from a Court which can really give one..' 'Where a plaint is returned for presentation to the proper Court, the plaintiff can take advantage of the Court fees that are paid on the previously filed plaint and he can pay the deficient Court fees in the Court having jurisdiction to hear the case.' 6. Having regard to the facts & submissions and the legal position obtaining, this Court is of the considered view that the petitioner is entitled to request to give credit for the Court fee levied by the City Civil Court, Hyderabad. 7. The petition is ordered accordingly. The Registry is directed to register the appeal, if otherwise in order.