P V DEVASIA Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS is a reference made by the Taxing Officer of this court as to the sufficiency of court-fee of Rs. 25/-paid on a writ appeal preferred under S. 5 of the Kerala High Court Act, 1958 (Act V of 1959 ).

(2.) S. 21 in Chapter IV of the Kerala Court-Fees and Suits valuation Act, X of 1960, (hereinafter called the Act) prescribes: "fee how reckoned.- The fee payable under this Act shall be determined or computed in accordance with the provisions of this chapter, Chapter VI, Chapter IX and Schedules I and II. " And Schedule II of the Act, in its Art. 3 (iii) (A) (2) provides: According to the Taxing Officer, the court-fee payable on this appeal is Rs. 100 as per (c) in the above provision. Counsel for the appellant relies on S. 52, the last section in Chapter IV of the Act, which reads: Appeals : - The fee payable in an appeal shall be the same as the fee that would be payable in the Court of first instance on the subject-matter of the appeal: '. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . and contends that the fee payable on a writ petition being Rs. 25/- under Art. 11 (r) of Schedule II of the Act, the Art. 3 (iii) (A) (2) (c), requiring a fee of Rs. 100 for a writ appeal, is inconsistent with S. 52 and that in cases of such inconsistency the schedule must yield to the section in the body of the Act. The learned Advocate-General urges that S. 52 is a general provision for all appeals, whether in suits, in original petitions, or in interlocutory applications, while Art. 3 (iii) (A) (2)relates to a particular category of appeals, viz. , appeals under S. 5 of the kerala High Court Act, and that the rule of construction is always that a particular provision prevails over a general one within the limits of the former. Shri. K. P. Ramunni Menon, as amicus curiae, pointed out that S. 52 by its own expression applies only to cases where the court-fee depends on, and therefore varies with, the subject-matter of the appeal and that a writ appeal not being of that category is outside the purview of the Section to be governed by Art. 3 (iii) (A) (2) only.

(3.) THE identical question appears to have been raised before the Andhra Pradhesh High Court, though not in regard to writ appeals, in ediga Muniyya v. THE State of Andhra Pradesh 1961- II Andhra W. R. 113 and messrs. Chemicals, Ltd. , Nidadavole v. Messrs. Raka Corporation (Private) Ltd. , 1963 - II Andhra W. R. 124. In both the cases the provision in Art. 3 of Schedule ii was held to prevail over S. 49 of the Andhra Pradesh Court-Fees Act, which corresponds with S. 52 of the Kerala Court Fees and Suits Valuation Act.