PAIDIPATI DHANAMMA Vs. MOUTUPALLI SIVA RAMA PRASAD

JUDGEMENT

(1.) TWO questions fall for consideration in this SR. The first question is whether a Letters Patent Appeal lies against an order passed by the learned single Judge directing that the appellant herein should pay additional court fee the cross-objections which are filed in this First Appeal. The second question is as to the court fee payable in this L P A against the above said order. So far as the first question, is concerned the maintainability of the appeal has to be decided in the light of the principles laid down by the Supreme Court in Shah Babulal Khimji Vs. Jayasen AIR 1981 SC 1786. The said judgment has been explained in detail in the recent judgment of this Court in Government of A P Vs. B Sathaiah 1991 (1) APLJ 306 = 1991 (1) ALT 496 decided by us. There we held that if the order of the learned single Judge is allowed to stand and if it would ultimately result in the dismissal of the appeal or cross-objections then it would amount to a judgment. In Sathaiah's case decided by us the question related to an appeal preferred against an order refusing to condone delay under Sec. 5 of the Limitation Act. We pointed out that if the delay is not condoned by the learned single Judge the appeal also would necessarily have to be consequently rejected and that therefore the order refusing to condone delay would be appealable as a 'Judgment' within the meaning of the said expression in Clause 15 of the L P A. On the same analogy an order demanding payment of additional court fee would also result in rejection of the appeals or cross-objections as the case may be if the said order is not complied with. Therefore such an order would be appealable under clause 15 of the L P A. Following the principles laid down by the Supreme Court in Shah Babulal (1) cited supra as well as the principles laid dowa by us in the above said decision viz B Sathaiah's case (2) we hold that a Letters Patent Appeal lies against an order demanding additional court fee from the appellant or from the cross- objector in a First Appeal.

(2.) THE next question is as to the court fee payable in this L P A. THE dispute in this L P A is limited to the question of court fee payable on the memo of cross-objectioas. Where the subject matter of an appeal is the difference in the court fee paid and the court fee demanded the court fee payable would be on the disputed amount of court fee. See : the decision in Kalliappa Vs. Kandaswamy (AIR 1938 Madras 498) in the present case, the court fee, payable according to the order of the learned single Judge will be Rs,.2,546/- while the court fee paid is Rs. 300/-. THE disputed amount of Cuort fee is Rs. 2,246/-. Treating the said amount of Rs, 2 246/- as the disputed amount and as being the subject matter of the L P A the court fee payable in the L P A will be Rs, 208-50 Ps. We accordingly held that the L P A is maintainable and that if the appellant, will pay a sum of Rs. 208-50 the appeal will be registered.