AMINA BEEVI V HAJI M Vs. MOIDU

JUDGEMENT

(1.) THE question raised is whether proper court fee has been paid on the memorandum of appeal filed in an appeal preferred under S. 5 of the Kerala High Court Act, 195e. THE suit which gave rise to this proceeding was laid by the appellant-plaintiff for realisation of an amount of Rs. 3,13e. 20 charged on the property scheduled to the plaint. Ad valorem court fee was paid on the amount claimed under S. 22 of the Kerala Court Fees and Suits Valuation act 10 of 1960 (for short the Act), in the trial court, in the first appellate court and in S, A. 11e2/1969 of this court. In the memorandum of appeal now under consideration, the valuation shown is the original claim, namely, Rs, 3,13e. 20. but the fixed court-fee of Rs. 10/- alone was paid relying on schedule II, Art. 3 (A) (2) (a) of the Act. THE Taxing Officer raised the objection that ad valorem court-fee is payable on the valuation shown under s. 52 of the Act.

(2.) THE relevant provisions of Art. 3 of Schedule II of the act is extracted below: "memorandum of appeal from an order inclusive of an order determining any question under S. 47 or S. 144 of the Code of Civil procedure, 190e, and not otherwise provided for when presented X X X X On the basis of the expression "where the appeal is under S. 5 of the Kerala High Court Act,. 195e " occurring in the opening part of cl. (2) and also the expression "in any other case" used in item (c) of cl. (2), it is contended on behalf of the appellant that as far as appeals under S. 5 of the Kerala High Court Act 195e are concerned. Art. 3 (A) (2) of Schedule II of the Act is the exclusive provision made by the legislature in the matter of levying court-fee. THE contention conveniently ignores the general scheme and other relevant provisions of Art. 3 of Schedule ii. THE opening paragraph of Art. 3 clearly shows that the entire article is intended to cover only appeals against 'orders' referred to thereunder. Consistent with that scheme items (a) and (b) of clause (2) refer only to 'order' and not to any 'judgment' or 'decree'. In the context in which it occurs the residuary provision contained is item (c) could be construed only as providing for 'orders' not falling within items (a) and (b ).

(3.) NO decision directly dealing with the controversy on hand was brought to our notice by either of the parties, and the cases cited by the learned counsel for the appellant were not of much assistance in resolving the dispute. Sree Kumaran Vasudevan v. Vasudevan Narayanan (1969 KLJ. 631) and st. Paul's Yakkobaya Suriyani Church v. Ithappiri (1971 KLT e71) were concerned with the scope of S. 5 of the Kerala High Court Act. In the former, the question raised was whether an order passed by a single judge on an application under s. 7 of the Kerala Act 31 of 195e for amending the decree could be appealed against under S. 5. The answer was in the affirmative. In the latter, the court held that no appeal lies under S. 5 against an order passed by a single judge disposing of a civil miscellaneous appeal preferred against an order of remand. In Ramanujam v, Forest Range Officer (1966-2 MLJ. 375) the Madras High Court held that on a memorandum of appeal presented by an accused in a criminal case against his conviction and sentence, court-fee should be paid under Art. 3 (1)not 11 (g) of Schedule II of the Madras Court Fees and Suits Valuation Act, 1955. It was observed that the word 'order' in the context of a criminal appeal should be taken to include a judgment leading to an order of conviction or acquittal and as such court-fee is payable under Art. 3 (1) of Schedule II. The decision rests mainly upon the circumstance that there is no definition of 'judgment' in the Code of Criminal Procedure, and consequently, that decision also is not of much assistance to the appellant. Art. 3 (A) (2) of Schedule II of the Act came up for consideration in Devassia v. State of Kerala (1965 KLT. 69 ). In that case an order passed in an original petition by a single judge was sought to be appealed against and the appellant paid court-fee of only Rs. 25/-which was the court-fee paid on the original petition. Objection was raised by the Taxing Officer to the effect that court-fee was payable under Art. 3 (A) (2)of Schedule II of the Act. The Taxing Officer's objection was upheld. Madhavan nair J. , held that if Schedule II of the Act is read as part of S. 21 in Chapter iv of the Act it would obviously be a particular provision, in relation to that in S. 52 which is general, in the matter of computation of court-fees on appeals in courts and the rule "specialia generalibus derogant" must apply between them. The learned judge also held that S. 52 of the Act applies only to cases where the court-fee is computed "on the subject matter of the appeal" and that it does not apply to proceedings that are charged with fixed fees, irrespective of the subject matter involved. It was further observed that there is thus no conflict between S. 52 and Schedule II of the act. M. S. Menon C. J. reached the same conclusion on a slightly different ground, namely, that in the context in which S. 52 occurs it may be that it has application only to appeals from the suits specified in S. 22. to 50, and if that be so, S. 52 may not perhaps apply, and the only remaining provision applicable may be Art. 3 (A) (2) of Schedule II. A reading of the decision shows that both the learned judges who decided the case proceeded on the basis that the case did not fall under S. 52 of the Act. Further, the question whether art. 3 (A) (2) of Schedule II applies to all appeals under S. 5 of the Kerala High court Act was not considered at all. The decision, therefore, does not specifically deal with the question raised in this case. On the other band, the observations made by M. S. Menon C. J. , may lend support to the view that S. 52 of the Act may apply to appeals from suits specified in S. 22 to 50.