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Judgment
Mansoor Ahmad Mir, J.—In terms of note of the Registry, appellant has not deposited the Court fee.
Mr. Haqani, learned Counsel for appellants, disputed the correctness of the note of the Registry on the premises that the appellants are not
required to pay the court fees because It is to be paid only once which the respondent (plaintiff) had paid at the time of filing of the suit which came
to be decreed. Thus the appellants are not required to pay court fee.
Heard. Perused. Considered.?
It appears that plaintiff had filed a 5 suit before the trial Court for recovery of Rs. 28,20,542/- along with interest thereon pen-5 dente lite and
future interest at the rate of 16.5% w.e.f. 31.3.2001 till final liquidation of the decretal amount. The defendant filed written statement before the trial
Court and trial Court framed issues in the suit. The parties led evidence and after hearing learned Counsel for parties, trial Court passed judgment
dated 29.7.2005 and decreed the suit in favour of respondent No. 1 against the appellants and respondents 2 and 3.
Appellant feeling aggrieved of the said judgment and decree filed this appeal and prayed that the impugned judgment and decree be set-aside.
Appellant has virtually prayed for dismissal of the suit.
The issue involved in the first look appears to be simple one but it is interesting one and of public importance.
It is profitable to reproduce Section 6 of the Court Fees Act (hereinafter for short ""Act"") herein, which reads as under:
Fees on documents filed etc. in Mufassil Courts or in public offices.â€" No document of any of the kinds specified as chargeable in the first or
second Schedule to this Act annexed shall be filed, exhibited or recorded in any Court of Justice, or shall be received or furnished by any public
officer, unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said Schedules as the
proper fee for such document.
In this provision, it is specifically provided that documents specified in the first or second Schedule appended to the Act, shall not be filed,
exhibited or recorded in any Court of Justice unless court fees as indicated in the schedule is paid.
It is also useful to reproduce Clause I of Schedule I appended to the Act, herein, which reads as under:
Number Proper fee
Plaint
Written statement pleading ... ...
a set-off or counter claim
or memorandum of appeal (not
otherwise provided for by this
Act) or of cross objection
presented to any Civil or Revenue
Court
While going through Clause I of Schedule I, it is specifically provided that the court fee is to be paid in the memorandum of appeal also.
It is profitable to reproduce Section 7(i) of the Act, herein, which reads as under:
Computation of fees payable in certain suits.â€" The amount of fee payable under this Act in the suits next hereinafter mentioned shall be
computed as follows:
(i) for money.â€" In suits for money (including suits for damages or compensation, or arrears of maintalnance, of annuities, or of other sums
payable periodically) â€" according to the amount claimed;
This provision indicates how a suit for recovery of money is to be valued for purposes of court fee.
It is profitable to reproduce Section 13 of the Act, herein which reads as under:
Refund of fee paid on memorandum of appeal.â€"If an appeal or plaint which has been rejected by the lower Court on any of the grounds
mentioned in the Code of Civil Procedure, is ordered to be received, or if a suit is remanded in appeal, on any of the grounds mentioned in Order
XLI, Rule 23 of the same Code for a second decision by the Lower Court, the Appellate Court shall grant to the appellant a certificate, authorizing
him to receive back from the Collector the full amount of fee paid on the memorandum of appeal:
Provided that if, in the case of a remand in appeal, the order of remand shall not cover the whole of the subject-matter of the suit, the certificate so
granted shall not authorize the appellant to receive back more than so much fee as would have been originally payable on the part or part of such
subject-matter in respect whereof the suit has been remanded.
This provision Of law mandates under which circumstances, court fee paid can be refunded to appellant(s).
Keeping in view the mandate of Section 6, Section 7(i) of the Act and Clause I of Schedule-I appended to the Act, referred hereinabove, the
appeal is to be valued for purposes of jurisdiction and court fee. Court fee is to be paid according to the valuation fixed for payment of court fee.
Question is how an appeal which is outcome of a suit for recovery of money can be valued?
If the suit is dismissed the plaintiff has to file an appeal and value the appeal for purposes of jurisdiction and Court fee.
If the plaintiff files appeal in a suit which is partly granted and partly dismissed, he has to value the appeal for purposes of jurisdiction at the
amount suit was valued and, court fee at an amount which is in dispute in the appeal. That means the plaintiff/appellant has to pay court fee only for
that amount which is disputed in the appeal.
Similarly, if defendant files appeal against the said judgment and decree, he has to value appeal for purposes of jurisdiction at an amount the
suit was valued by plaintiff but has to value the appeal for the purposes of court fee at the decretal amount.
This view is fortified by the judgment of this Court titled State Bank of India v. Raman Kumar Gupta and Ors. reported in 1987 KLJ 183. It is
profitable to reproduce Paras 8 and 10 of the said judgment herein, which reads as under:
Adverting to the valuation for payment of decretal amount by instalments, no specific valuation has been put by the appellant to calculate the
valuation for the purposes of jurisdiction and payment of court fee thereon. In the above quoted appeals, Civil First Miscellaneous Appeal No. 21
of 1985 and Civil First Miscellaneous Appeal No. 27 of 1985 (supra), this Court held the view that when the difference of interests is claimed in
the appeal, the valuation for the purposes of appeal shall be the difference of the interest claimed pendente lite and future interest be paid till the
filing of the appeal and ad valorem court fee shall be paid in accordance with Article I Schedule I of the Court Fees Act for that reliance is placed
on a reported decision of the Nagpur High Court in AIR 1937 6 (Nagpur) With respect to modification of the degree for instalment, it has been
held relying on the principle laid down in AIR 1955 PC 122, Sant Ram and Anr. v. Nand Lal, that the appellant shall have to calculate the interest
payable from the date of the decree till the last installment is paid and on calculating the said amount of interest whatsoever amount is arrived at, the
same shall be deducted from the decretal amount, on deduction the difference should be the value for appeal, which shall be deemed to be the
subject-matter in appeal, on which also ad valorem court fee in accordance with Article 1 Schedule I of the Court Fees Act shall be payable. For
this proposition, reliance can safely be placed on a decision of their Lordships of the Supreme Court reported in Nemi Chand and Another Vs.
The Edward Mills Co. Ltd. and Another, Since the appellant has neither valued the appeal for the purposes of the appeal against the payment of
instalment in accordance with the above said proposition laid down, we find that the appeal is neither properly valued for the purposes of
Jurisdiction nor the court fee in accordance with Article 1 Schedule I of the ourt fees Act has been paid.
On the discussion made hereinabove as to the claim put forward by the appellant for the difference of the rate of interest and that of the
difference of the decretal amount to be paid installments, it was so apparent and clear that there existed no confusion to put up a lesser court fee
than required. Similarly assuming that the valuation put in by the appellant for the purposes of jurisdiction at Rs. 1,04,127.20 paise as against the
decretal amount of Rs. 94,127.20 paise, the court fee should have been paid in ad valorem. We are unable to find out that appellant acted in good
faith in putting the court fee of Rs. 1/- only under the above-said circumstances, for that reason alone we do not find any ground to exercise the
discretion in favour of the appellant u/s 149 of the CPC to grant him time to make the deficiency. For that reason alone, we hold that the appeal is
not tenable for want of proper court fee and under the circumstances enumerated above, the appellant is not entitled to get time to make up the
deficiency.
This Court in case titled as Khem Raj v. Hem Raj and Anr. reported in AIR 1956 J&K 35, has held as under:
(3)...There may be a final decree passed for a definite amount against one of the parties and the appeal from which a decree will not be governed
by Section 7(iv)(f), Court-fees Act. There the appellant, if he wants to get rid of the decretal amount will have to pay ad valorem court fee the
dispute in appeal would no longer be of taking of accounts but would relate to a definite sum of money which is decreed against the appellant. The
provision of the Court-fees Act applicable in such a case would be the 1st Article of the 1st Schedule of the Court-fees Act under which ad
valorem court-fee on the decretal amount will have to be paid by the appellant as he wants the appellate Court to set aside that decree....
This Court in case titled as Ahad Mir v. Mahda Bhat reported in AIR 1960 J & K 89, has held as under:
12... There is a well established and fundamental difference between the valuation of an appeal for purposes of court-fees and that for purposes of
jurisdiction. For purposes of court-tees, it is the subject-matter of the appeal that has to be considered, but for purposes of jurisdiction it is the
value of the suit that has to be taken into account. The effect of Section 5 of the Suits Valuation Act, so far as an accounts suit is concerned, is that
the value given in the plaint is also the value for purposes of jurisdiction.
This jurisdictional value will equally apply to an appeal. But the value of an appeal for purposes of court-fees may be different. That circumstance
will not have the effect of altering the value of the appeal for purposes of Jurisdiction. It is, therefore, wrong to say that the value for purposes of
jurisdiction in respect of an appeal will depend upon the value of the appeal for purposes of court-fees. The true effect and purport of Section 8 of
the Suits Valuation Act is to fix the same value for purposes of jurisdiction in respect of the suit as well as the appeal.
It does not, therefore, avail the appellant to say that as he had to pay court-lees in the appeal on the amount of the final decree, that amount must
decide the value of the appeal for purposes of jurisdiction also. The correct position, as we already indicated, is that the jurisdictional value of the
suit will be the jurisdictional value of the appeal as well. The forum of appeal has to be determined on the basis of the jurisdictional value stated in
the plaint and in accordance with the provisions of the Civil Courts Act.
This Court in case titled as Gupta Pvt. Loan Committee and Others Vs. Smt. Sumitra Devi, , has held as under:
Indeed, it is not in doubt that under the Civil Courts Act, an appeal from the decree and judgment of the District Judge lies to the High Court.
The precise question which requires consideration in this regard is whether the value for the purpose of jurisdiction of the appeal has to be
according to the extent of amount challenged or whether the valuation for the purpose of jurisdiction has to be or per value of the suit irrespective
of the challenge in appeal. To decide this controversy, recourse has to be made to the Court-fees Act and the Suit Valuation Act. u/s 8 of the Suit
Valuation Act, in suits, other than those specified in the section, the Court-fee payable under the Court-fees Act is ad valorem and the value for the
purpose of the court fee and jurisdiction has to be the same. The value of relief sought by the plaintiff settles the jurisdictional value and once the
plaintiff has exercised his option, u/s 7(iv) of the Court fees Act, to assses his claim for a particular value, for the purpose of court-fees, that also
becomes the value for jurisdictional purpose. In our view, therefore, in a suit for recover)' of money any reduction of the amount claimed by a
decision of the court or even as a result of compromise between the parties to the suit, does not and cannot change the orignal jurisdictinal value
for the purpose of the appeal. However, where a decree is granted for an amount greater than that asked for the plaint, the decretal amount would
be the value for the purpose of appeal and the same would also determine the appellate forum. There is of course a fundamental difference
between valuation of an appeal for purposes of court fees and that for the purposes of Jurisdiction. For the purpose of court fees, it is the subject-
matter of the appeal that has to be considered but for the purpose of jurisdiction it is the value of the suit that we have to be taken into account. In
this view that we have taken we find support from a judgment of the Punjab and Haryana High Court in Mohinder Singh Harnam Singh and Others
Vs. Jagijit Singh S. Sher Singh and Another, wherein it was opined as follows:
The jurisdiction value of a suit does not change with the form of the decree and the forum of appeal is to be determined by the value of the suit and
not by the value of the decree.
Applying the test to the Instant case, the suit filed by the plaintiff for recovery of the money came to be decreed and a decree for an amount of
Rs. 28.20.542/- along with interest thereupon pendente lite and future interest at the rate of 16.5% till final liquidation of the decretal amount with
costs, came to be passed against the defendants. The defendant/appellant filed appeal against the said decretal amount and has prayed for setting
aside of the judgment and decree. Virtually the appellant has prayed for dismissal of the suit. The appellant had to value the appeal for purposes of
jurisdiction at Rs. 28,20,542/- and also for payment of court fee at Rs. 28,20,542/-.
The filing of suit is one remedy and filing of appeal is another remedy. The suit and appeal are to be filed before two different forums and Court
fee is to be paid before both the forums in terms of the Act.
In terms of the Act, the payment of Court fees is revenue which is for the welfare of the public and in the interest of public and society at large.
Viewed thus, the argument of learned Counsel for appellant that court fee is to be paid only once is devoid of any force.
In the given circumstances, appellant is directed to deposit Court fee for an amount of Rs. 28,20,542/- within two weeks with all just
exceptions.