FR ANTONY Vs. CLARIAT AND CONVENT E SOCIETY

JUDGEMENT

(1.) Petitioner in O.P. (LA) No. 113 of 1994 on the file of the court of the District Judge, Alappuzha is the revision petitioner. That was an application filed by the petitioner herein under S.276 and 278 of the Indian Succession Act, praying for issuance of Letters of Administration in relation to the Will dated 11.4.1993 executed by one Fr. Varghese Chathaparambil. Petitioner was one of the legal heirs of the testator and respondents 1 and 7 to 10 are stated to be the legatees under the Will. The testator died on 9.5.1993. Since the Original Petition was contested, the same was converted into a suit and registered as O.S. 1/1994 on the file of the District Court. The plaintiff had paid 1/10th of the court fee on the total value of the assets covered by the Will. Some of the defendants had filed written statement in the suit. In the meanwhile, the parties to the suit arrived at a settlement among themselves which rendered it unnecessary to prosecute the Letters of Administration in regard to the Will executed by the testator. This fact was reported by the counsel for the plaintiff before the Court with a prayer to strike off O.S. 1/1994 from the files. Finding that the matter is settled out of court between the parties at this juncture, the court on its own posted the matter for considering the question as to whether the plaintiff should be directed to pay the remaining court fee calculating the same on an ad valorem basis on the value of the assets scheduled to the petition for Letters of Administration. It was contended on behalf of the plaintiff that the court cannot compel any of the parties to pay the balance court fee and at any rate, if the court finds that sufficient court fee has not been paid, then, the plaint ought to be returned in terms of O.7 R.11 CPC since the parties are not seeking any adjudication by the Court. Despite the said contention, the court proceeded to pass an order on 29.8.1997 directing that the balance court fee computed on the valuation given in the petition for Letters of Administration will have to be paid. Subsequently, the court passed an order on 29.9.1997 directing that steps under the Revenue Recovery Act may be taken for realisation of the court fee payable on the valuation of the assets described in Schedule.1 of the Letters of Administration. Accordingly, a warrant was directed to be issued against the plaintiff. Steps under the Revenue Recovery Act have been initiated against the petitioner for recovery of an amount of Rs. 90,034/- and notice under the Revenue Recovery Act has also been issued in this regard on 16.10.1997 and the same is being prosecuted. The revision is directed against the orders of the court below passed on 28.8.1997 and 29.9.1997 as illegal and without jurisdiction.

(2.) Heard learned Government Pleader at length. Notice to respondents dispensed with at the risk of the revision petitioner. Since payment of court fees is a matter between the person who invokes the jurisdiction of the Court and the State, there is no reason why the defendant or the opposite party should also be given an opportunity to be heard.

(3.) The question that arises for consideration in this case is whether in the face of the settlement arrived at between the parties at the threshold, the Trial Court was justified in issuing the impugned orders directing the plaintiff to pay the remaining part of the court fee and on his failure to do so directing steps for revenue recovery by issuing recovery warrant to the District Collector. The reasoning of the court appears to be that notwithstanding the out of court settlement arrived at between the parties, the plaintiff should nevertheless pay the balance court fee payable on the suit which has been registered as such on conversion of the petition for Letters of Administration. It is, no doubt, contended that it is a case where the parties do not want a further adjudication and where the lis ceases to exist and the legatees under the Will accepted the Will as the last Will and testament of the testator. In other words, it is a case where no Letters of Administration is necessary, the validity of the Will being beyond dispute, the Will having been accepted as the last Will and testament of the testator under the Will. The grounds stated in support of the order dated 28.8.1997 are as follows: