Kerala High Court

Sankaran @ Jayasankar vs State Of Kerala on 11 January, 2023

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
         THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 11TH DAY OF JANUARY 2023 / 21ST POUSHA, 1944
                  WP(C) NO. 7018 OF 2014
PETITIONER/S:

         SANKARAN @ JAYASANKAR
         S/O.SREEDHARAN NAMBOODIRI,
         VENGERY MANAKKAL, THEKKE NADA,
         GURUVAYUR, NOW RESIDING IN SARADHI VILLA,
         PERUMBILAVIL LINE ROAD, GURUVAYUR.

         BY ADVS.
         SRI.V.V.ASOKAN (SR.)
         SRI.P.P.RAMACHANDRAN
         SRI.P.RAHUL

RESPONDENT/S:

   1     STATE OF KERALA
         REPRESENTED BY THE CHIEF SECRETARY,
         SECRETARIAT, THIRUVANANTHAPURAM-695 001.

   2     DEPUTY TAHSILDAR (RR)
         TALUK OFFICE, CHAVAKKAD, THRISSUR-680 001.

   3     THE ADMINISTRATOR
         GURUVAYUR DEVASWOM, GURUVAYUR-680 101.

   4     THE REGISTRAR GENERAL
         HIGH COURT OF KERALA, ERNAKULAM-682 031.

OTHER PRESENT:

         R1 AND 2 - SRI.JOBY JOSEPH,SENIOR GOVERNMENT
         PLEADER


     THIS WRIT PETITION    (CIVIL) HAVING COME UP       FOR
ADMISSION ON 11.01.2023,   THE COURT ON THE SAME        DAY
DELIVERED THE FOLLOWING:
    W.P(C).7018/2014
                                  2



                           JUDGMENT

Dated this the 11th day of January, 2023

This writ petition is filed by the petitioner seeking to quash

Exhibit P2 and P2(a) demand notices issued under Section 7 and

34 of the Kerala Revenue Recovery Act, 1968. The demand

notices are issued on the basis of 1/3 rd Court fee alleged to be

due from the petitioner, who was the appellant in LAA

No.629/2011, as an indigent.

2. Brief material facts necessary for the disposal of the

writ petition are as follows:

Challenging order of the Sub Court, Thrissur, enhancing the

compensation payable to the petitioner in part, in LAR. No.89 of

2006 dated 30.8.2008, petitioner has preferred an appeal and

sought permission to sue as an indigent person under Order

XXXIII of the Code of Civil Procedure. Apparently, the said

application was allowed and later the appeal was numbered as

LAA No.629 of 2011. However when the appeal came up for

admission on 8.2.2013, learned counsel for the appellant sought

permission to withdraw the appeal and on the basis of the same, W.P(C).7018/2014

Exhibit P1 judgment was passed by a Division Bench of this Court

dated 8.2.2013 , which reads thus:

"The learned counsel for the appellants submits that the appellants do not wish to prosecute this appeal any further. Accordingly they are dismissed as not pressed."

It was to recover 1/3rd court fee that is to be paid on account of

the appeal, that Exhibits P2 and P2(a) are issued by the Revenue

Authorities.

3. Heard learned Senior counsel for the petitioner Sri V.V.

Asokan, learned Senior Government leader Sri Joby Joseph, and

perused the pleadings and material on record.

4. Various contentions are raised by the petitioner

including the contention that in view of the State amendment to

the provisions of Order XXXIII Rule 11 of the Code of Civil

Procedure incorporating 'may' instead of 'shall', the court is left

with the liberty either to direct to pay court fee or to exempt the

petitioner from payment of the court fee, when the appeal

proceedings were terminated. But in the instant case no

direction was issued to recover the court fee and therefore the

action initiated to recover the 1/3 rd court fee is bad and illegal is

the contention.

W.P(C).7018/2014

5. Learned counsel has relied upon the judgment of a

Division Bench of this Court in Joseph v. Kerala State Electricity

Board & Another [2012 (4) KHC 753 (DB)], to canvas that

proposition. Relevant portion of the said judgment reads thus:

"2. On a deeper examination, we see that the precedents on the basis of which R.V. Dev was decided were those rendered by this court and different other High Courts before 1992, the latest among them being Andrew v. State of Kerala ((1991) 2 KLT 724).

3. Search by one among us, P. Bhavadasan J., has brought to the notice of this Bench that by notification No. D1(A)-43450/86 dated 13th January, 1999 published in Kerala Gazette dated 27th April, 1999, Rule 11 of Order 33 of the Code of Civil Procedure, "CPC", for short, was amended subsisting the word 'shall' occurring after clause (b) thereof by the word 'may'. The object sought to be achieved by that amendment is to enable the court to exercise its discretion as to whether an indigent person should be exempted or not, from payment of court-fees in all the circumstances of the case. Such amendment was made on the recommendation of the High Court that appropriate amendment to such effect needs to be made to effectuate the Directive Principles of State Policy as contained in Article 39A which provides that the State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

4. Unfortunately, the aforesaid amendment to C.P.C., which is a piece of primary legislation, is not seen to have been brought to the notice of this Court during submissions and arguments that led to the precedent;

W.P(C).7018/2014

R.V. Dev (supra). That case has been decided without noticing the binding statutory provisions as they stood even then. Therefore, to the extent that judgment tends to indicate that every plaintiff or appellant who loses any part of the plaint claim or claim in appeal has to suffer the court-fee for such lost portion, is contrary to the statutory provision contained in Order XXXIII Rule 11 CPC as amended as per the afore-noted notification. Decisions giving in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court concerned are per incuriam. This is so because, some part of the decision or some step in the reasoning on which it is based, is found, on that account, to be demonstrably wrong. It is a settled rule that if a decision has been given per incuriam, it does not provide any ratio decidendi to be followed with any value as a precedent. The Court can ignore it. See for support A.R.Antulay v. R.S.Nayak. Hence, R.V.Dev to the afore-noted extent is per incuriam.

5.Contextually, it is worthwhile to note the Division Bench decision of this Court in Andrew (supra) that having regard to the provision in Rule 12 of Order XXXIlI, recovery of amount of court-fees by the Collector in terms of Rule 14 could be had only in cases where a party is ordered to pay court-fee in terms of Rule 10, 11 or 11A of Order XXXIII, as the case may be. The last limb of Rule 11 of Order XXXIII is not a compulsion on the Court to pass an order for payment of court-fee. In any view of the matter, by the amendment as per the notification noted above, the matter falls within the discretion of the Court and the compulsion could be only to the extent of requiring the Court to consider and pass an order as to payment of court-fee. This includes fair amount of discretion, having regard to the totality of the facts and circumstances of each case, to direct whether the party has to pay the court-fee; whether court-fee has to be paid at least proportionate to the success; or, even whether any court-fee is payable at all. This is the pearl of wisdom which we see in the amendment made by the W.P(C).7018/2014

notification which stands with the gaze of Article 39A of the Constitution as noted above.

6. With the aforesaid, we proceed to look at the facts of the case in hand. Plaintiff sued the Kerala State Electricity Board for damages on account of fire which broke out as a result of short circuit. Board was held liable. Quantum of damages ultimately fixed by this Court in appeal is only Rs. 30,000/-. In our view, it would be a travesty of justice to compel the plaintiff in such a case to pay court-fee for the balance amount. Having regard to the order of costs already imposed, the liability to pay court-fee for the amount of Rs. 30,000/- will be on the KSE Board. It is directed to pay such court- fee failing which it will be open to the Collector concerned to initiate steps on appropriate certification. No court-fee is leviable on the balance amount. The appellant-plaintiff is exempted from paying court-fee on this appeal and in the Court below. It is so ordered in exercise of authority as noted above.

Ordered accordingly."

6. On a reading of the said judgment, one could gather that

the contention advanced by the petitioner in the writ petition is

to be accepted and the proceedings pertaining to Exhibit P2 and

P2 (a) demand is to be quashed. However, learned counsel

submitted that on a later probe into the matter it is seen that

the judgment in Joseph's case (Supra), may not be a correct

preposition of law, in view of the Full Bench judgment of this

Court in Sivaraman and Another v. Suresh [2022 (3) KHC 530]

where the amendment made to Rule 11 was considered and

finally held that the State amendment is not sustainable under W.P(C).7018/2014

law. In that view of the matter, I do not think the reliance made

by the petitioner in Joseph's case (supra) survives at all in order

to drive home the point that Exhibit P2 series of demand raised

by the Revenue Authorities is bad, arbitrary and illegal.

7. Anyhow, learned counsel further invited my attention to

Rule 12 of Order XXXIII of Code of Civil Procedure dealing with

'State Government may apply for payment of court fees', which

states that the State Government shall have the right at any time

to apply to Court to make an order for payment of court fee

under Rule 10, Rule 11 or Rule 11(a) of CPC.

8. Learned counsel has also invited my attention in that

regard to Division Bench judgment of this Court in Andrew v.

State of Kerala [1991 KHC 493], wherein a similar question was

raised and held as follows:

"2. The appellant in the appeal was also the appellant in a first appeal, AS 69 of 1991 on the file of this Court. The appellant had filed that appeal as an indigent person. The court Fee payable on the memorandum of appeal was Rs.12,62,680/-. The appeal suit was dismissed by a Division Bench of this court on 5-2-1991. Ext.P2 is a copy of the decree. Admittedly, there is no direction in the decree that the court fee is to be recovered by the government under provisions of the Revenue Recovery Act or by any other method. Even so, the respondents have sought to take W.P(C).7018/2014

proceedings against the appellant for recovery of the same. Appellant, therefore, approached this court and filed a writ petition contending that unless and until an order is passed under R.12 of Order XXXIlI CPC by the Court, the amount cannot be recovered, under R.14.

3. We have issued notice to the government and heard learned Government Pleader also.

4. Having regard to the provisions of Order XXXIII R.12 C.P.C. we are of the view that the respondents should be restrained from recovering the above said sum of Rs.12,62,680/- from the appellant till such time as the respondents approach this court in the above said Appeal Suit and obtain an order under Order XXXIII R.12 C.P.C. in regard to payment of court fee under R.10, 11 or 11(a) of Order XXXIII, as the case may be. It is only then that R.14 of Order XXXIll shall come into play.