Kalliappa Goundan vs Kandaswami Goundan

Venkatasubba Rao, J.—In the lower appellate Court the plaintiff, who was the appellant, paid as court-fee on his memorandum of appeal

Rs. 100. The District Judge held that the correct fee payable was Rs. 412-7-0. The appellant failed to pay the deficit court-fee and the appeal was

dismissed. From the dismissal he filed a second appeal in this Court, which he valued at Rs. 312-7-0, being the difference between Rs. 412-7-0

and Rs. 100. On that valuation he paid a court-fee of Rs. 35-15-0. Madhavan Nair, J., holding that on the second appeal the proper fee payable

was Rs. 412-7-0, directed the appellant to bring into Court the balance of Rs. 376-8-0. This order was not complied with and the second appeal

was dismissed.

The question we have to decide is, what was the subject-matter in dispute in the second appeal? A possible argument that the subject-matter is

incapable of valuation and that therefore Schedule II, Article 17-B applies, may be at once dismissed. Mr. Srinivasa Aiyangar who appears for the

Government Pleader does not put forward any such contention; nor has it found favour in any case dealing with this subject.

The provision then that is applicable is Article 1, Schedule I of the Court-Fees Act. In such a case as this, what is the subject-matter in dispute

within the meaning of that article This point has been fully considered in a valuable judgment of Schwabe, C.J., which unfortunately has not been

reported and to which the learned Judge''s attention was not called. ""I think"", observes Schwabe, C.J., ""that the subject-matter in dispute, meaning

the subject-matter in dispute in appeal, has the simple meaning applicable to this case, namely, the amount of stamp in dispute between the parties"".

(S.R. No. 1923 of 1923.) This view receives support from a case decided so far back as in 1882 Durga Prasad v. Rughubar Dial (1882)

M.W.N. 244 The Court-Fees Act is a taxing statute and it is settled law that the intention to impose a charge upon the subject must be shown by

clear and unequivocal language. (Mr. Viswanatha Aiyar''s Court-Fees Act, pp. 4 to 9.) If two constructions of a fiscal enactment are equally

possible and reasonable, the construction more favourable to the subject must be enforced. See Ramaswami Chettiar v. Commissioner of Income

Tax (1928) 56 M.L.J. 141 (F.B.). What then is the subject-matter of the appeal? According to Schwabe, C.J., the dispute in the lower Court had

reference only to the court-fee payable; the difference between the court-fee paid and the court-fee demanded is the matter in dispute in the

second appeal. That seems to be the natural and plain meaning of the words and it would be wrong to put a forced construction on the language.

The alternative contention is that the subject-matter in dispute is the subject-matter of the suit itself. In the differing judgments in Ganpati v.

Venkatesh AIR 1935 Nag. 83 (F.B.) the two rival views have been fully expounded. In my opinion the view taken by Niyogi, A.J.C., is, with all

respect, the sounder one. As he points out, the rejection of a plaint means only a refusal to entertain the suit and can in no case imply a conclusive

determination of the rights of the parties. Order 7, Rule 13, Civil Procedure Code, which provides that the rejection of a plaint, inter alia, for failure

to pay the deficit court-fee, shall not preclude the plaintiff from presenting a fresh plaint, lends support to that view. As pointed out in his judgment,

granting that the rejection amounts to a decree within the meaning of the Code, it is difficult to see how it affects the question of court-fee. The

question that still has to be determined is, what is the subject-matter in dispute? As already said, I see no reason why these words should not

receive their natural meaning. The Letters Patent Appeal is allowed with the plaintiff''s costs to be paid by the defendant. The second appeal is

restored and must be heard. We make an order expediting its hearing. This being a pauper appeal, no question of refund of court-fee on the

Memorandum of Letters Patent appeal arises.

Abdur Rahman, J.

I concur. The decision of this appeal depends, as pointed out by my learned brother, on a true construction of the words ""subject-matter of

appeal"" employed in Schedule I, Article 1 of the Court-Fees Act. It is a matter of common experience that the subject-matter of every appeal

does not necessarily coincide with the subject-matter of every suit in regard to which the appeal has been filed. In order to ascertain the correct

valuation of each appeal for purposes of court-fee, one will have to ascertain the subject-matter of that appeal. What then is the subject-matter of

this appeal? A mere cursory glance at the grounds of appeal filed on behalf of the appellant would show that he had come up to the High Court

with the object of testing the correctness of the order passed by the District Judge, who had ordered him to pay an additional court-fee of Rs.

312-7-0 and the failure to pay which had resulted in the rejection of his appeal. He had therefore valued his appeal to the High Court at that figure.

The learned Judge of the High Court refused to entertain the appeal unless the appellant made up the deficiency between the value placed by him

and that ordered by the District Judge. He failed to comply with this order and his appeal was accordingly dismissed. This has given rise to this

appeal under the Letters Patent. It might be mentioned that this appeal has been valued at the figure which the appellant was required to pay by the

learned Judge of this Court in addition to what he had already paid on his appeal.

From what has been stated, it would be clear that the subject-matter of this appeal or the appeal against which the present appeal has been filed

was the difference in the value of the court-fee which the appellant was called upon to pay and which he had failed to do. This should be the value

then at which the appeal should be valued. The case might be looked at from a slightly different point of view as well. The Government Pleader

contended that it was essential for the appellant to bring the valuation of the appeal to the High Court in a case like this in conformity with the

valuation of the suit and to pay a court-fee of Rs. 412-7-0. If this view is allowed to prevail, it would follow that although the appellant allowed his

appeal before the District Judge to be rejected by refusing to make up the deficiency, he must have nevertheless paid a court-fee when filing the

appeal, necessarily larger that the deficiency which he was required to make up in order to have the point adjudicated whether his action in refusing

to comply with the order to pay an additional court-fee was corrector otherwise. The fact that he would be entitled to a refund in the event of his

success could hardly be of any consolation to him, as he is all the same running a risk of his appeal, on the question of court-fee alone, being

decided against him and losing the whole of the amount paid by him on appeal in the bargain.

The argument which found favour with the majority of the Full Bench of the Nagpur Judicial Commissioner''s Court in Ganpati v. Venkatesh

AIR 1935 Nag. 83 (F.B.) does not, with great respect to the learned Judges, who held this view, impress me. It is undoubtedly true that the

rejection of a plaint brings the litigation in that Court and in that case to an end, but it is incorrect to suggest, I mention to say with deference, that

the rights of the parties have been or can be deemed to have been completely or finally determined. The very fact that a second suit is maintainable

militates against the theory of finality.

There is no doubt that the order rejecting a plaint has been included by the legislature within the definition of a decree - but its specific mention in

the definition suggests that if it were not so mentioned, it should not have fallen within that definition. This has been obviously done with the object

of providing for an appeal against that order and save it from being otherwise attacked than by an appeal; but it does not lead to an inference in my

opinion that the rights of the parties also should be deemed to have been conclusively determined. The fact remains that when a plaint is rejected

on account of deficiency in the court-fee on the plaint the only thing which has been decided in the suit is the question of court-fee alone and it is

this particular lis which forms the subject-matter of this appeal. It would therefore follow that the court-fee should be paid on the difference

between the court-fee paid by the appellant and demanded from him.