AI Structured Summary
Not yet generated for this judgment
Judgment
Varghese Kalliath, J.—These cases come before us for determination of a general question regarding court fee, what is the court fee that has to be paid on a revision petition filed before the High Court u/s 103 of the Kerala Land Reforms Act (hereinafter referred to as ''the Act''). This question was considered by a learned single Judge of this Court in Subramanian Namboodiri v. Sankaran (1984 KLT 615) Justice Thulasidas doubted the correctness of the above decision and referred the matter for the decision of a Division Bench. At the outset, we shall give the bony facts of these cases without any legal lacing. C.R.P. No. 964 of 1993 is a revision against the final order in an appeal u/s 102 of the Act. The proceedings was u/s 80 B of the Act for purchase of kudikidappu. The tribunal allowed the application and fixed the purchase price. The land owner filed an appeal u/s 102 of the Act. The appellate authority dismissed (he appeal. The land owner seeks revision of the orders in this revision petition.
C.R.P. No. 965/93 relates to proceedings for purchase of the land owner''s right vested with the Government. It was a suo motu proceedings. The land tribunal found that the ''A'' party/first respondent in the C.R.P. is entitled to assignment of the right, title and interest over an extent of 30 cents of property. An appeal was filed by the daughter of the ''B'' party as A. A. No. 450/77 before the appellate authority. The appellate authority allowed the appeal and remanded the case to the land tribunal. The land tribunal considered the case again and found that the applicant is a tenant as defined in Use Act and is entitled to fixity of tenure.
The present revision petitioner and second respondent herein filed an appeal challenging the order of the land tribunal. On the date fixed for final hearing, counsel did not appear, since he was engaged in another court. Appeal was posted for orders. An application for review was filed by counsel. The appellate authority without considering the application for review, dismissed the appeal for default by judgment dated 29-10-1988, Appellants before the appellate authority filed an application for restoration of the appeal. That application was allowed by the appellate authority on 13-5-1991 on condition that the appellants should pay the cost of Rs. 100/- within one month from that date. The revision petitioner was unaware of the posting of the case and she could not pay the cost within the time prescribed. So on 25-6-1991 the restoration application was dismissed and consequently the appeal was also dismissed. The revision petitioner filed an application to review the order dismissing the restoration application and also filed a petition to condone the delay in filing the restoration application. The appellate authority dismissed the applications. Under these circumstances, the revision petitioner filed the present revision.
C.R.P. No. 966/93 is against the judgment of the appellate authority dismissing an appeal u/s 102 of Act filed against the order allowing assignment of right title and interest of the land owner in proceedings initiated u/s 72 (c) of the Act.
Now, we turn to consider the question of court fee that has to be paid for the revision petitions filed before the High Court u/s 103 of the Act. In all those revision petitions, revision petitioners have paid only Rs. 2/- as court fee. In C.R.P. No. 966/93, revision petitioner has paid the court fee under Article 11(t) of Schedule II of the Kerala Court Fees and Suits Valuation Act, 1959 (Act 10 of 1960). The office made a note that the court fee paid is insufficient.
In the case considered by the learned single Judge (1984 KLT 615), no court fee was paid by the revision petitioner therein in view of Section 116 of the Act read with Rule 127 of the Land Reforms (Tenancy) Rules. After considering the provisions of the Kerala Land Reforms Act, Kerala Land Reforms (Tenancy) Rules and the Kerala Court Fees and Suits Valuation Act, the learned single Judge observed that when the question of court fee is brought before the court the only search that is needed is to fix the appropriate item in the Schedule imposing court fee and held in cases of revisions filed u/s 103 of the Act that would obviously be Article 11 (p) of the IInd Schedule.
We shall first consider the reason stated by the learned single Judge in holding that the fee payable on a revision filed before the High Court u/s 103 of the Act is under Article 11 (p) of the IInd Schedule of the Kerala Court Fees and Suits Valuation Act. In fact, the main enquiry and investigation made by the learned single Judge was focused on the question whether any court fee is payable. This question was considered because no fee is indicated under Rule 127 of the Kerala Land Reforms (Tenancy) Rules for filing a revision before the High Court u/s 103 of the Act. Rule 127 of the Kerala Land Reforms (Tenancy) Rules is the provision fixing the rate of court fee in respect of the documents listed in the appendix. It was found that the revision petition is not one of the documents so referred to in that appendix. The argument proceeded that the regulation of payment of court fee payable is entirely governed by the provisions of Rule 127 of the Kerala Land Reforms (Tenancy) Rules as far as the proceedings under the Act is concerned and so no levy of fee can be made for revision petition u/s 103 of the Act for the obvious reason that it is not one of the items included in the appendix under Rule 127 of the Kerala Land Reforms (Tenancy) Rules. As answer to this argument, the court posed the question can in such a situation, the provision of Article 11 (p) of IInd Schedule of the Kerala Court Fees and Suits Valuation Act be invoked. In order to support the ease that no fee is payable in the circumstances, it was pointed out that Section 2(2) of the Kerala Court Fees and Suits Valuation Act provided that: "Where any other law contains provisions relating to the levy of fee in respect of proceedings under such other law, the provisions of this Act relating to the levy of fees in respect of such proceedings shall apply subject to the said provisions of such other law."
Obviously the above provision is not totally absolving a party from not paying the court fee for filing a revision before the High Court on the ground that the Act which provided for filing a revision and its Rules are silent about the payment of court fee. The obvious reason is that Section 2(2) of the Kerala Court Fees and Suits Valuation Act only states that if a provision for payment of court fee is provided by the special statute or its Rules that keeps hold of and scores primacy as against the provisions contained in the Court Fees Act, The learned single Judge observed that : "The logical extension of the contention of Counsel is that the Land Reforms Act contains an exhaustive and self-contained field relating to court fee payable in respect of the different proceedings. It is unnecessary and impermissible then to transplant some others from a different field, even if that one contains some of a general stock. Attractive though the argument is, I am unable to accept the same". The learned single Judge very rightly held that the provisions of different enactment have to be read harmoniously and to the extent possible, in such a manner as not to impinge upon the efficacy of each other. The fact that no fee has been provided as per Rule 127 of the Kerala Land Reforms (Tenancy) Rules and the appendix provided under that Rule is not excluded the application of the Court Fees Act and in the search for the appropriate item in the court fee, the learned single Judge held that the item relevant is Article 11 (p) of Schedule 11 of the Kerala Court Fees and Suits Valuation Act.
Counsel for the revision petitioners submitted that the learned single Judge is quite right in finding that the Court Fees Act is applicable even though there is no provision in Rule 127 of the Kerala Land Reforms (Tenancy) Rules and the appendix provided under that Rule. But the learned single Judge, according to counsel for the petitioners, did not obviously make a further search as to the correct and appropriate Article in the IInd Schedule of the Kerala Court Fees and Suits Valuation Act.
Now the question capsulizes and boils down as to the appropriate Article. We are only concerned with two Articles in the IInd Schedule of the Kerala Court Fees and Suits Valuation Act, viz., Article 11 (p) and Article 11 (t). Article 11 (p) & (t) of Schedule II of the Kerala Court Fees and Suits Valuation Act reads thus :-
(p) Revision petition presented to the High Court u/s 115 of the Code of Civil Procedure, 1908, or u/s 22 of the Kerala Small Cause Courts Act, 1957 or under the provisions of any other Act, arising out of a suit or proceeding-
(i) if the value of the suit or proceeding to which the order sought to be revised relates does not exceed Rs. 1000. Five rupees
(ii) if such value exceeds Rs. 1,000. Ten rupees
(q)....................................
(r)....................................
(a)....................................
(t) Application or petition presented to the High Court and not otherwise specifically provided for Two rupees.
The first part of Article 11 (p) of the Court Fees Act obviously takes in revision arising out of proceedings provided under "any other Act". But Article 11(p) (i) and (ii) of the Court Fees Act also are integral parts of the first part of Article 11 (p). Article 11(p) (i) of the Court Fees Act makes it clear that a fee of Rs. 5/- has to be paid if the value of the proceeding to which the order sought to be revised relates does not exceeds Rs. 1,000/- and Rs. 10/- if such value exceeds Rs. 1,000/- In order to fit in Article 11 (p) it becomes necessary that the proceedings should be valued or should have a value and if the value does not exceed Rs. 1,000/-, the fee payable is Rs. 5/- and if the value exceeds Rs. 1,000/-, the fee payable is Rs. 10/-. So, the conditions enumerated in Article 11 (p) (i) and (ii) of the Kerala Court Fees and Suits Valuation Act are part and parcel of the first part of Article 11 (p). A determination of court fee under Article 11(p) necessarily requires a determination enjoined in Article II (p) (i) and (ii). '' When we want to apply Article 11(p) for the purpose of levying court fee for filing a revision before the High Court u/s 103 of the Act, the integral part of the main part of Article 11(p), viz. (i) and (ii) become off-colour, off - tone, inharmonious and incongruous with the main part. Article 11 (p) can be applied only if we can take along with the main part, Article 11 (p) (i) or (ii) of the Kerala Court Fees and Suits Valuation Act.
Counsel for the revision petitioners referred to Article 3 of the Kerala Court Fees and Suits Valuation Act. It reads thus :
Memorandum of appeal from an order inclusive of an order determining any question u/s 144 of the Code of Civil Procedure, 1908, and not otherwise provided for when presented--
(i)...........................
(iii) to the High Court --
(A) From an order other than an order under the Kerala Agriculturists Debt Relief Act, 1958.
(1) Where the order was passed by a Subordinate Court or other authority --
(a) If the order relates to a suit or proceeding, the value of which exceeds one thousand rupees Ten rupees
(b) In any other case Five rupees
(emphasis added)
Article 11 (p) does not contain a provision like any other case''. So, in the case of filing ''a revision before the High Court u/s 103 of the Act which does not require a valuation before the authority concerned cannot be included in Article 11 (p) of the Kerala Court Fees and Suits Valuation Act. It is pointed out that Section 103 of the Act though gives the marginal note as revision by High Court, in the substantial part of the Section what is stated is "Any person aggrieved by..., within such time as may be prescribed, prefer a petition to the High Court against the order on the ground..." Further in Section 103 (1 A) of the Act. What is stated is "In any petition for revision preferred under sub-section (1), the Government shall be made a party." Article 11 (p) of the Kerala Court Fees and Suits Valuation Act provides fee to be paid in regard of revision petition presented to the High Court under the provisions of any other Act.
Counsel for the revision petitioners submitted that what is presented before the High Court is a petition u/s 103 of the Act and that provision only mentions petition and so the more appropriate provision is Article 11 (t) of the Kerala Court Fees and Suits Valuation Act where it is stated that application or petition presented to the High Court and not otherwise specifically provided for. Counsel submitted that Article 11 (p) of the Kerala Court Fees and Suits Valuation Act is not a specific provision in regard to petition u/s 103 of the Act. Of course, in Article 11 (p) the provision is revision petition presented in any other Act and in that way it is contended by learned counsel Shri. Rajagopal, (amicus curiae) that a revision petition u/s 103 of the Act is specifically provided under Article 11 (p) of the Kerala Court Fees and Suits Valuation Act. But we have already pointed out the difficulty that Article 11(p) has to be considered as a whole, viz., Article 11 (p) (i) and (ii) of the Kerala Court Fees and Suits Valuation Act. We have to reconcile items (i) and (ii) of clause (p) of Article 11 of the Court Fees Act when we apply that provision for the purpose of levying fee for a revision before the High Court, u/s 103 of the Act. Considering all the aspects of the case, we feel that what counsel for the revision petitioners submitted is correct and the provision that is applicable is Article 11 (t) of IInd Schedule of the Kerala Court Fees and Suits Valuation Act and the court fee payable for a revision u/s 103 of the Act is only Rs. 2/-. We hold that the decision reported in 1984 KLT 615 to the extent it holds that the fee chargeable on the revision petitions filed u/s 103 of the Kerala Land Reforms Act, 1963 is under Article 11 (p) of the IInd Schedule to the Court Fees Act is incorrect and that the fee chargeable is under Article 11 (t) of the IInd Schedule to the Court Fees. Act. We record our appreciation for the able assistance rendered by learned counsel Shri. Rajagopal as amicus curiae.
Office is directed to receive these revision petitions.