TATABBAYI Vs. STATE

JUDGEMENT

(1.) The plaintiff is the appellant. He filed O. S. No. 449 of 1952 on the file of the District Munsif's Court, Kakinda for recovery of Rs. 1,062-13-3 due on four promissory notes. As the amount claimed in respect of each of the promissory notes was less than Rs. 500/-, he paid court-fee on the amount of each of the promissory notes under Article 2 of Schedule 1 of the Court Fees Act. The District Munsif granted a decree in his favour but the decree was reversed in appeal. The plaintiff has consequently filed this Second Appeal. The plaintiff-appellant has paid court-fee on the memorandum of appeal as in the trial court on the Small Cause scale under Article 2 Schedule I of the Act. The office having raised an objection that the court-fee should be paid under Schedule I Article 1 of the Court Fees Act, the matter was placed before me and I gave notice to the Government Pleader.

(2.) Sri Venkataramanamurty on behalf of the appellant contended that the court-fee paid by him is proper. He relied on the terms of section 17 of the Court Fees Act which enacts that where a suit embraces two or more distinct subjects, the plaint or memorandum of appeal shall be chargeable with the aggre gate amount of the fees to which the plaints or memoranda of appeal in suits embracing separately each of such subjects would be liable under this Act, The decision in The Secretary of State for India in Council v. Ayyasami Chettiar relied on by him does not assist him. Venkatasubba Rao J. held that the claim in regard to Rs. 600/-was governed by Art. 1 of Sch. I, and the claim in regard to Rs. 400- was governed by Art. 2. The learned Judge did not decide that the the fee payable on the memorandum of appeal was governed by Article of Schedule I. Similarly in Parshotam Lal v. Lachman Das, the Allahabad High Court held that each hundi afforded a separate cause of action, that the suit embraced thr.ee separate and distinct subjects and that the memorandum of appeal by the first defendant was chargeable with the aggregate amount of the court-fee to which the memoranda of appeal in suits embracing separately each of such subjects would be liable under the Court-Fees Act.

(3.) The question that arises for decision in this case has. therefore, to be considered on the language of Articles 1 and 2. Article 2 prescribes the Court-fee payable on a plaint presented to a court outside the Presidency Town in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter does not exceed Rs. 500/-. There is no reference to a memorandum of appeal in Article 2 as the decree passed in a suit covered by Article 2 is not appealable. The Article which deals with memorandum of appeal is Article 1. It provides for the payment of court-fee in respect of a plaint, written statement pleading a set off or counter-claim as also memorandum of appeal presented to any Civil or Revenue Court. So, when the plaintiff presents a memorandum of appeal, he has to necessarily pay court-Fee under Article 1. The argument of Sri Venkataramanamurty is that the cpurt-fee payable on the memorandum of appeal ought to be the same as that payable on the plaint. Generally it may be so but, in the absence of the words "memorandum of appeal" in Article 2, 1 am not prepared to accept his argument. He is bound to pay court-fee on the memorandum of appeal under Article 1 as prescribed therein.