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2023 DIGILAW 2108 (MAD)

V. Rajarathinam v. V. Sivasubramanian

2023-06-19

N.SESHASAYEE

body2023
ORDER : PRAYER: S.A. No. 24518 of 2018 filed under Section 100 of Civil Procedure Code praying to allow the appeal by setting aside the judgment and decree dated 23.07.2014 passed in O.S. No. 143 of 2010 on the file of II Additional Subordinate Judge at Villupuram as confirmed by the judgment and decree dated 26.10.2017 passed in A.S. No. 16 of 2015 on the file II Additional District Judge (FTC) at Villupuram insofar as rejecting the relief of partition in respect of ‘C’ and ‘D’ schedule properties to the plaint and the decree passed in respect of ‘C’ and ‘D’ schedule properties to the plaint. 1.1 The plaintiff who has successively lost his suit for partition in O.S. No. 143 of 2010 before the II Additional Subordinate Court, Villupuram, and in A.S. 16 of 2015 on the file of II Additional District Judge (FTC), Villupram, has preferred this second appeal. The appeal is yet to be taken on record, and the Registry of this court has raised an objection as to the court fee payable on the appeal. The plaintiff/appellant had paid a fixed court fee of Rs.750/- under Sec. 37(2) of the Tamil Nadu Court Fees and Suit Valuation Act, 1955, and insists that under Sec. 52 of the Act, he is liable to pay only that which is payable on the suit. The Registry however, contends otherwise. 1.2. On the plaint, court fee of Rs.750/- was paid under Sec. 37(2) of the Act, and the appellant claims that under Sec. 52 of the Act, he is liable to pay only that court fee that was paid on the plaint when the suit was registered. The Registry however, insists him to pay a fixed court fee of Rs.5,000/- as enhanced vide Tamil Nadu Court Fees and Suit Valuation (Amendment) Act, 2017 (Act 6 of 2017) (henceforth would be referred to as the Amended Act) which brought about significant amendments to the Tamil Nadu Court Fees and Suit Valuation Act, 1955. The Amended Act came into force on and from 01.03.2017. The Registry’s objection appears to be based on the order of a learned Single Judge of this Court in Sivakami vs. Nallathal, 2018 (2) MWN (Civil) 753. 2. The Amended Act came into force on and from 01.03.2017. The Registry’s objection appears to be based on the order of a learned Single Judge of this Court in Sivakami vs. Nallathal, 2018 (2) MWN (Civil) 753. 2. The point is whether the court fee payable on any appeal filed after the Amended Act but arising from a suit that was filed before the Amended Act is that which was paid on the suit, or that which is prescribed in the Amended Act. This is governed by Sec. 52 of the Act, and it reads: “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.” 3. On the face of Sec. 52, the court fee payable on an appeal is that which is paid on the suit. After all an appeal is a continuation of the suit and this idea easily gets reflected in the said provision. In Sivakami vs. Nallathal, 2018 (2) MWN (Civil) 753, when confronted with an identical situation, a learned Single Judge of this Court has held that only the enhanced court fee payable as per the Amended Act will apply and in arriving at his conclusion the learned Judge had relied on the dictum of the Full Bench of this Court in Darsana Bai (Died) and Others vs. C. Saroja and Others, 2014 (1) MWN (Civil) 498 : 2014 (1) CTC 673 : 2014 (1) LW 585 . 4. 4. The counsel for the appellant, however, argued that the learned Single Judge who decided Sivakami vs. Nallathal did not have the advantage of considering few binding precedents such as that of the Constitutional Bench of the Hon’ble Supreme Court in Garikapati Veeraya vs. N. Subbiah Choudhry and Others, AIR 1957 SC 540 , the ratio of a three Judges Bench in State of Bombay vs. M/s Supreme General Films Exchange Ltd. AIR 1960 SC 980 and a Division Bench of this Court in R.M. Seshadri vs. The Province of Madras, AIR 1954 Madras 543 which have declared the law on the point to the contrary, and that the judgment of the Full Bench of this Court in Darsana Bai case, which the learned Single Judge had relied on, may not be apposite. Hence, this Court has undertaken the exercise to re-visit the issue. 5. Heard the learned counsel. The legislation which prescribes court fees as a precondition to a plaintiff to access the Courts for remedy, has two facets: (a) First it is a fiscal legislation and (b) that it affects the right to access justice. 6. In Lakshmi Ammal vs. K.M. Madhavakrishnan, (1978) 4 SCC 15 , the immortal Shri V.R. Krishna Iyer, the champion and the architect of people’s justice has made a strong statement in favour of access to justice, and the need for appropriate orientation to preserve access to justice when court fee threatens to restrict it. He says: “Two things have to be made clear. Courts should be anxious to grapple with the real issues and not spend their energies on peripheral ones. Secondly, the court fee, if it seriously restricts the rights of a person to seek his remedies in courts of justice, should be strictly construed. After all access to justice is the basis of the legal system. In that view, where there is a doubt, reasonable, of course, the benefit must go to him who says that the lesser court fee alone be paid.” (Emphasis supplied) He echoed a similar sentiment in State of Haryana vs. Darshana Devi, (1979) 2 SCC 236 , wherein he observed as under: “We should expand the jurisprudence of access to justice as an integral part of Social Justice and examine the constitutionalism of court-fee levy as a facet of human rights highlighted in our Nation’s Constitution. If the State itself should travesty this basic principle, in the teeth of Articles 14 and 39-A, where an indigent widow is involved, a second look at its policy is overdue. The Court must give the benefit of doubt against levy of a price to enter the temple of justice until one day the whole issue of the validity of profit-making through sale of civil justice, disguised as court-fee, is fully reviewed by this Court. Before parting with this point we must express our poignant feeling that no State, it seems, has, as yet, framed rules to give effect to the benignant provision of legal aid to the poor in Order 33 Rule 9-A of the Civil Procedure Code, although several years have passed since the enactment. Parliament is stultified and the People are frustrated. Even after a law has been enacted for the benefit of the Poor, the State does not bring into force by wilful default in fulfilling the condition sine qua non. It is a public duty of each great branch of Government to obey the rule of law and uphold the tryst with the Constitution by making rules to effectuate legislation meant to help the poor.” (Emphasis supplied) The aforesaid observations must now be seen in the context of the decision of the Constitution Bench in Anita Kushwaha vs. Pushap Sudan, (2016) 8 SCC 509 , which has now declared access to justice as an integral facet of the right to life under Article 21 of the Constitution. The following observations of the Court merit serious introspection: “31. Given the fact that pronouncements mentioned above have interpreted and understood the word “life” appearing in Article 21 of the Constitution on a broad spectrum of rights considered incidental and/or integral to the right to life, there is no real reason why access to justice should be considered to be falling outside the class and category of the said rights, which already stands recognised as being a part and parcel of Article 21 of the Constitution of India. If “life” implies not only life in the physical sense but a bundle of rights that makes life worth living, there is no juristic or other basis for holding that denial of “access to justice” will not affect the quality of human life so as to take access to justice out of the purview of right to life guaranteed under Article 21. We have, therefore, no hesitation in holding that access to justice is indeed a facet of right to life guaranteed under Article 21 of the Constitution. We need only add that access to justice may as well be the facet of the right guaranteed under Article 14 of the Constitution, which guarantees equality before law and equal protection of laws to not only citizens but non-citizens also. We say so because equality before law and equal protection of laws is not limited in its application to the realm of executive action that enforces the law. It is as much available in relation to proceedings before courts and tribunal and adjudicatory fora where law is applied and justice administered. The citizen’s inability to access courts or any other adjudicatory mechanism provided for determination of rights and obligations is bound to result in denial of the guarantee contained in Article 14 both in relation to equality before law as well as equal protection of laws. Absence of any adjudicatory mechanism or the inadequacy of such mechanism, needless to say, is bound to prevent those looking for enforcement of their right to equality before laws and equal protection of the laws from seeking redress and thereby negate the guarantee of equality before laws or equal protection of laws and reduce it to a mere teasing illusion. Article 21 of the Constitution apart, access to justice can be said to be part of the guarantee contained in Article 14 as well.” 7. If the amended provisions of the Act is assessed for its litigant-friendliness from the standpoint of their fundamental right to access justice, in vast majority of cases where ad valorem court fee is to be paid, the litigants stand to benefit as the ad valorem rate was reduced from 7.5% to 3%. If the amended provisions of the Act is assessed for its litigant-friendliness from the standpoint of their fundamental right to access justice, in vast majority of cases where ad valorem court fee is to be paid, the litigants stand to benefit as the ad valorem rate was reduced from 7.5% to 3%. However, where this ad valorem rate is to be applied on the market value of the immovable property such as those cases which are required to be valued under Sec. 25(a), 25(b), 27(a), 29, 30, 37(3), 38, 45 or 48 of the Act, the Amended Act has targeted the computation of market value for a change in that it is now required to be valued at the guide-line value fixed under Sec. 47AA of the Stamp Act as against the 30 times the kist payable on the land as it used to be under Sec. 7(2)(a) before the amendment. It appears to be a fine balancing Act. The present case arises out of a decree in a partition suit, where fixed court fee is required to be paid. In this category of cases, the litigants may not enjoy the benefit as those who may have to pay ad valorem court fee. The effect of the ratio in Sivakami case is that irrespective of when the suit was filed, if an appeal is filed after the date on which the Amended Act took effect, the court fee needs to be paid on the appeal memorandum in terms of the Amended Act. As explained above, it is bound to benefit those category of litigants who need to pay the court fee not as a component of the market value of the immovable property, for they only need to pay court fee at 3% of the value of the suit. If revisiting the said ratio in Sivakami case is considered necessary, it holds a possibility of benefiting some but not all. But, that is how the statute is structured, and where its constitutionality is not questioned, the courts are only required to interpret it subject to the rule of stare decisis. 8. It is in this backdrop, the question posed before this court needs to be appreciated. But, that is how the statute is structured, and where its constitutionality is not questioned, the courts are only required to interpret it subject to the rule of stare decisis. 8. It is in this backdrop, the question posed before this court needs to be appreciated. The learned counsel submitted that the question which engaged the Full Bench in Darsana Bai case was the quantum of Court-fee payable in an appeal filed against a decree in a suit which was transferred from the Original Side of this Court to the City Civil Court. (This is because, at that point of time the court fee payable on the suit before the Original side of this court is 1% of the market value of the subject matter of the suit whereas that which is payable for the same set of remedies before the Courts of the District Judiciary is 7.5% of the market value). The present question as to whether the court fee payable on an appeal that arises out of a suit which was instituted prior to the Amended Act was not in issue at all in that case. It needs to be noted that the decision of the Full Bench in Darsana Bai case was rendered in 2014, in a different context, and it may not apply to address the question now involved here. While following the said dictum, the learned Single Judge, in effect has granted a retrospective effect to the Amended Act, which runs contrary to the text and tenor of Sec. 52 of the Act, which the legislature in its wisdom has not chosen to amend, argued the counsel. 9.1 The submissions of the learned counsel are carefully evaluated for their merit. It is an accepted rule of interpretation that statutes, more so a fiscal statute, that retrospectivity of the operation of a statute cannot be a matter of presumption, but must be a dictate of statutory prescription, either expressly or by necessary implication. The rationale for the rule against retrospectivity is explained by the Supreme Court in Punjab Tin Supply Co. vs. Central Govt. (1984) 1 SCC 206 , wherein it is observed: “All laws which affect substantive rights generally operate prospectively and there is a presumption against their retrospectivity if they affect vested rights and obligations unless the legislative intent is clear and compulsive. vs. Central Govt. (1984) 1 SCC 206 , wherein it is observed: “All laws which affect substantive rights generally operate prospectively and there is a presumption against their retrospectivity if they affect vested rights and obligations unless the legislative intent is clear and compulsive. Such retrospective effect may be given where there are express words giving retrospective effect or where the language used necessarily implies that such retrospective operation is intended. Hence the question whether a statutory provision has retrospective effect or not depends primarily on the language in which it is couched. If the language is clear and unambiguous effect will have to be given to the provision in question in accordance with its tenor. If the language is not clear then the Court has to decide whether in the light of the surrounding circumstances retrospective effect should be given to it or not.” 9.2 Inasmuch as the court fee payable on an appeal has a direct implication on the right to access justice, the advisability of granting retrospective operation to the Amended Act needs to be considered, not only from the stand point of the principles of statutory interpretation, but also from the stand point of its impact on the fundamental right to access justice. The statute charging court fee is not only a fiscal legislation but one that may seriously affect a citizen’s fundamental right to access justice, and hence it is required to be strictly interpreted. It therefore follows that wherever there is ambiguity in understanding a statute prescribing court fee, the one which makes access to justice less onerous must be preferred. 10. The solution to the question as to whether enhanced Court fees would be payable on an appeal arising out of a suit instituted before the enhancement of Court fee needs to be appreciated on this plane. And, the issue is no more res integra, as it was considered by a Division Bench of this Court in R.M. Seshadri vs. The Province of Madras, AIR 1954 Madras 543 almost seventy years ago. And, the issue is no more res integra, as it was considered by a Division Bench of this Court in R.M. Seshadri vs. The Province of Madras, AIR 1954 Madras 543 almost seventy years ago. Holding that the Court fees payable on the appeal would be the same as the Court fees paid on the plaint as per the un-amended provisions, K. Subba Rao, J. (as he then was) went on to observe as under: “Relying upon this decision it has been argued that a right to prefer an appeal was vested in the plaintiff at the time when the plaint was filed and the amendment unduly restricted that right and therefore cannot affect his vested right. The amendment made in Rule 1 of the High Court-fees Rules reads as follows: “To other documents including Memorandum of Appeals the Registrar shall apply so far as may be the law for the time being in force relating to Court fees, as regards the scale of fees, the manner of levy of such fees the refund of such lees and in every other respect, in the manner and to the extent that it is applicable to similar documents filed in original proceedings in a District Court and in appeals from decrees and orders of a District Court.” This amendment does not give it retrospective operation. Nor can we infer retrospectivity by necessary implication. Full meaning can be given to the amendment if it is confined to cases where the suit was filed after the amendment came into force. But can it be said that the amendment is such that it places a substantial restriction on the plaintiff’s right of appeal? Under the rules as they stood at the time when the suit was filed, the court-fee payable was only Rs. 935. Under the amended rule the court-fee is Rs. 2832-70, i.e. about three times the original rate. This sudden increase in the burden could not have been anticipated by the plaintiff. Had he known that he would be asked to pay such heavy Court fee for preferring an appeal it is problematical whether he would have filed the suit at all, At the time he filed the suit he must have been under the impression that with the payment of an additional Court fee of Rs. 935 he could pursue the suit to its appellate stage. 935 he could pursue the suit to its appellate stage. The right of appeal that vested in him at the time when he instituted the suit was certainly and seriously curtailed by the unexpected heavy burden thrown on the appellant. It is a well-established principle that an Act or Rule imposing a burden has always to be construed strictly. On a fair construction of the language used in the rule we cannot hold that the amendment is retrospective in operation. The court fee prescribed thereby cannot apply to the appeal preferred by the plaintiff.” 11. The same issue arose few years later before the Hon’ble Supreme Court in State of Bombay vs. Supreme General Films Exchange Ltd. AIR 1960 SC 980 . The backdrop to the case was as follows: “It is necessary to state here what the High Court has clearly pointed out with regard to the amendments made by the Court Fees (Bombay) Amendment Act, 1954 (Bombay Act 12 of 1954). On the relevant date the whole system of charging court fees in the Bombay High Court on the original side was altered and instead of a fixed fee payable on the plaint etc. ad valorem fees became leviable as in the districts. The change was effected inter-alia by deleting Section 4 and amending Section 6 of the Court Fees Act, 1870 and Article 1 of Schedule I to the Act. There was no provision, express or by necessary intendment, for giving retrospective effect to the amendments made in the sense of affecting a right of appeal arising out of a suit instituted prior to the relevant date. As this position has not been contested, it is not necessary to read here the provisions of the amending Act.” Answering the question, the Court held that the amended provisions enhancing the Court fees would be inapplicable to an appeal arising out of a suit instituted prior to the amendment. As this position has not been contested, it is not necessary to read here the provisions of the amending Act.” Answering the question, the Court held that the amended provisions enhancing the Court fees would be inapplicable to an appeal arising out of a suit instituted prior to the amendment. The Court proceeded to hold as follows: “It is thus clear that in a long line of decisions approved by this Court and at least in one given by this Court, it has been held that an impairment of the right of appeal by putting a new restriction thereon or imposing a more onerous condition is not a matter of procedure only; it impairs or imperils a substantive right and an enactment which does so is not retrospective unless it says so expressly or by necessary intendment.” 12. This issue is now put beyond any controversy in K. Raveendranathan Nair vs. CIT, (2017) 9 SCC 355 . The question for consideration in that case was as under: “The question that arose for consideration before the High Court in the impugned judgment, against which these appeals arise, was payment of fee as per the aforesaid schedule on the appeals that are filed on or after 26-10-2002. As per the State of Kerala, on all appeals which are filed against the order of the Income Tax Appellate Tribunal or the Wealth Tax Appellate Tribunal on or after 26-10-2002, fee is payable as per the aforesaid amended provisions. The appellants herein, however, contend that in all those cases which were even pending before the lower authorities i.e. the assessing officer, the Commissioner of Income Tax (Appeals) or the Income Tax Appellate Tribunal and orders were passed even before 1-10-1998, the right to appeal had accrued with effect from 1-10-1998 and therefore, such cases would be governed as on the date when the orders were passed by the lower authorities and the court fee would be payable as per the un-amended provisions. The High Court has not accepted this plea of the appellants and has held that any appeal “filed” on or after 26-10-2002 shall be governed by Section 52-A of the 1959 Act.” Holding that the amendment cannot be given any retrospective effect to proceedings that were initiated prior to its coming into force, the Supreme Court held: “When the proceedings originate in the form of a suit filed in the lowest court, it is easy to ascertain that date of filing which becomes governing date for the purpose of payment of court fee in respect of appeals, as vested right accrues on the date of filing of the initial court proceedings.” The aforesaid observations have been recently followed by the Supreme Court in paragraph 18 of the judgment in ECGC Ltd. vs. Mokul Shriram EPC JV, (2022) 6 SCC 704 .” 13. The foregoing discussion makes it evident that the decision of the Full Bench in Darsana Bai case may not be useful to address the question now involved before this Court as it was set to different situation. 14. From a conspectus of the aforesaid decisions, it is clear that the provisions of Act 6 of 2017 enhancing Court fees would not apply to an appeal arising out of a suit instituted prior to the coming into force of the amendment and these category of appeals are governed by the pre-amendment Act. This necessarily implies that this conclusion is apparently at variance with the decision of the coordinate Bench in Sivakami vs. Nallathal, 2018 (2) MWN (Civil) 753. 15. The next point is, should this Court request for a reference to a larger Bench to settle the issue? This Court considers that it is spared of the need for it, since the binding decisions of the Supreme Court in State of Bombay vs. Supreme General Films Exchange Ltd. AIR 1960 SC 980 and K. Raveendranathan Nair vs. CIT, (2017) 9 SCC 355 as well as the decision of the Division Bench of this Court in R.M. Seshadri vs. The Province of Madras, AIR 1954 Mad. 543 , were not considered in Sivakami vs. Nallathal, 2018 (2) MWN (Civil) 753 as they were apparently not brought to the notice of the learned Single Judge. 16. 543 , were not considered in Sivakami vs. Nallathal, 2018 (2) MWN (Civil) 753 as they were apparently not brought to the notice of the learned Single Judge. 16. The conclusion is to state the obvious: The amended provisions of the Tamil Nadu Court Fees and Suit Valuation Act, 1955, enhancing the Court fees Vide the Amended Act would not apply to an appeal arising out of a suit instituted prior to the amendment i.e. prior to 01.03.2017. Consequently, the memorandum of second appeal is required to be valued in terms of the same Court fee as was paid on the plaint at the time when the suit was instituted before the court of first instance. The objections raised by the Registry that enhanced court fee must be paid in terms of the Amended Act stands overruled.