(1992) AIR(Kerala) 108 : (1991) 3 ILR(Kerala) 974 : (1991) 2 KerLJ 791 : (1991) 2 KLT 779
KERALA HIGH COURT
( Before : Varghese Kalliath, J; L. Manoharan, J )
ELIZABETH AND ANOTHER ETC. — Appellant
FRANCIS EDWIN AND OTHERS — Respondent
C.M.P. No’s. 859, 930 and 931 of 1991 in S.A. No’s. 248 of 1991-D and 263 and 264 of 1991-F
Decided on : 23-10-1991
Civil Procedure Code, 1908 (CPC) – Section 148, Section 149
S. Wajid Ali Vs. Mt. Isar Bano Urf Isar Fatma, AIR 1951 All 64
The Secretary, Government of Madras, Home Department and Another Vs. Zenith Lamp and Electrical Ltd., AIR 1973 SC 724 : (1973) 1 SCC 162 : (1973) 2 SCR 973
Mannan Lal Vs. Chhotaka Bibi, (Dead) by Lrs. B. Sharda Shankar and Others, AIR 1971 SC 1374 : (1970) 1 SCC 769 : (1971) 1 SCR 253
P.M. Ashwathanarayana Setty and Others Vs. State of Karnataka and Others, AIR 1989 SC 100 : (1988) 4 JT 640 : (1988) 2 SCALE 844 : (1989) 1 SCC 696 Supp : (1988) 3 SCR 155 Supp
Raj Kumar and Another Vs. Amer Singh and Others, AIR 1981 P&H 1
Achut Ramchandra Pai Vs. Nagappa Bab Balgya, AIR 1914 Bom 249 : (1913) 15 BOMLR 902
Kathyee Cotton Mills Ltd. Vs. R. Padmanabha Pillai and Others, AIR 1958 Ker 88
Varghese Kalliath, J.—Our learned and noble Brother T.L. Viswanatha Iyer felt some doubt as to the semantics, the drift tenor and impact of Section 52 and its provisos of the Kerala Court-Fees and Suits Valuation Act (hereinafter referred to as ‘the Act’). Section 52 of the Act provides for payment of court-fee for appeals. For easy understanding of the relevancy of the question, we quote Section 52 of the Act:
“52. Appeals:– 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.
Provided that, in levying fee on a memorandum of appeal against a final decree by a person whose appeal against the preliminary decree passed by that Court of the first instance or by the Court of appeal is pending, credit shall be given for the fee paid by such person in the appeal against preliminary decree.
Provided further that on third of the fee payable in an appeal shall be paid at the stage of admission of first appeal and second appeal and the balance shall be paid within such period, not later than fifteen days from the date of such admission as may be specified by the court; in case the appeals are admitted.
Provided also that the court may, for sufficient reasons to be recorded in writing, extend the period upto thirty days.”
2. The question forthrightly posed before us by Justice T.L. Viswanatha Iyer is as to this Court’s confines of power and jurisdiction to extend the time for remitting the 2/3rds of the court-fee payable after the admission of appeals. Petitioner contended that this Court has got power to extend the time beyond the period of thirty days if there are sufficient cause shown for entitling the petitioner for an extension of time to pay the balance court-fee. We issued notice to the Advocate General. Government Pleader appeared before us and submitted that the view of the Government is that Court’s power is not absolutely restricted to extend the time after the first stage to 30 days only.
3. The question was elaborately argued by counsel appearing in these cases. Being a matter which would form the practice of the courts and would be of great importance in so far as this question will crop up every day in the functioning of the court, we feel that we must deal with the question a little elaborately. Though these are petitions concerning extension of time for payment of balance court-fee really before us what we see is the entire litigant public in an interpretative polemics. The State is not competing the claim of the petitioners herein, but only aiding the court to interpret the provision in a meaningful, purposive and pragmatic manner so as to ensure the provision capable of granting a relief logically and letigimately entitled to blameless ‘sansreproche’ litigants before court. Taking this view of the matter, the Government Pleader very frankly and forthrightly submitted that this Court’s power is not totally curtailed to the outer limit of 30 days in the matter of extension of time for payment of balance court-fee. It was said that it will not promote justice and it will cause failure of the prime devoir behind the scheme of the amendment that was brought out after considerable deliberation over the report of a committee chaired by a former Chief Justice of this Court on the question of the proper levy of court-fee. There was a steady and, chorous brawl for reducing the court-fee payable by the litigant public. The question of quid pro quo and other ancillary and relevant aspects touching the dispensation of justice and the relevance of levying court-fee were considered in two far famed significant and lofty decisions of the Supreme Court; P.M. Ashwathanarayana Setty and Others Vs. State of Karnataka and Others, and The Secretary, Government of Madras, Home Department and Another Vs. Zenith Lamp and Electrical Ltd., . A thorough discussion by the eminent Judges shed a volume of clear light on the different shades of the question how to levy court-fee when a suitor comes with his paramount civil right to get relief either from the State or from his fellow citizens from an established court.
4. In these cases, we are not called upon to investigate or explore such questions. The question before us poses a gray area; where certainty is absolutely necessary. What is the intention behind the second and third provisos of Section 52 of the Act should be made clear to set at rest doubts as to the width, scope and content of the provisos by unmasking the provisions to lay bare the intention and purpose of the legislature manifested in those beneficial provisions. We are bound to do it otherwise it will create to this Court as well as to the lower courts difficulties since the question may arise perennially ever and anon in all courts. We feel that our pronouncement may set at rest, what has to be done by the court when a suitor asks for extension of time for payment of balance court-fee in view of Section 52 of the Act. It may appear that the question raised is a simple one and a plain reading of the Section itself may afford an answer to the query raised in these cases. Obviously Justice Viswanatha Iyer thought that the matter is not so simple. His Lordship thought that it requires serious consideration and that too by a Division Bench.
5. As we said earlier, Section 52 of the Act has been amended as part of the scheme for modulating and mitigating the great burden of payment of court fee by the litigant public. We feel that the intention of the legislature does not admit of a construction of the provision which would make it tenuous ethereal or unsubstantial. The committee as well as the Government felt that the burden is heavy on the litigant public in the matter of payment of court-fee. A meaningful and responsive; a reconcilable and gracious approach in the matter of court-fee was found to be absolutely necessary and that resulted in the amendment of the Court-Fees Act. This benign intention pervades over all the provisions in the Act and so naturally it should be informed in the matter of interpreting the provisions of the Act.
6. We now turn to understand the meaning and intention of the provisions clearly keeping in mind that in interpreting a statutory provision we should adopt such construction as will ‘promote the general legislative purpose underlying the provisions’ and we do it without forgetting the words of Lord Develin that “if a judge leaves the law and makes his own decision, even if in substance they are just he loses the protection of the law and sacrifices the appearance of impartiality which is given by adherence to the law”.
7. Though the Court-fees Act is said to be a fiscal enactment, it is not an ordinary fiscal enactment, which should attract all the shackles and bridles of a fiscal enactment. This enactment may contain a levy by the State and method by which the levy is collected by the State. It can be contended that in substance, it cannot be treated as a processual law. Its main character is not processual, but substantive in the sense that it creates fiscal obligations on the part of the citizen. But in the matter of court-fee when the citizen wants relief from the court on the basis that he has been wronged by his fellow citizens or by the State and when the citizen invokes the fundamental obligations of the State to render justice to him and he has been asked to pay a small amount for attending to his complaint, can it be said that this is a law which obligates a citizen to pay some amount and it is strictly a law which has got all the characteristics of taxing statute.
8. In the Full Bench decision, S. Wajid Ali Vs. Mt. Isar Bano Urf Isar Fatma, it was held : “Both the CPC and the Court-fees Act deal with matters relating to procedure — one deals with the procedure to be followed when a suit or other proceeding is instituted, and the other deals with the amount of court-fee payable on documents presented in a suit or proceeding. They are in pari materia and it is a well recognised principle of interpretation that statutes in pari materia ought to be read as parts of one whole and as supplementing each other”.
9. The proviso strikes a mandatory note and perhaps designated and intended to facilitate the payment of the balance of court fee payable on admission within a reasonably short time. A plain reading of the provision and the requirements envisaged in the provision transcend the directory level and may perhaps, be considered a mandatory need. The use of ‘shall’ in the words of His Lordship Justice Krishna Iyer — a word of slippery semantics, is not decisive and the context –purpose, nature of the provision, scheme of the enactment, nature of the injury that would be caused and non-fixation of penalty of non-compliance of the provision or the neglect of the provision should be borne in mind before finally concluding the violation of the requirement under the provision, is fatal on account of the use of the word ‘shall’ — a word of slippery semantics. We have already noted that the provision for payment of court-fee is not to be treated as a substantive law, but it is processual in character and it is complementary to the Code of Civil Procedure. We must also consider that processual law is not to be a tyrant, but it should always allow some play in the joints. It should not obstruct, but should try to promote justice. It is always stated very wisely that “procedural prescriptions are the hand-maid and not the mistress, a lubricant, not a resistant in the administration of justice”. Procedural law put in the crucible of interpretative process if results a finding that non-compliance of that procedural rule would cause real prejudice in doing justice to parties, that provision should not be understood as mandatory. At any rate, the word ‘shall’ alone should not be the guide of construction of the Section.
10. We have always to remember that the prime devoir of the court is to render justice to suitors before the court. Because of the peculiar economic situation, even for doing the primary duty of the State, viz., to do justice in controversial matters between persons and persons and persons and the State, the State is demanding a fee for it. Viewed in this perspective, the question is whether we should say that the direction that the balance amount has to be paid within 15 days from the date of admission of appeal and the maximum period that can be granted as extension of time is only 30 days can be regarded as mandatory or to be moderated as a wholesome direction to be complied with in time or within an extended time fixed by the court taking into account the circumstances of the case presented before the court. Will it promote justice, if such a power of extension is denied to the court, is also a question that has to be considered in understanding the meaning, purpose and intention of the provisos contained in Section 52 of the Act.
11. Now, we shall advert to certain provisions of the CPC since both these enactments should supplement and complement one and the other to have full operation of the provisions. Order 7 Rule 11(c) of the CPC provides that “Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so”, the plaint shall be rejected. The power is given to the court to fix the time as well as an additional power is given for extending the time fixed for reasons to be recorded by the court.
12. Order 41 Rule 3(1) of the CPC deals with rejection of memorandum of appeal. It does not specifically state anything relating to payment of court-fee, but it is stated “Where the memorandum of appeal is not drawn up in the manner hereinafter prescribed, it may be rejected, or be returned to the appellant for the purpose of being amended within atime to be fixed by the Court or be amended then and there”.
13. Sub-section (2) of Section 107 of the CPC makes it clear that the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the CPC on Courts of original jurisdiction in respect of suits instituted therein. So naturally, Order 7 Rule 11(c) of the CPC is attracted in the case of an appeal also. Section 141 of the CPC supplements Section 107 of the C.P.C. by providing that procedure provided in the Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction.
14. Sections 148 and 149 of the C.P.C. are important. Section 148 of the C.P.C. is a benign and beneficial provision directed for doing justice in appropriate cases of unforeseen circumstances experienced by the litigants. It allows the court to enlarge time where any period is fixed or granted by the court for the doing of any act prescribed or allowed by the Code, the discretion is granted to the court to enlarge time from time to time even after the period originally fixed or granted may have expired and the order is in terrorem writ automatic lethal consequence. Section 149 of the C.P.C. is a specific provision regarding the power to make up the deficiency of court fees. It provides that where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court fees has not been paid, the court may, in its discretion at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such court fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance. It gives wide power to the court. It is an enabling Section and its effect is to confer a retroactive validation on a document which is not duly stamped under the Court-Fees Act. If the court is satisfied that there existed circumstances which debarred a party from affixing requisite court-fees to the document presented, the court will exercise discretion in favour of the party and permit it to make up the deficiency even if on the date the document if it were to be filed for the first time its filing would have become barred by time. Once such discretion is exercised and the party is allowed to make up the deficiency, the proper filing of the document shall date back to the day when it was initially filed and not when the deficiency was actually made up. In fact, the Legislature intended that the court should have a free and unshackled discretion in this matter, which is normally expected to be exercised in favour of the litigant except in cases of contumacy or positive mala fides or reasons of a similar-kind — See Achut Ramchandra Pai Vs. Nagappa Bab Balgya, and AIR 1938 Lah 361 (Jagat Ram v. Misar Kharaiti Ram).
15. We have pointed out these provisions only to spot light the fact that the provisions of the Court-Fees Act have to be interpreted as if they are supplementary to allied provisions of the Code of Civil Procedure.
16. Now, we may refer to the Full Bench decision of this Court reported in Kathyee Cotton Mills Ltd. Vs. R. Padmanabha Pillai and Others, ) which was more or less directly concerned with a similar question now to be decided. The Full Bench was considering a question regarding the power of the court to extend the time for payment of court fee beyond the period of 30 days as provided in the proviso incorporated in Order 7 Rule 11 of the C.P.C. by the Travancore-Cochin High Court. Order 7 Rule 11 of the C.P.C. as it stood at that time reads as follows : —
“The plaint shall be rejected in the following cases:– (a)………………………..
(b) Where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff on being required by the court to supply the requisite stamp paper within a time to be fixed by the court, fails to do so : (d) …………….. (Provided that the time granted under Clauses (b) and (c) shall not exceed thirty days in all)”.
It was strenuously contended before the Full Bench that the court has only the power to grant the maximum period of 30 days for remitting the additional court fees (A contention which has to be resolved in the case at hand). It was argued that the trial court granted time beyond the total period allowed by the proviso and so the order granting extension of time by the trial court is illegal and one passed without jurisdiction in the light of the proviso framed by the Travancore-Cochin High Court. The chop logic of the opposite party was that the proviso to Rule 11 of Order 7 of the C.P.C. is only in the nature of a direction to the lower court as to how it should exercise its discretion and that it is not mandatory. Further, it was contended that even otherwise the court has got ample powers under Sections 148 and 149 of the C.P.C. for granting necessary extension of time at the discretion of the court. To the question as to the power of the court in the light of the provisions contained in Sections 148 and 149 of the C.P.C., it was contended that Sections 148 and 149 of the C.P.C. are mutually exclusive and that in the matter of court-fees Section 148 of the C.P.C. will not apply and that Section 149 of the C.P.C. is a special provision relating to court-fees, and when there is such a special provision dealing with a particular matter, the provisions of Section 148 of the C.P.C., which are very general in nature, will not apply. Further it was argued that Section 149 of the C.P.C. has to be read along with Rule 11 of Order 7 of the C.P.C. and when the court has exercised its power of granting a total period of one month as prescribed in the Code, the court becomes functus officio.
17. An attempt can be made to distinguish the Full Bench case and the case at hand on the basis that the order granting time in the Full Bench case is by a provision in C.P.C. and by the court; unlike in this case where time is statutorily fixed by a different statute. A careful examination would reveal that it is of no distinction of consequence or merit. It is significant to note that Section 52 of the Court-fees Act did not determine a time limit as a thumb rule by the statutory provision, but it directs the court to fix the time when it said “the balance shall be paid within such period not later than 15 days from the date of such admission as may be specified by the court in case the appeals are admitted”. So the period has to be fixed by the court. Of course, an outer limit of time has been fixed at the time of admission. At the same time again power is given to court to extend the time up to a period of 30 days. There also, the fixation is by a court’s order. This mechanic of directing the court to fix the time within certain bounds is not accidental, it is intentional otherwise it will create difficulty in dealing with the appeal after admission by the court. The court may have no power to reject it so all the provisions of the C.P.C. have to be used as supplementary power read with Section 52 of the Court-fees Act. So it is possible to argue that Section 148 of the C.P.C. is also applicable. Truly and in substance the enlargement of time in the matter of payment of court-fee u/s 52 of the Court-fees Act is by the order of the court. So long as it is the order of the court, Section 148 of the C.P.C. is also applicable. But since Section 149 of the C.P.C. is a specific provision which gives the court wide power to extend time for adequate reasons, it is not at all difficult to invoke that power in the matter of extension of time for the payment of balance court-fee u/s 52 of the Court-fees Act. In Section 149 of the C.P.C. the language used is “at any state the court can allow the person to pay the deficit court-fee and that provision has been interpreted to mean that it contemplates power to court to extend time to pay deficiencies in court-fees even after the period of limitation for filing an appeal has expired” — See AIR 1935 Pat 201 (1) (Singasan Tewari v. Gaya Tewari).
18. In AIR 1978 SC 335 (Indian Statistical Institute v. Associated Builders) the Supreme Court observed that the deficiency in stamps in proceedings is concerned u/s 149 of the C.P.C. the court has ample jurisdiction to allow the person by whom such fee is payable to pay such court-fees at any stage.
19. Of course, the proviso added by the Travancore-Cochin High Court under Order 7 Rule 11 of the C.P.C. is mandatory in form. It has said that the time granted under Clauses (b) and (c) shall not exceed 30 days in all. Further, it has to be noted that the consequences of non-payment of deficit court-fees are provided for under Rules 12 and 13 of Order 7 of the C.P.C. Rule 7(b) and (c) contemplates the court giving time to comply with its requirement. The expression used in Clause (b) is “to correct the valuation within a time to be fixed by the court” and the expression used in Clause (c) “the plaintiff on being required by the court to supply the requisite stamp paper within a time to be fixed by the court”. (We are referring to the provisions of Order 7 of the C.P.C. as it stood then in the case reported in Kathyee Cotton Mills Ltd. Vs. R. Padmanabha Pillai and Others, After quoting the provisions, the Full Bench said that the time is fixed by the court both under Clauses (b) and (c) of Rule 7 and Section 149 of the C.P.C. is squarely applicable and further said that the period fixed or granted by the court is within the meaning of Section 149 of the C.P.C. for doing an act prescribed or allowed. by the Code. Section 148 of the C.P.C. also can be pressed into service. Section 148 of the C.P.C. would take in cases where time fixed is a period prescribed by Rules, since the language used is “doing of any act prescribed or allowed by the Code”, since the Court-fees Act has to be considered as complementary and supplementary to the provisions of the C.P.C. and the sections in the Court-fees Act has to be construed in that sense only. So the period prescribed by the Court-fees Act also will come within the sweep of Sections 148 and 149 of the C.P.C.
20. It has to be remembered that the Full Bench, without any hesitation, held that even though the provision is worded in a mandatory form by using the word ‘shall’, it has to be understood in the broader conspectus of the circumstances and context in which it has been used to mean directory in character which allows the court to exercise its discretion to meet the ends of justice.
21. In Mannan Lal Vs. Chhotaka Bibi, (Dead) by Lrs. B. Sharda Shankar and Others, the Supreme Court observed : “In our view in considering the question as to the maintainability of an appeal when the Court-fee paid was insufficient to start with but the deficiency is made good later on the provisions of the Court-fees Act and the CPC have to be read together to form a harmonious whole and no effort should be made to give precedence to provisions in one over those of the other unless the express words of a statute clearly override those of the other”. Further it said thus:– “Apart from the decisions bearing on the point, there can in our opinion, be no doubt that Section 4 of the Court-fees Act is not the last word on the subject and the Court must consider the provisions of both the Act and the Code to harmonise the two sets of provisions which can only be done by reading Section 149 as a proviso to Section 4 of the Court-fees Act by allowing the deficiency to be made good within a period of time fixed by it”.
22. Before concluding this order, we may point out that there was a view taken by different High Courts that Order 7 Rule 11(c) of the C.P.C. has no application to appeals and therefore the appellate court was not bound to call upon the appellants to make up the deficiency in the court-fee and could straightway reject an appeal if the memorandum thereof did not bear the court-fee prescribed by law. On this view, there had been a wide ranged divergence of judicial opinion. The whole subject has been considered in depth in a Full Bench decision of Punjab and Haryana High Court reported in Raj Kumar and Another Vs. Amer Singh and Others, The court after considering the divergent view of various High Courts said “under Order 41, Rule 3 of the Code of Civil Procedure, the appellate Court is not bound to allow the appellants an opportunity to make up the deficiency in Court-fee. But Order 41, Rule 3 of the Code, in no way, whittles down the exercise of discretion of the appellate Court u/s 149, whereunder an opportunity can be granted to the appellants to make up the deficiency in Court-fee”.
23. There is a catena of decisions taking a purposive interpretation consistent with the intention of the legislature and the mischief sought to be redressed by the enactment and the other relevant context and circumstances where even though a provision is couched in a language apparently mandatory in character or prohibiting certain things; not as a rule; on a pedagogic approach that word indicating a prohibition or indicating a mandatory provision shall never be construed as directory –See : AIR 1978 SC 1351 (Smt. Lila Gupta v. Laxmi Narain).
24. Considering all these aspects of the matter, we are of opinion that the courts have got adequate powers to enlarge the time beyond the period of 30 days mentioned in the third proviso to Section 52 of the Court-fees Act. Of course, it is a discretionary power and the discretion has to be exercised judicially on sound and legal reasons.
25. In C. M. P. No. 859/91 in S. A. No. 248/91-D the balance court-fee was paid cm 26-6-91 immediately after the due date, viz., 25-6-1991. It was only an inadvertent omission and we are satisfied that it is a fit case where the application has to be allowed C.M.P. No. 859/91 in S.A. No. 248/91-D is allowed.
26. In C. M. P. No. 930/91 in S. A. No. 264/91-F there is a delay of 7 days for paying the balance court fee. Petitioner has filed an affidavit in support of the application, The ground stated is that he was not familiar with the new provisions of the Court-fees Act. The balance Court-fee payable was only Rs. 6/-. We cannot see any contumacy and bad intention not to pay the balance Court-fee of Rs. 6/-. If the appeal, S.A. No. 264/91-F is rejected on the ground of non-payment of Court-fee and that too non-payment of the balance Court-fee of Rs. 6/-, it would certainly he a miscarriage of justice. We see no reason to disallow this application. C.M.P. No. 930/91 in S.A. No. 264/91-F is allowed.
27. Similar is the position in C.M.P. No. 931/91 in S.A. No. 263/91-F. The balance Court-fee payable was only Rs. 4/-. Adequate grounds are stated for the omission to pay t he balance Court-fee. We are satisfied that it is a fit case where we should allow the application, C.M.P. No. 931/91 in S.A. No. 263 of 1991-F is allowed.
Counsel for Appearing Parties
Govt. Pleader, T.V. Ajayakumar and S. Venkitasubramania Ayyar, for the Appellant; Pirappancode V. Sreedharan Nair, for the Respondent