Sreekrishnan vs The State of Kerala

Kochu Thommen, J.—The order of the learned District Judge, Trivandrum, determining the court fee payable for an appeal u/s 45A(4) of the Kerala Stamp Act, 1959 (Act 17 of 1959) (the Stamp Act) is challenged in this civil revision petition. The learned Judge held that ad valorem court fee as provided under Article 1 of Schedule I of the Kerala Court Fees and Suits Valuation Act, 1959 (Act 10 of 1960) (the Court Fees Act) was payable.

Counsel for the revision Petitioner Shri Vyasan Poti contends that the court-fee payable is as provided under Article 3(1) of Schedule II of the Court Fees Act.

The appeal arose from an order made by the District Collector under Sub-section (2) of Section 45A of the Stamp Act. Sub-section (4) of that section provides that any person aggrieved by an order of the Collector may appeal to the District Court. Such appeals are regulated by the same procedure as in the case of appeals against orders of a civil court [See Rule 14 of the Kerala Stamp (Prevent of Under Valuation of Instruments) Rules, 1968]. Clause (i) of Article 3 of Schedule II of the Court Fees Act reads as follows:

Section 52 of the Court fees Act says that the fee payable in an appeal shall be the same as the fee that would be payable in the court of first instance on the subject-matter of the appeal. The Collector for the purpose of Court Fees Act is a court, for Section 3(ii) of that Act defines a court as follows:

''Court'' means any Civil, Revenue, or Criminal Court and includes a Tribunal or other authority having jurisdiction under any special or local law to decide questions affecting the rights of parties;

It is therefore clear that an order made by the Collector u/s 45A of the Stamp Act which is appealable under Sub-section (4) thereof would be an appeal within the meaning of Section 52 of the Court Fees Act. No fee is however payable in the court of first instance, which, in the present case is the Collector. Consequently the only provision that is applicable for the purpose of court fee in respect of an appeal from an order of the Collector made u/s 45A of the Stamp Act is Article 3 of Schedule II of the Court Fees Act. In other words, the appeal memorandum has to bear a fee of One Rupee.

The learned District Judge held that, in view of the fact that the subject-matter of the order under appeal was capable of valuation, fee was payable on an ad valorem basis in terms of Article 1 of Schedule I of the Court-Fees Act. This provision reads as follows:

While this provision refers to appeals generally, Article 3 of Schedule II refers specifically to appeals from an order. The latter being a specific provision governing appeals from orders, it is the fee mentioned under that provision which applies to appeals from orders of the Collector u/s 45A of the Stamp Act. It may be stated here that in respect of several orders referred to in Section 104 and Order XLIII of the CPC where the subject-matter of the dispute is capable of valuation, ad valorem court fee has not been provided for. For example, reference may be made to orders under Sections 35A and 95 of the CPC [See Section 104(ff) and (g)]. These provisions are pointed out only to show that the reasoning of the learned Judge was wrong, and that it is not correct to say that wherever the subject-matter of an order is capable of valuation ad valorem court fee has to be paid.

For the reason that I stated earlier, the court-fee payable in respect of the appeal in question is one rupee as provided under Article 3(1) of Schedule II of the Court-Fees Act.

The civil revision petition is accordingly allowed. The parties will bear their respective costs.