Joseph, G. vs Sara Thomas and Others

J.B. Koshy, J.—Revision Petitioner wrote a Malayalam novel by name ''Manushyanum Kadalum'' (The Man and Sea) in the year 1968 and it was subsequently published in Viswadharmam Weekly. It is the case of the Petitioner that the same idea was used in the story called ''Valakar'', published in the Respondents'' Sunday Supplement without obtaining any permission or consent from him. Therefore, O.S. No. 2/92 was filed stating that Respondents 1 to 5 after knowing fully well the implication of violation of the provisions contained in Copyright Act, 1957 have contravened the rights recognised under the common law. Section 55 of the Copyright Act provides that the owner of the copyright is entitled for such remedies by way of injunction, damages, accounting, etc. The story published in the name of ''Valakkar'' is nothing but a modified reproduction of ''Manushyanum Kadalum'' written by the Petitioner. Therefore, Petitioner filed the suit for injunction and accounting and claiming an amount of Rs. 10,00,000 as damages. Before filing written statement, the question of payment of Court fee was heard by the Court and the Court found that Petitioner/Plaintiff was praying for injunction and other reliefs. Therefore, Petitioner has to pay Court fee as per the provisions of Court Fees and Suits Valuation Act. It was the contention of the Petitioner that since the case was filed under the Copyright Act, 1957, no Court fee need be paid under the Court Fees and Suit Valuation Act. That contention was not accepted by the Court and found that total Court fee he has to pay Rs. 410 and the Petitioner was directed to pay balance Court fee.

A statement was filed by the Respondents stating that the relief claimed by the Petitioner along with the injunction application is Rs. 10,00,000 as damages. Therefore, appropriate Court fee u/s 22 of the Court Fees and Suit Valuation Act should be paid. Respondents filed objections on 8th February 1994 stating that Court fee should be paid according to the amount of damages claimed in the plaint. Written statement was filed on 1st August 1994. There also the specific contention regarding non-payment of appropriate Court fee was raised. Thereafter, the Court examined the matter and by the impugned order the Court directed the Petitioner/Plaintiff to pay Court fee on the amount of damages claimed by him. This order is challenged stating that the suit is filed for violation of copyrights under the Copyright Act. The main prayer is, injunction for violating the copyright and claim of damages etc. are only incidental. Therefore, even if Court Fees Act is applicable, Court fee is payable only u/s 50 of the Act and not u/s 22 of the Act. For this the examination of the plaint is necessary. In the plaint, it is stated that Respondents infringed the copyright and violated the provisions of Copyright Act and such infringement and alleged action of the Defendants caused irreparable loss and damages to the Plaintiff. Relief No. 3 is to direct the Respondents to file statements to sale and the profits claimed by the Defendants and relief No. 5 is to allow the suit with damages and costs. The amount of damages was estimated as Rs. 10,00,000.

It is submitted that Plaintiff filed an amendment application (I.A. 350/92) to increase the amount of damages Rs. 2.5 crores and the petition for amendment is still pending. So the amount of estimated damages is stated in the plaint. According to the Petitioner, he is entitled to more amount.

The 1st question to be looked into is whether the Court power to review the earlier order. The 1st order was passed u/s 12(1) of the Court Fees Act before written statement was filed by the Respondents. The Court after hearing the parties held that Court Fees Act is applicable and directed to pay Court fees. Thereafter, Respondents filed objections stating that since damages are claimed, the Court fee should be paid on the amount of damages claimed as provided u/s 22 of the Court Fees Act. In the written statement also specific plea was taken. u/s 12(2) of the Court Fees Act, any Defendant may in the written statement filed before 1st hearing of the suit or before evidence is recorded on the merits of the claim, plead that subject-matter of the suit has not been properly valid or the fees paid is not sufficient. If such a plea is raised Court is (sic)und to decide that issue. Accordingly, 3rd issue framed was regarding the sufficiency of Court fees. In the Division Bench decision of this Court in We-Build Private Ltd. v. Kama eswaran and Anr. ILR 1982 Ker 246 it was held that when such questions are raised in the written statement, the Court is (sic) to hear and decide that question. In Periyaswami Thanga Pandiyan v. S.R. Periyaswami Thevar 1953 KLT 475 it was held that question relating to the valuation refers only to the actual assessment or appraisement of the value the suit or appeal, the Court is entitled to revise the earlier order on the basis of market value and the Court is competent to re-consider the matter when there was an omission on the part of the Court to consider the provision of law when the original order was passed. From a reading of Section 12 as a whole, it is clear that Court can consider the correctness of the valuation of the suit at three stages. (1) Before the registration of the plaint or appeal. In such cases it will be open to the Court to review, correct and further review, its decision in the manner specified in Sub-section (1), (2). After the suit or appeal has been registered an issue on the question of Court fee can be raised by the Defendant or Respondent and the Court should decide the matter. In such cases the decision will be binding on the Court that rendered it unless a fresh decision is asked for by Fee the Court Fee Examiner and (3) On the objection of Court Examiners u/s 18 of the Act. Even though decision taken u/s 12(1) can be reviewed, decision taken u/s 12(2) and 12(3) cannot be reviewed by that Court. It can be reconsidered only by the Appellate Court u/s 12(4) of the Act. In this case before written statement was filed by the Respondents, the question of Court fee was decided u/s 12(1) of the Court Fees and Suit Valuation Act. What the Court has considered about the same in the impugned order on the basis of the written statement and the finding of Issue No. 3 is u/s 12(2) of the Court Fees Act. Therefore, the decision of the Court below is not lacking in jurisdiction. I am also of the view that decision of the Court below is correct on merits. Therefore, it cannot be interfered within a proceeding u/s 115 of the Code of Civil Procedure. This Court will not set aside a correct decision in this limited jurisdiction on mere technicalities. Correctness of the decision is discussed in the following paragraphs.

Section 22 of the Court Fees Act states that in a suit for money (including a suit for damages or compensation, or arrears of maintenance of annuities, or of other sums payable periodically) fee shall be computed on the amount claimed. Section 50 of the Court Fees Act is a residuary provision governing all suits which are not otherwise provided for. It is the contention of the Petitioner that since the main relief is an interim injunction claimed under the Copyright Act and the claim for accounting are only incidental, the suit valuation has to be made u/s 50 and not u/s 22 of the Court Fees Act. Section 50 of the Court Fees Act is a residuary section. Since claim for damages comes under specific Section 22, valuation should be on the basis of Section 22 for the relief No. 5 claimed in the plaint. Specific section should be preferred to residuary section. When there can be a parentage, it cannot be sent to an orphanage, i.e. residuary section. But it is clear that Petitioner has claimed damages. In the plaint it was estimated at Rs. 10,00,000. Of course, there is a claim for accounts also and it was also stated that Petitioner is entitled to more amount as damages. If more amount is entitled to the Petitioner, final decree can be passed only after paying balance Court fee according to the amount awarded. Even in a suit for accounts when estimated amounts are claimed, amount has to be paid on the estimated amount in the claim. When the Petitioner claims damages, he is bound to pay Court fee on the amount estimated as damages by him on his own assessment. In this case Rs. 10,00,000 was the amount estimated by him in the original plaint as damages, and that amount should be taken into account for the purpose of valuation and Section 22 of the Kerala Court Fees and Suits Valuation Act is applicable. Hence, the impugned order is correct in law and I see no grounds to interfere in the same. Therefore, the C.R.P. is Dismissed.