MARY Vs. PAPPU

JUDGEMENT

(1.) A. S. 700 of 1999 was an appeal filed by the defendant in a suit for specific performance. The suit was decreed by the Trial Court. When the matter came up for admission, the plaintiff respondent who had appeared submitted that the appeal itself may be heard and a decision taken one way or the other. With the consent of both the parties, the appeal itself was then heard after giving counsel time to get ready. By judgment and decree dt. 14.12.1999 the appeal was dismissed finding that the Trial Court was right in granting a decree. This petition is filed by the defendant appellant for a review of the judgment.

(2.) The only ground raised in the petition for review is that the appeal A. S. 700 of 1999 ought not to have been heard by a Division Bench. According to counsel, by the Division Bench hearing the appeal the appellant was deprived of the opportunity of filing Letters Patent Appeal under S.5(ii) of the High Court Act and this amounts to discrimination. The further contention raised is that by virtue of the amendment of the Civil Courts Act raising appellate jurisdiction of the District Court to Rs. 2 lakhs, there is an implied repeal of the Kerala High Court Act leading to the position that all the appeals against original decrees have now to be heard by a Single Judge and they cannot be heard by a Division Bench. Before dealing with these contentions we think it proper to refer to the relevant provisions and the facts leading to the review petition.

(3.) In the plaint the relief of specific performance was valued at Rs. 5,00,000 as enjoined by S.42 of the Kerala Court Fees and Suits Valuation Act. The fee payable in a suit for specific performance whether with or without possession in the case of a contract of sale is to be computed on the amount of the consideration. Here apparently the consideration was Rs. 5,00,000 and the plaintiff while suing valued the relief on that amount. The suit was decreed. The defendant filed an appeal before this Court. In the Memorandum of Appeal the appellant showed the valuation as Rs. 5,00,000 as in the plaint. In terms of S.3(13)(b) of the High Court Act a Single Judge of the High Court could hear an appeal from an original decree or order in any suit or other proceeding where the amount or value of the subject matter of the suit or other proceeding does not exceed Rs. 1,00,000. This provision which replaces the earlier provision showing a lesser amount came into force with effect from 29.8.1989. The suit giving rise to the above appeal was filed on 6.1.1997 when the above provision governed the hearing of an appeal by the High Court. All the residuary powers under the Kerala High Court Act vest with the Division Bench and under S.4(2)(a) it had the power to hear an appeal from a decree or order of a civil court except those coming under S.3. Here that would mean that except appeals covered by S.3(13)(b), the appeal had to be heard by a Division Bench. Hence the Registry sent up the appeal to the Division Bench. The Division Bench had without any demur from the appellant entertained the application by the appellant for permission to appeal as an indigent person, had allowed it and had thereafter considered the matter on merits after hearing both sides and dismissed the appeal without admitting it so as to confer an advantage on the appellant since a dismissal subsequent to admission would have entitled the payment of the full court fee by the appellant as against one third of the court fee payable initially in appeals in terms of S.52 of the Kerala Court Fees and Suits Valuation Act. In fact going by the relevant provisions of the Kerala High Court Act the Registry was bound to send up the appeal only before a Division Bench and that was what was done in this case.