Kerala High Court

Annie Cherian vs Geetha Susan George on 3 September, 2024

Author: Anil K.Narendran

Bench: Anil K.Narendran

                                    1 / 14

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                                     &
               THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
          Tuesday, the 3rd day of September 2024 / 12th Bhadra, 1946
                       RFA NO. 141 OF 2024(FILING NO.)
OS 3/2019 OF ASSISTANT SESSIONS COURT/PRINCIPAL SUB COURT / COMMERCIAL COURT,
                             ALAPPUZHA, ALAPPUZHA
 APPELLANT(S)/PLAINTIFF:

      ANNIE CHERIAN AGED 60 YEARS W/O THOMAS SHANTI, 2/216A, PBK. MAINA
      ROAD, VAZHAKALA, KANAYANNUR TALUK, ERNAKULAM DISTRICT., PIN - 682021

    BY ADVS.V.N.SANKARJEE,V.N.MADHUSUDANAN,R.UDAYA
    JYOTHI,M.M.VINOD,M.SUSEELA,KEERTHI B. CHANDRAN,VIJAYAN PILLAI
    P.K.,C.PURUSHOTHAMAN NAIR,SINEESH K.M.,SHILPA P.S.,
RESPONDENT(S)/ADDITIONAL DEFENDANTS 2 TO 5:

   1. GEETHA SUSAN GEORGE, AGED 65 YEARS W/O G. GEORGE SHANTI @ GEORGE
      SHANTI GEORGE, P.A. GEORGE & CO., P.O. BOX NO. 3821, CHURCH ROAD,
      ALAPPUZHA (FROM SHANTI BHAVAN, ALAPPUZHA VILLAGE, THIRUVAMPADI MURI,
      ALAPUZHA-1), PRESENTLY RESIDING AT 'SITHARA', VCSB ROAD, YMCA SOUTH
      JUNCTION, ADJACENT TO EAST OF PAUL MURICKEN PETROL BUNK, ALAPPUZHA.,
      PIN - 688011
   2. P. ASHOK GEORGE AGED 42 YEARS S/O GEORGE SHANTI, GRACE VILLA, CULLEN
      ROAD, DUTCH SQUARE, WESTERN SIDE, SEA VIEW WARD, ALAPPUZHA - 688012
      (FROM 'SITHARA', VCSB ROAD, YMCA SOUTH JUNCTION, ADJACENT TO EAST OF
      PAUL MURICKEN PETROL BUNK, ALAPPUZHA - 688 011), REPRESENTED BY HIS
      POWER OF ATTORNEY HOLDER, GEETHA SUSAN GEORGE, PRESENTLY RESIDING AT
      'SITHARA', VCSB ROAD, YMCA SOUTH JUNCTION, ADJACENT TO EAST OF PAUL
      MURICKEN PETROL BUNK, ALAPPUZHA , EMAIL ID: [email protected],
      PIN - 688011
   3. ARUN GEORGE AGED 40 YEARS S/O GEORGE SHANTI, GRACE VILLA, CULLEN
      ROAD, DUTCH SQUARE, WESTERN SIDE, SEA VIEW WARD, ALAPPUZHA - 688012
      (FROM S/O GEORGE SHANTI, GRACE VILLA, CULLEN ROAD, DUTCH SQUARE,
      WESTERN SIDE, SEA VIEW WARD, ALAPPUZHA - 688012 (FROM SITHARA', VCSB
      ROAD, YMCA SOUTH JUNCTION, ADJACENT TO EAST OF PAUL MURICKEN PETROL
      BUNK, ALAPPUZHA - 688 011), REPRESENTED BY HIS POWER OF ATTORNEY
      HOLDER, GEETHA SUSAN GEORGE. PRESENTLY RESIDING AT 'SITHARA', VCSB
      ROAD, YMCA SOUTH JUNCTION, ADJACENT TO EAST OF PAUL MURICKEN PETROL
      BUNK, ALAPPUZHA, EMAIL ID: [email protected], PIN - 688011
   4. P.A. GEORGE & CO. P.O. BOX NO. 3821, CHURCH ROAD, ALAPPUZHA,
      REPRESENTED BY ITS MANAGING PARTNER: DEFENDANT NO. 2 GEETHA SUSAN
      GEORGE. EMAIL ID: [email protected], PIN - 688011


     This Un.Numbered Regular first appeal---/2024 (Filing.No.141/2024)
having come up for orders on 03.09.2024, the court on the same day passed
the following
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ORDER

RFA (Filing) Nos.141 & 142 of 2024

"CR"

ANIL K. NARENDRAN & HARISANKAR V. MENON, JJ.

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R.F.A. (Filing) Nos.141 and 142 of 2024

---------------------------------------------------------------

Dated this the 03rd day of September, 2024

ORDER

Harisankar V.Menon, J.

These Regular First Appeals are filed by the plaintiffs in OS

No.3 of 2019 and O.S.No.5 of 2019 on the files of the Sub Court,

Alappuzha, instituted by them for settlement of accounts. The

suits have been dismissed by the judgments and decrees dated

27.02.2024 and 26.02.2024 respectively. Aggrieved by those

judgments and decrees, the plaintiffs filed the captioned appeals

under Section 96 read with Order XLI Rule 1 of the Code of Civil

Procedure, 1908.

2. Registry of this Court has noticed defects in the filing of

these appeals with respect to its maintainability and the court fee

paid. Registry noticed that as per the decree in the suit, it was

valued at Rs.1,000/- and therefore, directed the appellants to

clarify whether the remedy of RFA before this Court is a proper

RFA (Filing) Nos.141 & 142 of 2024

one. It is further pointed out by Registry that the court fee paid

before the trial court was insufficient.

3. The learned counsel for the appellants has replied that the

suits were valued at Rs.50 lakhs and Rs.1 Crore respectively, and

therefore, this Court is having jurisdiction in respect of the present

appeals under Section 12 of the Kerala Civil Courts Act, 1957.

4. Registry has directed the matter to be placed before the

Bench in the above circumstances.

5. We have heard the learned counsel appearing for the

appellants herein.

6. The learned counsel for the appellants pointed out that

the suit was valued at Rs.50 lakhs and Rs.1 Crore respectively and

for the purpose of payment of court fee under Section 35 of the

Kerala Court Fees and Suits Valuation Act, 1959 (for short, the

'Court Fees Act'), Rs.1,000/- was adopted and the court fee paid

thereon. He also pointed out that the actual court fee to be paid

can only be determined on settlement of accounts and invited the

attention of this Court to the provisions of Section 35 of the Court

Fees Act and the undertaking given before the trial court to the

effect that the plaintiffs would pay the balance court fee on

RFA (Filing) Nos.141 & 142 of 2024

settlement of the accounts and fixing the actual amount due to

the plaintiffs. The learned counsel also referred to the judgment

of this Court in M.P. Mariyan v. K.K. Narayanan [1974 KLT

194] and that of the Apex Court in Subhash Mahadevasa Habib

v. Nemasa Ambasa Dharmadas [(2007) 13 SCC 650], as also

the relevant provisions of the Suits Valuation Act, 1887.

7. The suits before the trial court were filed for settlement of

accounts. The court fee payable with respect to such suits for

accounts is as provided under Section 35 of the Court Fees Act.

Section 35 of the Courts Fees Act, provides as under:

"35. Suits for accounts. - (1) in a suit for accounts, fee shall be computed on the amount sued for as estimated in the plaint or on rupees one thousand, whichever is higher. (2) Where the amount payable to the plaintiff as ascertained in the suit is in excess of the amount as estimated in the plaint, no decree directing payment of the amount as so ascertained shall be passed until the difference between the fee actually paid and the fee that would have been payable had the suit comprised the whole of the amount so ascertained, is paid. If the additional fee is not paid within such time as the Court may fix, the decree shall be limited to the amount to which the fee paid extends. (3) Where in any such suit it is found that any amount is payable to the defendant, no decree shall be passed in his

RFA (Filing) Nos.141 & 142 of 2024

favour until he pays the fee due on the amount."

Under Section 35(1) of the Court Fees Act, as regards a suit for

accounts, the court fee is to be computed on the amount sued for

as estimated in the plaint or on Rs.1,000/-, whichever is higher.

It is true that sub-section (2) of Section 35 provides for payment

of the balance court fee in cases where the plaintiff becomes

entitled to amounts in excess of amount estimated in the plaint,

without which the decree would not be passed. However, sub-

section (2) of Section 35 would apply only in a situation, where

the amount found payable to the plaintiff is in excess of the

amount estimated in the plaint. But that stage would arise only if

there is an ascertainment of the amounts payable to the plaintiff

after trying the suit. The court fee to be paid at the time of

institution of the suit is with reference to sub-section (1) of Section

35. The said provision clearly says that the fee is to be calculated

on the amount sued for as estimated in the plaint or on

Rs.1,000/-, whichever is higher. Here, as per the plaint, the suits

were valued at Rs.50 lakhs and Rs.1 Crore respectively. That being

so, there was no basis for paying the court fees with reference to

Rs.1,000/-, since the amount as estimated in the suits were the

RFA (Filing) Nos.141 & 142 of 2024

higher figure.

8. In such circumstances, the court fee paid at the trial stage

appears to be insufficient.

9. The remedy in such a situation is provided under Section

12(4) of the Court Fees Act, which reads as under:

"12(4)(a) Whenever a case comes up before a Court of Appeal it shall be lawful for the Court, either of its own motion or on the application of any of the parties, to consider the correctness of any order passed by the lower Court affecting the fee payable on the plaint or in any other proceeding in the lower Court and determine the proper fee payable thereon.

Explanation- A case shall be deemed to come before a Court of Appeal even if the appeal relates only to a part of the subject-matter of the suit.

(b) If the Court of Appeal decides that the fee paid in the lower Court is not sufficient, the Court shall require the party liable to pay the deficit fee within such time as may be fixed by it.

(c) If the deficit fee is not paid within the time fixed and the default is in respect of a relief which has been dismissed by the lower Court and which the appellant seeks in appeal, the appeal shall be dismissed, but if the default is in respect of a relief which has been decreed by the lower Court, the deficit fee shall be recoverable as if it were an arrear of land revenue.

RFA (Filing) Nos.141 & 142 of 2024

(d) If the fee paid in the lower Court is in excess, the Court shall direct the refund of the excess to the party who is entitled to it."

Thus, the appellate court is conferred with the power either of its

own motion or on the application of any of the parties, to consider

the correctness of any order passed by the lower court as regards

the court fee payable on the plaint and thereafter determine the

proper fee payable. Clause (b) of sub-section (4) of Section 12

grants power to the appellate court to require the party liable to

pay the deficit court fee to satisfy the same, within such time as

may be fixed by it.

10. The court fee to be paid at the appellate stage is as

provided under Section 52 of the Court Fees Act, which reads as

under:

"52. Appeals: 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."

(underlining supplied) Thus, the court fee to be paid in the present appeals is the fee,

that "would be payable in the court of first instance on the subject

matter of the appeal". Hence the court fee to be paid in the present

appeals should be with reference to the court fee actually payable

RFA (Filing) Nos.141 & 142 of 2024

under Section 35 of the Court Fees Act. It is to be noticed that

Section 52 of the Court Fees Act does not provide for payment of

court fees as had been paid at the court of first instance. Instead,

the court fee is to be paid with reference to the fee that ought to

have been paid at the court of first instance. In such

circumstances, there is a deficiency of court fees in the present

appeals.

11. In this connection, we notice the Full Bench decision of

this Court in Kurian v. Ayyappan [1982 KLT 434], wherein the

question considered by the court was with reference to the court

fee to be paid in an appeal against the order of the District Court

in a petition for letters of administration. The proceeding before

the District Court was not registered as a suit as it ought to have

been. The appellant paid court fee on the appeal before this court

at Rs.5/-, the court fee which is to be paid before the trial court in

non-contentious suits. Registry did not accept this and the matter

was placed before the Full Bench in view of an earlier judgment.

Considering the above issue, the Full Bench of this Court held as

follows:

"The contention urged before us by the learned counsel,

RFA (Filing) Nos.141 & 142 of 2024

nevertheless, is that court-fee payable should be governed by Section 52 and if so since he has paid court-fee other than ad valorem in the court below that should be the case in the appeal also. We need not go into the question whether he should have paid ad valorem court-fee in the court below, which, at the moment, we are not called upon to decide. But we find that irrespective of that question in this appeal the court-fee payable by him is that prescribed under Article 4 of Schedule I of the Kerala Court-Fees and Suits Valuation Act."

In the light of the above dictum also, the court fee to be paid in

this appeal is the correct court fee, which ought to have been paid

under Section 35 of the Act.

12. We also notice the judgment in Kochappu and others

v. Somasundaran Chettiar and others [1991 (1) KLJ 462],

wherein a Division Bench of this Court was considering the impact

of reduction in court fee as regards appeals filed after the said

reduction, in the following lines:

"4. A plain reading of the section, to our minds, makes the meaning clear and simple. A taxing officer does not have much of vexation in the calculation of the court fee for an appeal. The section refers him to what is payable on a suit instituted. Necessarily it is a suit instituted at the time when he considers the question and quantum of court fee. Given the valuation, and the ready reckoner of a schedule, the

RFA (Filing) Nos.141 & 142 of 2024

calculation is easy and simple. If practical demonstration is needed, take the facts as are available in the appeal arising from O.S.No.128 of 1987 of the Sub Court, Thodupuzha. The court fee payable on the appeal is that payable according to the schedule of a suit instituted for the same relief. The relief was evaluated in the appeal as Rs.12,78,536.20. For such a relief, as on the date of the filing of the appeal, court fee payable is Rs.87,227.00. Adopt that figure for the purpose of the appeal and the job is done. So adopted, the court fee comes to only Rs.87,227/-. Of course, this is much less compared to the court fee for the amount reckoned on the basis of the schedule in force at the time of the institution of the suit which would be Rs.1,27,854/-. That is because of the reduction in the court fee now statutorily declared by the State itself. When the reduction is declared as a policy of the State and reflected in a properly framed statute, there is no scope for a further boggling of the mind. The court fee payable is only Rs.87,227/-.

5. When matters are simple enough in the context of a not so obese statute, it is unnecessary to get enmeshed in avoidable confusion.

6. The court gets considerable comfort from the distinction the statute itself has made between the term 'payable' and the term 'paid'. The term "payable" occurs in Sections 5, 7, 10, 11, 12, 15, 20, 21, 26, 42, 46, 47, 48, 50, 52, 53, 64, among others. The term 'paid' also occurs in various sections. Some of them are Sections 61, 63, 66, 67, 68, 69, 70, and 71. The learned Advocate-General submitted that

RFA (Filing) Nos.141 & 142 of 2024

the words calling for interpretation are not a simple or singular term 'payable' but a combination of words: 'would be payable'. We do not find any substantial difference between the terms 'payable' and 'would be payable'. If the legislature intended a bodily lifting of the whole or proportionate part of the fee already paid in the lower court, it would be justifiable to expect the legislature to employ the clear and direct term 'paid'. An adoption of a different terminology-'would be payable' cannot be attributed to an accidental slip on the part of the legislature. The term 'would be' is in marked contrast with the terminology 'that would have been payable' or 'that had been paid'."

Thus, the court fee to be paid in this appeal, is to be with reference

to the court fee that would be payable in the trial court and not

on the basis of the court fee paid in the trial court.

13. As regards the question of jurisdiction pointed out by

Registry, we may refer to the provisions of Sections 12 and 13 of

the Kerala Civil Courts Act, 1957. Admittedly, the suits were

valued at Rs.50 lakhs and Rs.1 Crore respectively as per the plaint

and therefore, the appellants are justified in preferring the present

appeal before this Court.

14. The judgments relied on by the learned counsel for the

appellants are not apposite to the case at hand. The judgment in

RFA (Filing) Nos.141 & 142 of 2024