EDIGA MUNIYYA Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) The question raised in this reference is as to the Court-fee payable in the Memorandum of Appeal against an Order passed in a Civil Miscellaneous Petition pending disposal of a petition under Article 226 of the Constitution. A Memorandum of Appeal was filed under clause (15) of the Letters Patent against the Order passed in C.M.P. No. 4792 of 1959 with a Court-fee of Rs. 2. When the Office required the petitioner-appellant to pay a Court-fee of Rs. 100, several objections were raised. Therefore, the matter was posted before Court. When it came up before Krishna Rao, J., he referred it to a Division Bench as the constitutional validity of the fee of Rs. 100 prescribed by Article 3, sub-rule (iii) (a) (2) (b) of Schedule II of the Andhra Court-Fees and Suits Valuation Act (VII of 1956) was attacked.

(2.) It is urged by Sri Chowdary, learned counsel for the petitioner-appellant, that Article 3 sub-rule (iii) (A) (2) (b) of Schedule II is not attracted to appeals of this description, as it is section 49 of the Court-fees Act that governs them. In order to appreciate this contention, it is necessary to read section 49 as also the relevant Article of Schedule II. Omitting the unnecessary portions, section 49 is in these words : "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 : * * * * * * Article 3 of Schedule II recites :

(3.) The argument presented by Sri Chowdary on the basis of the language of Article 3 is that appeals filed against such orders are excluded from the purview of this Article because they are governed by section 49 and that only appeals not covered by that section fall within the sweep of this Article. We are unable to assent to this proposition. In our opinion, the expression ' not otherwise provided for when presented ' can have application only to provisions made in Schedule II and has no reference to section 49. If the arguments of Sri Chowdary were to prevail, Article 3 would be redundant, nay, repugnant to section 49, because every kind of appeal falls within the ambit of section 49. Therefore, there could be no scope for attracting Articles 3 and 4. Moreover, if section 49 is made applicable to an appeal from any order or decree, Article 3 would not come into play in any case. Therefore there will be no appeal which would attract the Article in question. In that position, on every memorandum of appeal filed against any order, Court-fee has to be paid on the basis of the fee paid on the petition in the trial Court. If so, on appeals against orders made under section 47, Civil Procedure Code, etc., Courtfee as chargeable under Article 2, clause (i) of Schedule II alone would have to be calculated and not as contemplated under this Article. But, so far, no such proposition has ever been put forward. Though Sri Chowdary does not contend for that position, that would be the effect of the acceptance of his argument.