M NARAYANA SHETTY Vs. KRISHNAMMA

JUDGEMENT

(1.) This matter has come before us on a reference by Justice R. Bhaskaran. The Second Appeal is filed against the judgment and decree in A. S. No. 114 of 1995. That appeal was filed against O. S. No. 152 of 1988 of the Munsiffs Court, Kasaragod. During the course of appeal, the first respondent in the Second Appeal, Krishnamma died on 19.10.2000. Petitioner appellant filed C. M. Ps. for impleading the legal representatives, to set aside abatement and to excuse the delay in filing the application. In all these applications, the petitioner had paid Rs. 2/- as court fee. So far as the payment of court fee on these applications are concerned, it is contained in Schedule II, Art.11(t). That Article says that application or petition presented to the High Court and not otherwise specifically provided for Rs. 2/-. There was an amendment of the Court Fees Act by Ordinance 8 of 2002. This is repealed by the Kerala Court Fees and Suits Valuation (Amendment) Act, 2003 came into force on 25th October, 2002. By that Amendment Act, various amendments were made.

(2.) As already stated, the appellant paid the court fee as it stood before the Amendment Act, 2003. The Office submitted that the court fee has to be paid on the basis of the amendment. In these circumstances the matter came before this Court. The question is whether court fee is to be paid as per the amended provisions.

(3.) Learned counsel for the petitioner submitted that the court fee has to be paid as it stood before the Amendment Act, 2003 as the suit was instituted earlier. The contention of the petitioner is that under S.52 of the Court Fees Act, the court fee payable on the memorandum of appeal is as in the Court of first instance. Learned counsel submitted that S.87(2) of the Court Fees Act (Act 10 of 1960) indicates that the court fee in all proceedings before the commencement of the Act has to be paid as per the earlier law and not under the 1959 Act. Further it is submitted that if the amendment is allowed, that will cause great difficulties because in many cases, the court fee on the appeal itself will be less than Rs. 10/-.