XAVIER Vs. FR GEORGE

JUDGEMENT

(1.) This is a petition for amendment of the Memorandum of Appeal regarding the valuation in the appeal and the court fee payable in the appeal. The petitioner is the appellant in the appeal. The appeal was filed on 24-2-1987 accompanied by an application under O.44 R.1 of the Code of Civil Procedure for permission to appeal as an indigent person. There was also an application for condoning the delay in making that application. The delay in making the application for permission to appeal as an indigent person was condoned. Notice was ordered on the application for permission to appeal as an indigent person on 3-3-1987. The said application was objected to by the respondent, who produced a document to show that the petitioner did possess sufficient means to pay the court fee and is hence not an indigent person. By order dt. 7-7-1992 this court held that the petitioner is possessed of means to pay the court fee. The order proceeded to record that the petitioner expressed his willingness to pay the court fee and requested for time to make the payment. Time to pay the court, fee was granted for six weeks from that date. The petitioner sought for extension of time to pay the court fee and that application is pending. The petitioner on 8-10-1992 produced a part of the court fee payable on the appeal. Meanwhile the Kerala Court Fees and Suits Valuation Act had been amended by Amendment Act 6 of 1991 with effect from 5-12-1990. The amendment essentially reduced the rates of court fee payable and also conferred the right on an appellant to initially pay only 1/3rd of the court fee payable. Obviously wanting to take advantage of this benefit, the petitioner had filed the present application praying that he maybe permitted to amend the Memorandum of Appeal by correcting the court fee payable by him in the appeal as according to him the court fee was payable only in accordance with the Kerala Court Fees and Suits Valuation Act, 1959 as amended by the Kerala Court Fees and Suits Valuation (Amendment) Act, Act 6 of 1991. When this petition came up before me originally I asked counsel as to how he could claim the right to pay court fee only on the rates prescribed by the Amendment Act since the appeal. and the application for permission to appeal as an indigent person were filed in this court on 24-2-1987, long before the Amendment Act came into force. I have thereafter heard the parties and the learned Government Pleader on the question as to whether in such circumstances the rates applicable would be those that were in force when the application for permission to appeal as an indigent person was filed in this court or the rates applicable on the date when this court finally rejected the application for permission to appeal as an indigent person and granted time to the appellant to pay the court fee. If the conclusion of this court were to be that it will be the new rates that will be applicable, then the amendment application deserves to be allowed. If the view of this court were to be that the appeal must be deemed to have been filed on 24-2-1987, then the amendment sought for in this petition could not be allowed. The question therefore is whether the appeal could be deemed to have been filed after 5-12-1990 and whether the appellant could be permitted to take advantage of the benefits conferred by Amending Act 6 of 1991.

(2.) Sri. V. Sivaswamy, the learned counsel for the petitioner refers to the scheme of O.33 of the Code of Civil Procedure read alongwith O.44 R.1 of the Code of Civil Procedure. In this case, the application for permission to appeal as an indigent person made under O.44 R.1 of the Code of Civil Procedure has been rejected. R.2 of O.44 of the Code provides that where an application under R.1 is rejected, the court may, while rejecting the application, allow the applicant to pay the requisite court fee, within such time as may be fixed by the court. This is followed by the words "and upon such payment, the memorandum of appeal in respect of which such fee is payable shall have the same force and. effect as if such fee had been paid in the first instance". O.44 R.1 make's it clear that the Rules of O.33 of the Code are to be applied as far as may be in dealing with an application under O.44 of the Code. It is pointed out by the learned counsel for the appellant that O.44 R.2 is in consonance with O.33 R.15 A of the Code. He also refers to O.33 R.15 of the Code to point that a plaintiff whose application under O.33R.1 of the Code is rejected is at liberty to file a fresh suit paying court fee provided he satisfies the conditions laid down in R.15 of O.33 of the Code. O.33 R.15 of the Code creates a bar to an indigent person to make a second application though that person would be at liberty to institute a suit in the ordinary manner in respect of that right provided he has paid the costs of the State and of the opposite party in the proceedings under O.33 of the Code. R.15A of O.33 of the Code provides for grant of time to the applicant to pay the court fee and provides that on such payment the suit shall be deemed to have instituted on the date on which the application for permission to sue as an indigent person was presented. It could thus be seen that there is a fiction incorporated both by R.15A of O.33 and R2 of O.44 of the Code of Civil Procedure to treat the suit as having been instituted on the date the application for permission to sue or appeal as an indigent person was presented in a case where the applicant was found to be not an indigent person and was ordered to pay court fee and who had paid the court fee within the time allowed by the court.

(3.) It is submitted by the learned counsel that the fiction of relating back found in R.15A of O.33 and R.2 of O.44 of the Code applies only in a case where the court fee is paid by the applicant pursuant to the adjudication and not in a case where he does not pay the court fee. It is also pointed out by him that nothing stands in the way of the appellant in filing a fresh appeal on the rejection of his application under O.44 R.1 of the Code provided he satisfies the requirements of R.15 of O.33 of the Code. He further submits that he could have filed a fresh appeal paying court fee immediately after the rejection of his application on 7-7-1992 and in that case he need have only paid court fee at the rates prescribed by the Amending Act 6 of 1991 and taking advantage of the further proviso to S.52 of the Court Fees Act. He therefore submits that there is no lack of logic in permitting the appellant to pay the court fee at the amended rates in this appeal, after the court has rejected his application under O.44 R.1 of the Code after the coming into force of Amending Act 6 of 1991.