ARUMUKHAM Vs. THANUMALAYA ARAYAR

JUDGEMENT

(1.) The question raised in this Reference is whether on account of the increase in court fee brought about the Travancore Cochin Court Fees Act, 1125, an application filed thereafter for review of a judgment in an appeal filed while the Travancore Court Fees Act VI of 1087 was in force, court fee should be levied at the enhanced rate or only on the basis of the rate fixed by the repealed Act. The decision must depend upon whether the word 'leviable' in Art.4 and Art.5 of the Sch. 1 of the Court Fees Act has reference to the time when the plaint or memorandum of appeal was filed or to the time of the presentation of the application for review. Since this Reference was made, a Division Bench of this Court had occasion to pronounce upon the question and the answer given there is that the relevant date is the date of the presentation of the petition: Soosa Chettiar v. Kurusu Nadar ( 1952 KLT 382 ). In view of the pronouncement there the petitioner's learned counsel did not seek to contend before us that court fee need be levied on the petition only at the old rate. In that case the Division Bench followed the decision in Punniva Nahako In Re (1927) ILR 50 Madras 488, where the Madras High Court had held that if between the date of the plaint or the appeal and the date of filing the petition for review, there has been a change in the Court Fees Act increasing the fee payable ad valorem the petitioner must pay at the increased rate. We are in agreement with the reasoning and conclusion of the order in that case and as no argument was urged before us to take the contrary view, we do not feel called upon to embark upon an examination of the conflicting rulings on the point. We reaffirm the view the Division Bench of this Court took in 1952 KLT 382.

(2.) It should not however be omitted to mention that a passing reference was made at the bar to a recent order of a Division Bench of the Madras High Court. An abstract of the order is seen reported as R. M. Sheshadri v. Province of Madras at page 37, Short Notes, 1953 (II) MLJ. There it was held that notwithstanding an enhancement in the rate of court fee pending a suit, the party preferring an appeal against the decree passed in the suit need only pay the court fee payable on the appeal at the time when he instituted the suit. Neither the text of the order nor the amended R.1 of the High Court Fees Rules on which the order is based, is before us. While we respectfully agree that the right of appeal is a substantive right we feel loath to extend the principle to all matters connected with the institution or hearing of the appeal. There is no vested right in matters of procedure. Vide Sankaranarayana Panicker v. Narayana Panicker, 1952 KLT 339 .

(3.) The Reference is answered in the manner indicated in paragraph one supra, that is, the petitioner should pay court fee on the Review Petition on the basis of the rate prevailing on the date of its presentation. Order accordingly.