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2021 DIGILAW 355 (KER)

Minu v. Vinodhan

2021-03-26

A.MUHAMED MUSTAQUE, KAUSER EDAPPAGATH

body2021
ORDER : A. Muhamed Mustaque, J. This reference has been placed before us by the hon’ble Chief Justice based on a reference order of the learned brother judge A. Hariparsad doubting the dictum in Shahul Hameed v. Sulekha Beevi [ 2017 (1) KLT 39 ]. 2. The question in this reference is a to the court fee payable by the review petitioner seeking review of the second appeal which was dismissed at the stage of admission. 3. Another learned single Judge of this Court in Shahul Hameed’s case (supra) took the view that the review petitioiner is liable to pay 1½ of the fee payable on the memorandum of appeal. This was placing reliance on Article 5 of schedule I of the Court Fees and suits valuation Act, 1959 (Kerala) (hereinafter referred to as the “Act”) 4. The learned single judge in the reference order was of the view that the court fee payable is only half of the 1/3rd court fee payable on the memorandum of appeal. This view was placing reliance on a combined reading of Article 5 of Schedule-I of the Act and in the light of the second proviso to Section 52 of the Act which deals with payment of court fee in respect of appeals. 5. it is appropriate to refer Arcticle 5 of the Schedule-I of the Act which reads thus: "5. Application for review of Judgement: One-half of the fee payable on the plaint or memorandum of appeal comprising the relief sought in the application for review. 6. It is also appropriate to refer to Section 52 of the Act which reads thus: "52. Appeals.- 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 : Provided that, in levying fee on a memorandum of appeal against a final decree by a person whose appeal against the preliminary decree passed by the court of first instance or by the court of appeal is pending, credit shall be given for the fee paid by such person in the appeal against the preliminary decree. Provided further that one third of the fee payable in an appeal shall be paid at the state of admission of first appeal or second appeal as the case may be and the balance shall be paid within such period, not later than fifteen days from the date of such admission as may as specified by the court; in case the appeal is admitted: Provided also that the court may, for suffieicent reasons to be recorded in writing, extend the period upto thirty days". The second proviso to Section 52, enables the appellant only to remit one third of the fee payable in appeal at the stage of admission of first appeal or second appeal as the case may be. The liability to pay the remainder would arise only from the date of admission. That means, if the first appeal or second appeal is not admitted, the appellant has no liability to pay the balance court fee payable on the memorandum of appeal. 7. For the purpose of review, one has to pay one half of the fee payable on the plaint or memorandum of appeal comprising the relief sought in the application for review as contemplated under Article 5. The words 'comprising the relief sought in the application for review' has significance in this context. If the appeal has been dismissed in limine, the reliefs sought in the review is to reopen the decision of the Court dismissing the appeal at the admission stage. The liability of the court fee at the admission stage is only one third of the fee payable. Therefore, the privisioins in Article 5 has to be construed to mean as to the liability of the review petitioner to pay half of the one third court fee payable on the memorandum of appeal. 8. We are of the considered view that the liability of the review petitioner in such circumstance is only to pay half of the one third court fee paid at the time of admission stage. The learned single Judge, from whose order the reference arises, has rightly pointed out that the liability of the review petitioner has to be limited to the half of the one third fee payable in appeal at the stage of admission of the appeal. We thus, overrule the judgment in Shahul Hameed's case (supra). Reference answered accordingly.