THANAPPAN Vs. HASSAN KAPPOR

JUDGEMENT

(1.) This appeal has been preferred under S.96 and O.41 R.1 of the Code of Civil Procedure against the judgment and decree in OS. 81 of 1998 of Sub Court, Manjeri. Suit was for recovery of a sum of Rs.8,57,550/- with future interest from 28.9.1998. Plaintiff had taken all formalities for serving notice on the defendants. Second defendants did not appear and was set ex parte. Suit was posted to 17.8.2001 for payment of balance court fee of Rs.56,358/- and then adjourned to 25.8.2001. On that day plaintiff was not present and the balance court fee was also not paid. The court therefore rejected the plaint by judgment dated 25.8.2001. Aggrieved by the said order plaintiff has approached this Court and filed the present appeal on 16.1.2003. An amount of Rs.10/- was paid towards court fee. Registry did not number the appeal since ad valorem court fee was not paid and post the same for curing the defects by paying court fee.

(2.) Counsel for the appellant however made the following notings since the rejection of the plaint is a decree as defined in S.2(2) of the CPC appeal is maintainable . Court fee paid is sufficient. May be send to the Court. Registry however, made the following remarks. The appeal is filed against the judgment and decree rejecting the plaint in OS.81/98. Since the decree is challenged in this A.S. valuation is to be shown as in the O.S. and the C.F. also has to be paid accordingly. The valuation in A.S. is Rs.8,57,550/-, but the C.F. paid is Rs.10/- as per Schedule.2 Art.3(iii)A(1) of C.F.Act. It seems the C.F. paid is insufficient and the appellant has to pay ad valorem court fee on the appeal valuation. Registry posted the case for curing defects noting ad valorem court fee to be paid. On the plaintiffs request matter was posted before the court.

(3.) The suit was valued at Rs.8,57,550/-. Under S.22 of the Court Fees Act in a suit for money (including a suit for damages or compensation or arrears of maintenance of annuities or of other sums payable periodically), fee shall be computed on the amount claimed. Accordingly an amount of Rs.62,620/- has to be paid as court fee. Plaintiff had paid in the court below only an amount of Rs.6262/- and the balance court fee payable was Rs.56,358/-. Counsel appearing for the appellant submitted if the entire ad valorem court fee is directed to be paid here and also in the court below he would be put to considerable prejudice. Plaint was rejected since the plaintiff could not raise sufficient funds to pay the court fee. In such situation, if the plaintiff is directed to pay ad valorem court fee, so as to consider his appeal, as to whether time could be granted to pay the ad valorem court fee in the suit, that will cause considerable prejudice to the party. Plaintiff will have to pay court fee again in the court below. Since the plaint was rejected under O.7 R.11(b) of the CPC there is no adjudication as to the subject mater of the suit. Hence we are of the view there is no justification in directing the parties to pay the ad valorem court fee. We overrule the objection of the registry and direct the registry to number the appeal. Needless to say if the appeal is allowed and the order of the court below is set aside plaintiff has to remit the court fee in the court below.