Madras High Court
V.V.Preetha vs Ayappan on 24 February, 2025
Author: R.Vijayakumar
Bench: R.Vijayakumar
C.R..P.(PD)(MD).No.1460 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 24.02.2025
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
C.R.P(PD)(MD)No.1460 of 2024
1. V.V.Preetha
2. J.P.Kanu Girik ... Petitioners/Appellants
/Plaintiffs 2 and 3
Vs.
1. Ayappan
2. Madhavan Pillai
3. The Sub Registrar,
Manavalakurichi Sub Registrar Office,
Manavalakurichi Village,
Manavalakurichi Post,
Kalkulam Taluk,
Kanyakumari District.
4. The Tahsildar,
Kalkulam Taluk,
Situated at Thuckalay,
Thucklay Post,
Kanyakumrai District.
5. Sugunabai ... Respondents/
Respondents/
Defendants 1 to 5
1/9
https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 03:51:57 pm )
C.R..P.(PD)(MD).No.1460 of 2024
PRAYER: Civil Revision Petition filed under Article 227 of Constitution of
India, to set aside the fair and decreetal order made in Unnumbered A.S in
C.F.No.429 of 2024 on the file of the Principal District Judge (FAC)
Kanniyakumari at Nagercoil, dated 26.04.2024 in O.S.No.29 of 2019 on the
file of the Subordinate Judge, Eraniel, dated 30.06.2023.
For Petitioners : Mr.C.Sankar Prakash
For R1 and R2 : Mr.G.Aravinthan
For M/s.Aram Legal Consultancy
For R3 and R4 : Mr.S.P.Maharajan
Special Government Pleader
For R5 : Mr.N.S.Ramakrishnadass
ORDER
The appellants in unnumbered A.S in C.F.No.429 of 2024 on the file of
the Principal District Court (FAC), Kanyakumari at Nagercoil, are the
revision petitioners herein.
2. The revision petitioners as plaintiffs have filed the above said suit for
the relief of declaration that the of Sale Deed No.1491 of 2011, dated
25.07.2011, as null and void and for a permanent injunction restraining the
defendants 1 and 2 from alienating or encumbering the property. The
plaintiffs have further prayed for mandatory injunction directing the third
https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 03:51:57 pm )
C.R..P.(PD)(MD).No.1460 of 2024
defendant to make necessary entries in the official records relating to the
cancellation of the impugned sale deed and also to direct the fourth defendant
to make necessary entries by deleting the name of the second defendant in the
revenue records and insert the name of the plaintiff. A counter claim was filed
by the first defendant seeking declaration that he is having life estate over the
counter claim property.
3. The suit was dismissed and the counter claim was allowed. The life
interest of the fifth defendant over the counter claim property was declared.
Challenging the same, the plaintiffs have filed A.S in C.F.No.429 of 2024
before the learned Principal District Judge (FAC), Kanyakumari at Nagercoil.
Under the impugned order, the memorandum of appeal was returned by the
learned Principal District Judge on the ground that the plaintiffs/appellants
have to pay Court fee as was paid before the trial Court and not as per the
amended Act. This order is put to challenge in the present Civil Revision
Petition.
4. The trial Court has relied upon a judgment reported in 2023 -3- LW
Page.505, (V.Rajarathinam Vs.V.Sivasubramanian and others), which was
https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 03:51:57 pm )
C.R..P.(PD)(MD).No.1460 of 2024
delivered by a learned Single Judge of this Court. As per the said judgment,
the amending Act would not apply to an appeal arising out of a suit instituted
prior to the coming into force of the amendment and therefore, the Court fee
that was paid before the trial Court has to be paid before the first Appellate
Court also.
5. The learned counsel appearing for the revision petitioners has relied
upon another judgment of the learned Single Judge of this Court reported in
2018 (2) MWN (Civil) 753 (Sivakami Vs.Nallathal), wherein it is held that
the Court fee payable in an appeal shall be under the new Act and not under
the old Act. The learned single Judge has further held that the Court-fee
payable in an appeal would be the Court-fee payable in the Court of first
instance and it would be based on the date on which the appeal is presented
before the Court.
6. The learned counsel appearing for the revision petitioners has also
relied upon the Division Bench of this Court in A.S(MD) SR.Nos.11388 and
6854 of 2018 and the said appeal arising out of a partition suit. The learned
counsel appearing for the appellants had contended that the plaintiffs have
https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 03:51:57 pm )
C.R..P.(PD)(MD).No.1460 of 2024
paid a sum of Rs.750/- as Court-fee before the trial Court and therefore, the
same Court-fee has to be paid by the appellants in the first Appellate Court.
When the registry raised an objection to the said contention, the issue was
placed before the Hon'ble Division Bench for deciding maintainability. The
Hon'ble Division Bench of this Court by their judgment in paragraph Nos. 4
to 7 has held as follows:
“4. Section 52 of the Tamil Nadu Court-Fees
and Suits Valuation Act, 1955 contemplates only
payment of the same Court fees that would be
payable in the Court of first instance on the subject
matter of the appeal.
5. The learned counsel for the appellants
contended that as the Section 52 of the Act is not
amended to clarify this issue, the Court fees
payable would be Rs.750/- as that was paid at the
time of filing of the suit.
6. We are unable to persuade ourselves to the
above submission as Section 52 clearly indicates
that the Court fees payable is the same as that
“would be payable” in the Court of first instance
and “not what is paid”. Therefore, there is no
ambiguity in the language employed in Section 52
as it is very clear that the Court fees payable in the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 03:51:57 pm )
C.R..P.(PD)(MD).No.1460 of 2024
first instance, after the amended Act is Rs.5000/-
and therefore, the appeal filed subsequent to the
coming into force of the amended Act also should
be only Rs.5000/-.
7. Though the right of appeal is a substantive
right that vests in a litigant on the date of filing of
the suit and cannot be taken away and the appeal
being a continuation of the suit whether
retrospective implementation can be made. The
subsequent amendment in the payment of Court fees
which has been enhanced does not take away the
right of appeal and it cannot be set to impair or
imperil the appellant's right in view of the enhanced
Court fees. Hence, the objection raised by the
Registry is sustained and the appellants are
directed to pay a sum of Rs.5000/- as per the
amended Act, within two weeks from the date of
receipt of a copy of this order. On such payment,
Registry is directed to number the appeals, if they
are otherwise in order.”
7. As per the judgment of the Hon'ble Division Bench of this Court, the
Court-fee has to be determined only on the basis of the date on which the
appeal is presented. The Court fee that is prevailing on the date of
https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 03:51:57 pm )
C.R..P.(PD)(MD).No.1460 of 2024
presentation of the appeal has to be paid by the appellants. The appellants
cannot rely upon the Court fee that was paid by the plaintiffs before the trial
Court based upon the un-amended Act.
8. In view of the categorical decision of the Hon'ble Division Bench of
this Court, the trial Court was not right in relying upon the judgment of the
learned Single Judge reported in 2023 -3 LW Page.505, (V.Rajarathinam
Vs.V.Sivasubramanian and others). The appellants in the above first appeal
are directed to pay Court-fee only as per the Amended Act. The order
impugned in the revision petition is set aside.
9. With the above said observations, this Civil Revision Petition stands
allowed. There shall be no order as to costs.
24.02.2025
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
ebsi
https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 03:51:57 pm )
C.R..P.(PD)(MD).No.1460 of 2024
To
1. The Principal District Judge (FAC),
Kanniyakumari at Nagercoil,
2. The Subordinate Judge,
Eraniel.
3. The Sub Registrar,
Manavalakurichi Sub Registrar Office,
Manavalakurichi Village,
Manavalakurichi Post,
Kalkulam Taluk,
Kanyakumari District.
4. The Tahsildar,
Kalkulam Taluk,
Situated at Thuckalay,
Thucklay Post,
Kanyakumrai District.
5. The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 03:51:57 pm )
C.R..P.(PD)(MD).No.1460 of 2024
R.VIJAYAKUMAR,J.
ebsi
C.R.P(PD)(MD)No.1460 of 2024
24.02.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 03:51:57 pm )
