WARASAYAR Vs. KUNHEN WARRIER

JUDGEMENT

(1.) DEFENDANTS 1 to 3 and 8 in O. S. No. 335/1119 of the file of the Trichur District Munsiff's Court are the appellants. The 8th defendant is the husband of the 1st defendant, and defendants 2 and 7 are their children. According to the plaintiff, the 1st defendant, who had been appointed as their agent under Ext. B agreement dated 20. 11. 1109 for the management of the plaint properties and also for the performance of the duties specified in the agreement had violated the terms of the agreement and had acted in excess of the powers conferred by the terms of the agreement and had also acted against the interests of the plaintiffs and accordingly the agency created by Ext. B was terminated by the plaintiffs by the issue of the registered notice to the first defendant. The plaintiff's suit is for a declaration that the agency created under Ext. B agreement has been duly terminated or in the alternative for a cancellation of the agreement, for the reasons already stated. It is also prayed that the suit properties may be allowed to be recovered by the plaintiffs from the defendants with future mesne profits at the rate of 40 paras of paddy per year. The suit properties were valued at Rs. 1660 and on that basis a court fee of Rs. 94 was paid by the plaintiffs. The defendants resisted the suit and contended that Ext. B agreement is not a mere contract of agency but is a permanent arrangement under which a right was created in favour of the defendants over the plaint properties and that even otherwise the agency created under Ext. B was coupled with an interest in favour of the agent and as such the agency cannot be terminated by any unilateral act on the part of the plaintiffs. It was also contended that the defendants had become joint owners of the plaint properties along with the plaintiffs and as such the plaintiffs are not entitled to recover possession of the properties from the defendants. The defendants also put forward a claim for the value of the improvements effected by them in the properties in case it is found that they are liable to surrender possession of the properties. The trial court repelled all these contentions and gave a decree in favour of the plaintiffs for recovery of possession of the properties from the defendants. It was declared that Ext. B agreement was validly terminated as per the registered notice issued to the defendants by the plaintiffs on 2.3. 1119. Against that decree defendants 1 and 3 to 8 preferred an appeal to the Trichur District Court as A. S. No. 33 of 1123. The two main reliefs claimed by them in that appeal were for a declaration that Ext. B agreement was not liable to be cancelled as a mere contract of agency and also for a declaration that the defendants, who have become joint owners of the plaint properties with the plaintiffs, are not liable to be evicted from the properties. The first of these reliefs was valued at Rs. 100 and the second relief was valued at Rs. 200. On each of these counts the appellants paid a court fee of Rs. 10/-, the total amount of court fees thus paid being only Rs. 20. By the several grounds raised in the appeal memorandum they had questioned the correctness of the trial court's finding on the several issues raised in the case. There was also a general prayer in the appeal memorandum that the trial court's decree may be set aside and the plaintiffs' suit may be dismissed.

(2.) WHEN A. S. No. 33 of 1123 came on for hearing before the lower appellate court, an objection was raised on behalf of the respondents that the appellants had not paid proper court fee on the appeal memorandum and as such the appeal was unsustainable. In answer to this objection the appellants maintained that the court fee paid on the basis of the reliefs as valued in the appeal memorandum was sufficient. This contention was overruled by the lower appellate court and it was held that the appellants were bound to pay the court fee as per the plaint valuation. On behalf of the appellants request was made for granting them time to pay up the deficit court fee. This prayer was disallowed by the lower court. The request of the appellants' learned counsel that he may be allowed to argue the appeal on the points expressly valued in the appeal memorandum and on which court fee had been paid, was also disallowed on the ground that no effective decree could be passed in the appeal by a decision on those points alone. Accordingly the appeal was dismissed with costs, without considering it on the merits, but merely on the ground that proper court fee had not been paid on the appeal memorandum. This decision of the lower appellate court is challenged in this second appeal.

(3.) CLAUSE (c) of R. 11 of 0. 7 of the Code of Civil procedure (Cochin) lays down that where the plaint is written upon paper insufficiently stamped and the plaintiff on being required by the court to supply the requisite stamp paper within a time to be fixed by the court fails to do so the plaint shall be rejected. This provision indicates that when the plaint is presented to the court, it is the duty of the court to see if proper court fee has been paid on it and in case the court fee paid is insufficient, to fix a time to enable the party to pay up the deficit court fee. There is no reason why the same procedure should not be followed when an appeal memorandum is presented to the court. For all practical purposes an appeal memorandum presented by an appellant is in the same position as a plaint presented by a plaintiff. The provisions contained in R. 11 of O. VII of the Civil Procedure Code should be applicable to appeals also. This view gains support from the general provisions contained in clause (2) of S. 91 of the Cochin Civil Procedure Code corresponding to clause (2) of S. 107 of the Indian Code. This clause lays down that "the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on the courts of original jurisdiction in respect of suits instituted therein". In view of this provision, it is clear that just as it is the duty of the original court to see whether the plaint presented before it is properly valued and duly stamped, the appellate court has also the duty to see whether the appeal memorandum presented before it is properly valued and duly stamped, and in case it is found that the court fee paid is insufficient to fix a reasonable time to enable the appellant to pay the deficit court fee. The view taken by the Patna High Court in Sarjug Prasad v. Surendranat (AIR 1932 pat. 137) is also to the same effect. In that case it was laid down that the provisions contained in R. 11 of 0. 7 applies to appeals also and that the appellant should be given an opportunity of making good the deficient court fee due on the appeal memorandum. S. 120 of the Cochin Civil Procedure Code (corresponding to S. 149 of the Indian Civil Procedure Code) also gives a general power to the court to permit a party to pay up the deficit court fee found due from him. There is no reason why the discretion conferred on the court by this section should not be exercised in favour of the present appellants. It cannot be said that they were acting with any mala fides in valuing the appeal memorandum in A. S. 33 of 1123 before the lower appellate court in the manner they did. It can only be taken that they were acting in good faith in making such a valuation believing that the declaratory reliefs thus valued would be sufficient, if granted, to have the trial court's decree vacated. At the same they had expressly stated in the appeal memorandum itself that the question of the sufficiency of the court fee paid by them may be decided by the court and that in case it is found that additional court fee is due from them they are prepared to pay up such deficit court fee also. Thus it was only proper that the lower appellate court should have exercised the power conferred on it by S. 120 and R. 11 of 0. 7 of the Civil Procedure Code (Cochin) and should have granted a reasonable time to the appellants to pay up the deficit court fee. The dismissal of the appeal on the mere ground that proper court fee had not been paid on the appeal memorandum, having been made without affording an opportunity to the appellants to pay up the deficit court fee, cannot therefore be sustained and we hold accordingly.