KALLIAPPA GOUNDAN Vs. KANDASWAMI GOUNDAN

JUDGEMENT

(1.) In the lower appellate Court the plaintiff, who was the appellant, paid as court-fee on his memorandum of appeal Rs. 100. The District Judge held that the correct fee payable was Rs. 412-7-0. The appellant failed to pay the deficit court- fee and the appeal was dismissed. From the dismissal he filed a second appeal in this Court, which he valued at Rs. 312-7-0, being the difference between Rs. 412- 7-0 and Rs. 100. On that valuation he paid a court-fee of Rs. 35-15-0. Madhavan Nair, J., holding that on the second appeal the proper fee payable was Rs. 412-7- 0, directed the appellant to bring into Court the balance of Rs. 376-8-0. This order was not complied with and the second appeal was dismissed.

(2.) The question we have to decide is, what was the subject-matter in dispute in the second appeal? A possible argument that the subject-matter is incapable of valuation and that therefore Schedule II, Art. 17-B applies, may be at once dismissed. Mr. Srinivasa Aiyangar who appears for the Government Pleader does not put forward any such contention; nor has it found favour in any case dealing with this subject.

(3.) The provision then that is applicable is Art. 1, Schedule I of the Court-Fees Act. In such a case as this, what is the subject-matter in dispute within the meaning of that article This point has been fully considered in a valuable judgment of Schwabe, C.J., which unfortunately has not been reported and to which the learned Judge's attention was not called. "I think", observes Schwabe, C.J., "that the subject-matter in dispute, meaning the subject-matter in dispute in appeal, has the simple meaning applicable to this case, namely, the amount of stamp in dispute between the parties". (S.R. No. 1923 of 1923.) This view receives support from a case decided so far back as in 1882 Durga Prasad V/s. Rughubar Dial (1882) M.W.N. 244, The Court-Fees Act is a taxing statute and it is settled law that the intention to impose a charge upon the subject must be shown by clear and unequivocal language. (Mr. Viswanatha Aiyar's Court-Fees Act, pp. 4 to 9.) If two constructions of a fiscal enactment are equally possible and reasonable, the construction more favourable to the subject must be enforced. See Ramaswami Chettiar V/s. Commissioner of Income-tax (1928) 56 M.L.J. 141 at 150 (F.B.). What then is the subject-matter of the appeal? According to Schwabe, C.J., the dispute in the lower Court had reference only to the court-fee payable; the difference between the court-fee paid and the court-fee demanded is the matter in dispute in the second appeal. That seems to be the natural and plain meaning of the words and it would be wrong to put a forced construction on the language. The alternative contention is that the subject-matter in dispute is the subject-matter of the suit itself. In the differing judgments in Ganpati V/s. Venkatesh A.I.R. 1935 Nag. 83 (F.B.), the two rival views have been fully expounded. In my opinion the view taken by Niyogi, A.J.C., is, with all respect, the sounder one. As he points out, the rejection of a plaint means only a refusal to entertain the suit and can in no case imply a conclusive determination of the rights of the parties. Order 7, Rule 13, Civil Procedure Code, which provides that the rejection of a plaint, inter alia, for failure to pay the deficit court-fee, shall not preclude the plaintiff from presenting a fresh plaint, lends support to that view. As pointed out in his judgment, granting that the rejection amounts to a decree within the meaning of the Code, it is difficult to see how it affects the question of court-fee. The question that still has to be determined is, what is the subject-matter in dispute? As already said, I see no reason why these words should not receive their natural meaning. The Letters Patent Appeal is allowed with the plaintiff's costs to be paid by the defendant. The second appeal is restored and must be heard. We make an order expediting its hearing. This being a pauper appeal, no question of refund of court-fee on the Memorandum of Letters Patent appeal arises. Abdur Rahman, J.