Calculation of court-fee: For calculation of court-fee, there does not exist any distinction between a situation attracting Rule 10 on the one hand and Rule 11 on the other. The court-fee is to be calculated on the amount claimed and not on the amount decreed. For the said purpose, what is relevant is the final decision taken by the court in this behalf. Rule 11 directing the pauper plaintiff to pay the court-fee can be made in the four different situations:

(i) When the plaintiff failed in the suit.

(ii) Where the plaintiff is dispaupered.

(iii) Where the suit is withdrawn.

(iv) Where the suit is dismissed under the circumstances specified in clause (a) or clause (b).

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AIR 2007 SC 2698 : (2007) 6 SCR 886 : (2007) 5 SCC 698 : (2007) 7 SCALE 777

SUPREME COURT OF INDIA

R.V. Dev alias R. Vasudevan Nair

Versus

Chief Secretary, Govt. of Kerala and OTHERS

(Before : S. B. Sinha And Markandey Katju, JJ.)

Civil Appeal No. 2536 of 2007 (arising out of S. L. P. (C) No. 13885 of 2004), Decided on : 15-05-2007.

Civil Procedure Code, 1908—Order 33, Rules 10 and 11—Suit by indigent person—Calculation of court-fee—There does not exist any distinction between a situation attracting Rule 10 on one hand and Rule 11 on the other—The court-fee is to be calculated on amount claimed and not on amount decreed—What is relevant is final decision taken by court in this behalf.

Counsel for the Parties:

A. Raghunath, for Appellant

P. V. Dinesh, Mrs. Sindhu T. P. and K. R. Sasiprabhu, for Respondents.

Judgemen

S. B. Sinha, J—Leave granted.

2. Interpretation of the provisions of Order XXXIII, Rule 10 and Order XXXIII, Rule11 of the Code of Civil Procedure as amended in the State of Kerala is in question in this appeal which arises out of a judgment and order dated 11.7.2003 passed by the High court of Kerala at Ernakulam in CMP No. 1323 of 2003 in A.S. No. 156 of 1994. Appellant herein filed a suit for damages against the State of Kerala inter alia on the premise that he had lost an eye having been a victim of violence of political vendetta as he had suffered facial injury as a result of throwing of an acid bulb on his face. The said suit was filed in terms of Order XXXIII of the Code of Civil Procedure as he claimed himself to be an indigent person. The persons accused of throwing acid bulb on the face of the appellant, however, stood acquitted by a judgment dated 18.2.1981.

3. He filed a suit for damages in the year 1988. The State denied and disputed its vicarious liability for payment of any damages suffered by the appellant. The suit was dismissed by the learned Subordinate Judge, Cherthala by a judgment and decree dated 30.7.1991 inter alia holding:-

(i) The suit was barred by limitation.

(ii) Appellant had not established that the Police was duty-bound to give protection to him.

4. An appeal was preferred thereagainst in the year 1994. The said appeal was also allowed to be filed by him as an indigent person. The said appeal was dismissed by the High court by a judgment and decree dated 13.9.2002 inter alia holding that the suit was rightly held to be barred by limitation. It was furthermore directed:-

“16. Hence we find that the above appeal is devoid of any merits. Therefore the appeal is dismissed confirming the judgment and decree passed by the lower court.”

5. A miscellaneous application was filed by the appellant in the said suit purported to be for clarification of the said direction of the High court contained in its judgment dated 13.9.2002. The High court by reason of the impugned judgment refused to do so relying on some decisions relied on by the parties before it stating:-

“18. It is clear from the above rulings of the various High courts and this court that a person who is permitted to sue as indigent person is liable to pay the court-fee which would have been paid by him if he was not permitted to sue as indigent person, if he fails in the suit after trial or without trial since the ultimate decision or the result of the suit and not the manner or mode in which the decision is arrived is envisaged under Rule 11 of Order XXXIII of the Civil Procedure Code.

19. The counsel for the petitioner submitted that in view of the scheme of Order 33 of the C.P.C. failure in a suit cannot be equated with the dismissal of the suit since dismissal has been dealt with separately under clauses (a) and (b) of Rule 11. According to him, failure should be a total failure of the entire claim in the suit and the suit should be devoid of any merit, any rhyme or reason without possessing a modicum of success. He argued that in this case the petitioner-appellant failed in the suit due to lack of evidence and since the suit is dismissed for insufficiency of evidence, it cannot be treated as failure as contemplated in Rule 11 of Order 33 of the C.P.C. He further argued that in the judgment passed by this court in appeal this court merely dismissed the appeal and has not held that the plaintiff has failed in the suit. Therefore, according to him, Rule 11 of Order 33 is not attracted at all in this case.”

It was further held:-

“23. The question whether the plaintiff suing as a pauper is liable to pay court-fee when he succeeds in respect of part of the claim made by him in the suit was considered and settled by the Madras High court way back in the year 1891. In the decision reported in ILR (1891) 14 Madras 163 (Chandrareka v. Secretary of State for India) a Division Bench of the Madras High court held that the plaintiff in that partition suit who obtained a decree for ` 100/- being a moiety of the property claimed is liable to pay court-fee with regard to the sum of ` 100/- and the 1st defendant who contested the suit is liable to pay court-fee for the balance amount under Section 411 of the C.P.C. of 1882.”

It was opined:-

“31. Hence, the petitioner who is the plaintiff in the suit and appellant in the appeal cannot escape from his liability to pay the court-fee payable on the plaint and on the memorandum of appeal in this case as he failed in the suit and appeal by merely contending that he still continues to be an indigent person and a man of no means.

32. The questions whether the indigent plaintiff is liable to pay the court-fee on his failure in the suit and whether the State could recover or realize the court-fee payable by him under due process of law are separate and distinct matters to be considered independently. We are not called upon to pronounce on the issue as to whether the State will be able to realize the court-fee payable on the plaint and memorandum of appeal by the petitioner in this case under due process of law.

33. It is also pertinent to note that the petitioner herein by filing the above petition purporting to be for correction of the judgment and decree under Sections 151 and 152 of the C.P.C. in fact seeks review of the judgment and decree passed by this court in the above appeal which is not permissible under law.”

6. Appellant is, thus, before us.

7. Mr. A. Raghunath, learned counsel appearing on behalf of the appellant in support of this appeal submitted that Order XXXIII, Rule 11 of the Code of Civil Procedure will have no application unless the conditions precedent laid down therefor are satisfied. It was urged that a person despite dismissal of a suit and an appeal filed by him in forma pauperis may continue to be an indigent person and the Scheme of the Act will be defeated if a direction is issued to recover the amount of court-fee from him.

8. Order XXXIII of the Code of Civil Procedure deals with suits by indigent persons whereas Order XLVI thereof deals with appeals by indigent persons. When an application is filed by a person said to be indigent, certain factors for considering as to whether he is so within the meaning of the said provision is required to be taken into consideration therefor. A person who is permitted to sue as an indigent person is liable to pay the court-fee which would have been paid by him if he was not permitted to sue in that capacity, if he fails in the suit of the trial or even without trial. Payment of court-fee as the Scheme suggests is merely deferred. It is not altogether wiped off. Order XXXIII, Rule 10 of the Code of Civil Procedure provides for the consequences in regard to the calculation of the amount of court-fees as a first charge on the subject-matter of the suit.

9. For calculation of court-fee, there does not exist any distinction between a situation attracting Rule 10 on the one hand and Rule 11 on the other. The court-fee is to be calculated on the amount claimed and not on the amount decreed. For the said purpose, what is relevant is the final decision taken by the court in this behalf. Rule 11 directing the pauper plaintiff to pay the court-fee can be made in the four different situations:

(i) When the plaintiff failed in the suit.

(ii) Where the plaintiff is dispaupered.

(iii) Where the suit is withdrawn.

(iv) Where the suit is dismissed under the circumstances specified in clause (a) or clause (b).

10. When, therefor, the plaintiff fails in the suit or plaintiff is dispaupered, the same has nothing to do with dismissal of the suit under the circumstances specified in clauses (a) and (b).

11. Submission of Mr. A. Raghunath, learned counsel for the appellant that clauses (a) and (b) would attract all the four situations contemplated by Order XXXIII, Rule 11 in our opinion is misconceived. Clauses (a) and (b) would be attracted only when the suit is inter alia dismissed by reason of the contingencies contained in clauses (a) and (b). Clauses (a) and (b) will have no bearing and/or relevance, when a suit is dismissed on merit or when the plaintiff is dispaupered.

12. For the purpose of construction of the aforementioned provisions, it is necessary to give effect to all the conditions mentioned therein. As in three out of the four contingencies in the Rule, the order has to be passed when the suit comes to an end, it will be a fair construction to hold that clauses (a) and (b) refer to the fourth condition. We fail to see as to how the same can be held to be attracted even in the former case. Each situation as referred to hereinbefore is distinct and different. The word “or” is disjunctive and thus must be given effect to independent of the other cases.

13. Reliance placed on a decision of the learned Single Judge of the Patna High court in Ram Saran and Others v State of Bihar and Others [AIR 1959 Patna 384], in our opinion does not advance the case of the appellant inasmuch as therein the court was concerned with a situation where a question arose as to what would happen if the suit is decreed in part. It was held:-

“8. From Rules 10 and 11 of Order 33, it follows, therefore that if the plaintiff’s suit is dismissed, the court has no discretion or option in the matter, but to order the plaintiff or any added co-plaintiff to pay the court-fee. In such a case, the court cannot direct the court-fee to be paid by the defendants. It must be paid only by the plaintiff, or the co-plaintiff as the case may be, and by none else. If, however, the plaintiff succeeds in the suit, the court has been given a discretion to direct from which party the court-fee shall be payable. In such a case, the court has been given a wide discretion.

It can direct the entire court-fee to be paid either by the plaintiff, or the defendant, or both. On the facts and circumstances of each particular case, the court can exercise its discretion, and direct the court-fee to be payable accordingly. But to a case like the present, where the suit has been decreed in part, that is, the plaintiff’s claim has been partly allowed and partly disallowed, there is no provision in the Code which in terms applies. The Code has not laid down anywhere the procedure which is to be followed by the court in such a case. Obviously, therefore, to such a case neither rule 10, nor rule11, in terms, would apply.”

14. The decision relied on by the learned counsel therefore is itself an authority for the proposition that in a case where Rule 11 of Order XXXIII is attracted, the court cannot direct the defendant to pay the court-fee and it must be paid by the plaintiff or the co-plaintiff.

15. We, therefore, are of the opinion that there is no infirmity in the impugned judgment. The appeal is dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.

Deficit court fee: Section 149 provides that where the whole or any part of court fee prescribed for any document 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 court fee had been paid in the first instance. Section 4 of the court fees Act bars the court from receiving the plaint if it does not bear the proper court fee. Section 149 acts as an exception to the said bar, and enables the court to permit the plaintiff to pay the deficit court fee at a stage subsequent to the filing of the suit and provides that such payment, if permitted by the court, shall have the same effect as if it had been paid in the first instance.

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AIR 2009 SCW 5385 : JT 2009 (10) SC 79 : (2009) 10 SCALE 79 : (2009) 9 SCC 173

SUPREME COURT OF INDIA

P. K. Palanisamy

Versus

N. Arumugham and Another

(Before : S. B. Sinha And Deepak Verma, JJ.)

Civil Appeal No. 4643 of 2009 (arising out of SLP (C) No. 2308 of 2009, Decided on : 23-07-2009.

court fees Act, 1870—Section 4—Civil Procedure Code, 1908—Order 7, Rule 11 read with Section 149—Rejection of plaint on the ground of bar of limitation—Extension of time sought by plaintiff-appellant and granted by court for making of deficient court-fee on account of non-availability of stamps in sub-treasury—Whenever a plaint is presented with deficit court-fee, same cannot be rejected outrightly—If court-fees stamps are not available in sub-treasury for one reason or other, court having regard to maxim lex non cogit ad impossibilia would not reject such a prayer.

court fees Act, 1870—Section 4—Civil Procedure Code, 1908—Order 7, Rule 11 read with Section 149—Deficit court-fee—Payment of court-fees is a matter between State and suitor—In the event a plaint is rejected, defendant would be benefitted thereby—But, if an objection is to be raised in that behalf or an application is to be entertained by court at the behest of a defendant for rejection of plaint in terms of Order 7, Rule 11(c) of the Code, several aspects of matter are required to be considered—Once an application under Section 149 is allowed, Order 7, Rule 11(c) of Code will have no application—When court was satisfied with regard to bona fide of plaintiff and no objection was raised by defendant at the first instance about deficit court-fee, filing of an application for rejection of plaint in a case of this nature is mala fide—Impugned judgment set aside.

Civil Procedure Code, 1908—Sections 148 and 149—Enlargement of time—Suit filed with deficit court-fee—Mentioning of a wrong provision or non-mentioning of a provision does not invalidate an order if court and/or statutory authority had requisite jurisdiction therefor—Once court granted time for payment of deficit court-fee within period specified therefor, it would have been possible to extend the same by court in exercise of its power under Section 148—Only because a wrong provision was mentioned by appellant the same, by itself would not be a ground to hold that application was not maintainable or that order passed thereon would be a nullity. .

Civil Procedure Code, 1908—Section 149—court fees Act, 1870—Section 4—Suit filed with deficit court-fee—Permission by court to plaintiff to pay deficit court-fee at a stage subsequent to filing of suit shall have the same effect as if it had been paid in first instance—If deficit is made good, no objection could be raised on the ground of bar of limitation—Impugned judgment set aside—Appeal allowed. .

Counsel for the Parties:

E. Padmanabhan, Sr. Advocate, Ms. V. Mohana, for Appellant

Krishnan Venugopal, Sr. Advocate, R. Anand Padmanabhan, Pramod Dayal, for Respondents.

Judgment

S. B. Sinha, J—Leave granted.

2. This appeal is directed against a judgment and order dated 28th November, 2008 passed by a learned single Judge of the High court of Judicature at Madras whereby and whereunder a Civil Revision Petition filed under Article 227 of the Constitution of India against the Order dated 05th February, 2008 passed by the Additional District Munsif cum Fast Track court No. II, Salem in I.A. No. 22 of 2008 in O.S. No. 114 of 2004 has been allowed.

3. The brief facts necessary to be noted for the purpose of disposal of this case are as under :

The appellant allegedly advanced a loan for a sum of Rs.5,90,000/- to the respondent No. 1 on 29th January, 1995. As the respondent No. 1 failed to refund the amount despite repeated demands from the appellant, a Promissory Note was got executed by her on or about 2nd October, 1995.

The respondent No. 1 issued two cheques for a sum of ` 1,00,000/- each on 8th June, 1996 towards partial discharge of his obligation. However, the cheques when presented to the Banks were returned with the remarks “No fund”.

The appellant caused a legal notice to be served on the respondents on 29th August, 1998, which was received by them on 2nd September, 1998.

The appellant instituted a suit for recovery of money against the respondents on or about 4th October, 1998 before the Subordinate Judge, Salem. The plaint was presented on 5th October, 1998 as the 2nd, 3rd and 4th October, 1998 were holidays for the courts. The plaint was accompanied by a court fee of Re. 1/- only. He also filed an application purported to be in terms of Section 148 read with Section 151 of the Code of Civil Procedure (for short, “the Code”) seeking six weeks time for payment of the deficit court fees. The trial court granted six weeks’ time for payment of the deficit court fees by an order dated 7.10.1998.

On or about 8th November, 2008, another petition was filed by the appellant seeking eight weeks’ time for payment of deficit court fees on the premise that the stamp fee papers were not yet available in the Sub-Treasury. The trial court granted eight weeks’ time by an order dated 20th November, 1998. Another eight weeks’ time was granted by the trial court by an order dated 21st January, 1999. He, however, deposited the deficit court fee stamp on 17th February, 1999, which was accepted by the learned Subordinate Judge.

Indisputably, an application marked as I.A. No. 838 of 2000 under Section 151 of the Code to condone the delay of 272 days in representing the plaint filed by the appellant was allowed by the trial court by an order dated 2nd November, 2000. The plaint was represented with the application for attachment before judgment and an application for condonation of delay in re-filing.

The respondents entered appearance upon receipt of summons on 10th January, 2001. Indisputably, on the same day, an order of attachment before judgment was also passed with regard to the scheduled property.

On 17th February 2003, written statement was filed by the respondent. In the said written statement, no objection was raised with regard to the delay in payment of court fee. No issue in that behalf was framed.

Indisputably, thereafter, the respondents remained absent and an ex parte decree came to be passed in favour of the appellant on 29th September, 2004 by the trial court.

An application marked as LA. No. 1138 of 2005 filed on behalf of the respondents after a gap of 289 days to set aside the ex parte decree was allowed by the trial court with a condition to pay Rs.1000/- as costs.

Feeling aggrieved by and dissatisfied with the said order, the appellant preferred Revision Petition under Article 227 of the Constitution of India before the High court on or about 8th June, 2007. The learned single Judge of the High court after observing that the modus operandi of the respondents is to protract the suit proceedings, ruled a conditional order, viz., the suit would be revived only if the respondents deposit ` 3,00,000/- by order dated 8th June, 2007. That order became final. Even at that stage no objection as regards non-deposit of court fees within reasonable time was raised by the respondents.

Indisputably, the respondents deposited the money after getting an extension as well and the suit was revived. The appellant was examined and cross-examined so also his witness. However, It may be noticed that no suggestion to impeach the credibility as to non-availability of court fee or limitation was put to him.

Indisputably, an application marked as I.A. No. 22 of 2008 under Order VII, Rule 11(c) was moved by the respondents on or about 4th January, 2008 seeking for rejection of the plaint urging for the first time that the suit presented on 5th October, 1998 was barred by limitation as the extension of time granted by the trial court under Section 149 read with Section 151 of the Code and condonation of delay in refiling was passed without issuing notice to them. The appellant contested the said application by filing a counter affidavit thereto.

The trial court by reason of order dated 5th February, 2008 dismissed the said application filed by the respondents.

Aggrieved thereby, the respondents preferred a Revision Petition marked as Civil Revision Petition No. 815 of 2008 under Article 227 of the Constitution of India before the High court, which has been allowed by reason of the impugned judgment.

4. Appellant is, thus, before us.

5. Mr. E. Padmanabhan, learned Senior Counsel in Suppl ort of the appeal urged:

(i) The High court committed a serious error in passing the impugned judgment insofar as it failed to take into consideration that the legality of the orders dated 7.10.1998, 8.11.1998, 20.11.1998 and 21.1.1999 having not been questioned, the same in effect and substance could not have been set aside by reason of the impugned judgment. (ii) The appellant having acted bona fide inasmuch as court fee stamp papers being not available in the treasury, the learned trial court must be held to have exercised its jurisdiction judiciously in terms of Section 149 of the Code.

(iii) Although the application for grant of time was filed under Section 148 of the Code of Civil Procedure read with Section 151 thereof, the same ought to have been held to have been filed under Section 149 of the Code.

(iv) The respondents having not raised any issue with regard to delayed filing of the court fee stamp in their written statement or thereafter, the application filed by them purported to be under Order VII, Rule 11 (c) of the Code at the stage when the evidence had been adduced by the parties ought not to have been entertained.

6. Mr. Krishnan Venugopal, learned Senior Counsel appearing on behalf of the respondents, on the other hand, would urge :

(i) Keeping in view the long line of decisions of Madras High court whereupon strong reliance has been placed by the High court, the learned trial court was legally bound to serve a notice upon the respondents before passing of the orders dated 7.10.1998, 8.11.1998, 20.11.1998 and 21.1.1999.

(ii) The jurisdiction of the trial court contained in Section 149 of the Code being limited, it was obligatory on its part to assign sufficient and cogent reasons therefor.

(iii) Non-grant of opportunity of hearing to the respondents by the trial court and non-recording of reasons rendered the orders in question as nullities and in that view of the matter, an application under Order VII, Rule 1 l(c) for rejection of plaint must be held to have been maintainable.

(iv) The trial court had the jurisdiction to entertain the said application at any stage of the suit.

(v) Order VII, Rule 11(c) being not dependent upon an order passed by the trial court under Section 149 of the Code, the latter shall prevail over the earlier.

(vi) The instant case being not the one where additional court fee was required to be filed, the High court must be correctly and rightly held to have exercised its jurisdiction.

7. When a plaint is presented ordinarily it should be accompanied with the requisite court fees payable thereupon. Section 4 of the court-fees Act, 1870 mandates the same in the following terms :

“4. fees on documents filed, etc., in High courts in their extraordinary jurisdiction : – No document of any of the kinds specified in the First or Second Schedule to this Act annexed, as chargeable with fees, shall be filed, exhibited or recorded in, or shall be received or furnished by, any of the said High courts in any case coming before such court in the exercise of its extraordinary original civil jurisdiction; or in the exercise of its extraordinary original criminal jurisdiction;

in their appellate jurisdiction; – or in the exercise of its jurisdiction as regards appeals from the judgments (other than judgments passed in the exercise of the ordinary original civil jurisdiction of the court) of one or more Judges of the said court, or of a division court;

or in the exercise of its jurisdiction as regards appeals from the courts subject to its superintendence;

as courts of reference and revision. – or in the exercise of its jurisdiction as a court of reference or revision;

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.”

It, however, does not mean that whenever a plaint is presented with deficit court fee, the same has to be rejected outrightly. Section 149 of the Code provides for the court’s power to extend the period. It reads as under :

“149. Power to make up deficiency of court-fees. – 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.”

Section 149 raises a legal fiction in terms whereof as and when such deficit court fee is paid, the same would be deemed to have been paid in the first instance.

8. Appellant while presenting the plaint inter alia contended that sufficient court fee stamps were not available in the sub-treasury. The Presiding Officers of the local Civil courts in a given situation would be aware thereof. It may, therefore, consider the prayers made in that behalf by a suitor liberally. If court fees are not available in a sub-treasury for one reason or the other, the court having regard to the maxim “lex non cogit ad impossibilia” would not reject such a prayer.

Payment of court fees furthermore is a matter between the State and the suitor. Indisputably, in the event a plaint is rejected, the defendant would be benefited thereby, but if an objection is to be raised in that behalf or an application is to be entertained by the court at the behest of a defendant for rejection of the plaint in terms of Order VII, Rule 11(c) of the Code, several aspects of the matter are required to be considered.

Once an application under Section 149 is allowed, Order VII, Rule 11 (c) of Code will have no application.

It is for that additional reason, the orders extending the time to deposit deficit court fee should have been challenged.

Filing of an application for rejection of plaint in a case of this nature as also having regard to the events which have taken place subsequent to registration of the suit appears to us to be mala fide.

If the learned trial Judge did not entertain the said plea, the High court should not have interfered therewith.

9. The respondents in their written statement did not raise any issue with regard to the correctness or otherwise of the orders dated 7th October, 1998, 8th November 1998, 20th November, 1998 and 21st January, 1999. Rightly or wrongly, the plaint was accepted. The deficit court fee has been paid. The court was satisfied with regard to the bona fide of the plaintiff. Hearing of the suit proceeded; not only issues were framed but the witnesses on behalf of the parties were also examined by both the parties. It is difficult to believe that from 10th January, 2001 to 4th January, 2008, the respondents or their counsel did not have any occasion to inspect the records. Any counsel worth itself would not only do so but even without doing so would address himself a question as to why a suit filed on 4th October, 1998 was entertained in the year 2000. The suit was at one point of time decreed ex parte. The same was set aside on certain conditions. Evidently, the conditions laid down had been satisfied only upon obtaining an extension of time.

In the aforementioned backdrop of events, we may not have to go into the correctness or otherwise of the decision rendered by the Madras High court in K. Natarajan vs. P.K. Rajasekaran (2003) 2 M.L.J. 305, which has been followed in Ramiah and Anr. vs. R. Palaniappan and Ors. (2007) 5 MLJ 559, S vs. Arjunaraja vs. P. Vasantha (2005 (5) CTC 401) and vs. N. Subramaniyam vs. A. Nawab John and Ors. (2007) 1 MLJ 669.

10. We have, however, serious reservations as to whether the civil court could hear a defendant before registering a plaint. The Code does not envisage such a situation. When a suit is filed, the Civil court is bound by the procedures laid down in the Code. The defendant upon appearing, however, in certain situations, may question the orders passed by the Civil court at a later stage.

11. We would assume that the respondents were entitled to a notice before registration of plaint under Section 149 of the Code. Indisputably, the courts were required to assign reasons in Suppl ort of their orders. Had the validity and/or legality of those orders been challenged before an appropriate court, it would have been possible by the plaintiffs to contend that the defendants had waived their right by their subsequent conduct and they would be deemed to have accepted the same. Even on later occasion, the courts would assign reasons upon satisfying itself once over again. If an order has been passed without hearing the one side, he may be heard but by reason thereof, the plaint would not be rejected outrightly. Before doing so, the applications of the plaintiff under Section 149 of the Code have to be rejected.

In Buta Singh (Dead) By LRs. vs. Union of India (1995) 5 SCC 284, it was held :

“The aid of Section 149 could be taken only when the party was not able to pay court fee in circumstances beyond his control or under unavoidable circumstances and the court would be justified in an appropriate case to exercise the discretionary power under Section 149, after giving due notice to the affected party. But that was not the situation in this case. Under the relevant provisions of the court-fee Act applicable to appeals filed in the High court of the Punjab and Haryana, the claimants are required to value the appeals in the MOAs and need to pay the required court fee. Thereafter the appeal would be admitted and the notice would go to the respondents. The respondents would be put on notice of the amount, the appellant would be claiming so as to properly canvass the correctness of the claim or entitlement. The claim cannot be kept in uncertainty. If in an appeal under Section 54 of the Land Acquisition Act the amount is initially kept low and then depending upon the mood of the appellate court, payment of deficit court fee is sought to be made, it would create unhealthy practice and would become a game of chess and a matter of chance. That practice would not be conducive and proper for orderly conduct of litigation.”

12. It is now a well settled principle of law that an order passed by a court having jurisdiction shall remain valid unless it is set aside.

In State of Kerala vs. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) and Ors. (AIR 1996 SC 906, it is stated :

“7. In Halsbury’s Laws of England, 4th edition, (Reissue) Volume 1(1) in paragraph 26, page 31, it is stated, thus :

“If an act or decision, or an order or other instrument is invalid, it should, in principle be null and void for all purposes : and it has been said that there are no degrees of nullity. Even though such an act is wrong and lacking in jurisdiction, however, it subsists and remains fully effective unless and until it is set aside by a court of competent jurisdiction. Until its validity is challenged, its legality is preserved.”

In the Judicial Review of Administrative Action De Smith, Wolf and Jowell, 1995 edition, at pages 259-260 the law is stated, thus :

The erosion of the distinction between jurisdictional errors and non-jurisdictional errors has, as we have seen, correspondingly eroded the distinction between void and voidable decisions. The courts have become increasingly impatient with the distinction, to the extent that the situation today can be summarised as follows :

(1) All official decisions are presumed to be valid until set aside or otherwise held to be invalid by a court of competent jurisdiction.

Similarly, Wade and Forsyth in Administrative Law, Seventh edition -1994, have stated the law thus at pages 341-342 :

…every unlawful administrative act, however invalid, is merely voidable. But this is no more than the truism that in most situations the only way to resist unlawful action is by recourse to the law. In a well- known passage Lord Radcliffe said :

An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.

This must be equally true even where the brand of invalidity is plainly visible : for there also the order can effectively be resisted in law only by obtaining the decision of the court. The necessity of recourse to the court has been pointed put repeatedly in the House of Lords and Privy Council without distinction between patent and latent defects.”

{See also Baljinder Singh vs. Rattan Singh (2008) 11 SCALE 198)}

13. A contention has been raised that the applications filed by the appellant herein having regard to the decisions of the Madras High court could not have been entertained which were filed under Section 148 of the Code. Section 148 of the Code is a general provision and Section 149 thereof is special. The first application should have been filed in terms of Section 149 of the Code. Once the court granted time for payment of deficit court fee within the period specified therefor, it would have been possible to extend the same by the court in exercise of its power under Section 148 of the Code. Only because a wrong provision was mentioned by the appellant, the same, in our opinion, by itself would not be a ground to hold that the application was not maintainable or that the order passed thereon would be a nullity.

It is a well settled principle of law that mentioning of a wrong provision or non-mentioning of a provision does not invalidate an order if the court and/or statutory authority had the requisite jurisdiction therefor.

In Ram Sunder Ram vs. Union of India and Ors. (2007) 9 SCALE 197, it was held : “…..It appears that the competent authority has wrongly quoted Section 20 in the order of discharge whereas, in fact, the order of discharge has to be read having been passed under Section 22 of the Army Act. It is well settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law (see TV. Mani vs. Sangeetha Theatre and Ors. (2004) 12 SCC 278. Thus, quoting of wrong provision of Section 20 in the order of discharge of the appellant by the competent authority does not take away the jurisdiction of the authority under Section 22 of the Army Act. Therefore, the order of discharge of the appellant from the army service cannot be vitiated on this sole ground as contended by the learned Counsel for the appellant.”

In N. Mani vs. Sangeetha Theatres and Ors. (2004) 12 SCC 278, it is stated :

“9. It is well settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law.”

14. An application for rejection of the plaint was filed only in the year 2008. Evidently, that was not the stage for entertaining the application. Order VII, Rule 11(c) of the Code could not have been invoked at that point of time.

15. Mr. Venugopal, however, would rely upon a decision of this court in Saleem Bhai and Ors., vs. State of Maharashtra and Ors. (2003) 1 SCC 557.

We would assume that the said decision lays down the law correctly. But we may notice that therein the court was concerned with an application filed under Order VII, Rule 11(a) and (d) of the Code to hold that the therefor exercising the jurisdiction thereunder the averments in the plaint are germane and the pleas taken by the defendants in the written statement would be wholly irrelevant at that stage. Therein, a direction to file the written statement was given without deciding the application under Order VII, Rule 11 of the Code. It was held to be a procedural irregularity touching the exercise of jurisdiction by the trial court. It was, therefore, not a case even on facts where the jurisdiction was exercised after the evidence had been adduced. The observation made must be held to be confined to the fact of that case only and it does not lay down a general proposition of law that even after the evidence are led, an application for rejection of the plaint under Order VII, Rule 11(c) is maintainable as by that time the suit has already been registered by the court upon exercising its jurisdiction under Section 149 of the Code.

We may, however, notice that in Ram Prakash Gupta vs. Rajiv Kumar Gupta and Ors.(2007) 10 SCC 59, it was held : –

“22. It is also relevant to mention that after filing of the written statement, framing of the issues including on limitation, evidence was led, the plaintiff was cross-examined, thereafter before conclusion of the trial, the application under Order 7, Rule 11 was filed for rejection of the plaint. It is also pertinent to mention that there was not even a suggestion to the appellant-plaintiff to the effect that the suit filed by him is barred by limitation.

23. On going through the entire plaint averments, we are of the view that the trial court has committed an error in rejecting the same at the belated stage that too without adverting to all the materials which are available in the plaint. The High court has also committed the same error in affirming the order of the trial court.”

16. The question which survives for consideration is as to what is the scope of Section 149 of the Code?

In Mahasay Ganesh Prasad Ray and Anr. vs. Narendra Nath Sen and Ors. (AIR 1953 SC 431, this court held that the court fee is a matter between the State and the suitor.

Mr. Venugopal would urge that the said observations were made keeping in view the fact that the contention in that behalf had been raised at the appellate stage. It may be so, but it is well known that the appeal is continuation of the suit.

Yet again in Mahanth Ram Das vs. Ganga Das, (AIR 1961 SC 882, this court held : –

“5. The case is an unfortunate and unusual one. The application for extension of time was made before the time fixed by the High court for payment of deficit court fee had actually run out. That application appears not to have been considered at all, in view of the peremptory order which had been passed earlier by the Division Bench hearing the appeal, mainly because on the date of the hearing of the petition for extension of time, the period had expired. The short question is whether the High court, in the circumstances of the case, was powerless to enlarge the time, even though it had peremptorily fixed the period for payment. If the court had considered the application and rejected it on merits, other considerations might have arisen; but the High court in the order quoted, went by the letter of the original order under which time for payment had been fixed. Section 148 of the Code, in terms, allows extension of time, even if the original period fixed has expired, and Section 149 is equally liberal. A fortiori, those sections could be invoked by the applicant, when the time had not actually expired. That the application was filed in the vacation when a Division Bench was not sitting should have been considered in dealing with it even on 13-7-1954, when it was actually heard. The order, though passed after the expiry of the time fixed by the original judgment, would have operated from 8-7-1954. How undesirable it is to fix time peremptorily for a future happening which leaves the court powerless to deal with events that might arise in between, it is not necessary to decide in this appeal. These orders turn out, often enough to be inexpedient. Such procedural orders, though peremptory (conditional decrees apart) are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely estop a court from taking note of events and circumstances which happen within the time fixed. For example, it cannot be said that, if the appellant had started with the full money ordered to be paid and came well in time but was set upon and robbed by thieves the day previous, he could not ask for extension of time, or that the court was powerless to extend it. Such orders are not like the law of the Medes and the Persians. Cases are known in which courts have moulded their practice to meet a situation such as this and to have restored a suit or proceeding, even though a final order had been passed. We need cite only one such case, and that is Lachmi Narain Marwari vs. Balmakund Marwari. No doubt, as observed by Lord Phillimore, we do not wish to place an impediment in the way of courts in enforcing prompt obedience and avoidance of delay, any more than did the Privy Council. But we are of opinion that in this case the court could have exercised its powers first on 13-7-1954, when the petition filed within time was before it, and again under the exercise of its inherent powers, when the two petitions under Section 151 of the Code of Civil Procedure were filed. If the High court had felt disposed to take action on any of these occasions, Sections 148 and 149 would have clothed them with ample power to do justice to a litigant for whom it entertained considerable sympathy, but to whose aid it erroneously felt unable to come.”

In Mannan Lal vs. Mst. Chhotaka Bibi (Dead) by LRs. B. Sharda Shankar and Ors. (1970) 1 SCC 769, it was held :

“17. On a parity of reasoning it is difficult to see why if a memorandum of appeal insufficiently stamped is not to be rejected as barred under the Limitation Act, why a different conclusion should flow as regards compliance with the court fees Act in view of the express provisions of Section 149 of the Code. In our opinion Section 149 will cure the defect as from the date when the memorandum of appeal was filed alike for the purpose of Limitation Act and the court fees Act and the appeal must be treated as one pending on 9th November 1962 and as such unaffected by Section 3 of the U.P. Act of 1952.

In Wajid Ali vs. Isar Bano, Section 149 was interpreted as a proviso to Section 4 of the court fees Act in order to avoid contradiction between the two sections. The court was, however, careful to lay down that discretion had to be exercised in allowing deficiency of court fees to be made good but once it was done a document was to be deemed to have been presented and received on the date on which it was originally filed. This was a case of a plaint.”

The said dicta was reiterated by a three judge Bench of this court in Ganapathy Hegde vs. Krishnakudva, (2005) 13 SCC 539 in the following words :-

“5. In our opinion, the High court was not right in forming the opinion which it did. The proviso to Order 7, Rule 11 CPC is attracted when the time for payment of court fee has been fixed by the court and the court fee is not Suppl lied within the time appointed by the court. In the case at hand, though the plaint as originally filed was not affixed with the requisite court fee stamps, but before the suit was registered, the deficit court fee was Suppl lied. The present one is not a case where the court had fixed the time for payment of requisite stamp paper which was not done within the time fixed and thereafter the plaintiff was called upon to seek an extension of time. Had that been the case, then, under the proviso, the plaintiff would have been called upon to assign and show the availability of any cause of an exceptional nature for delay in Suppl lying the requisite stamp paper within the time fixed by the court. The trial court was also empowered under Section 149 CPC to extend the time. In the present case, the order passed by the trial court accepting the deficit court fee paid on 23-2-2000, thereafter registering the suit on 10-4-2000 and consequently the order dated 3-11-2001 rejecting the defendant-respondents’ application under Order 7, Rule 11 CPC were perfectly in accordance with law and within the discretion conferred on the trial court with which the High court ought not to have interfered in exercise of the jurisdiction vested in the High court under Section 115 CPC. The order of the High court, if allowed to stand, is likely to occasion failure of justice.”

Yet again in K.C. Skaria vs. Govt. of State of Kerala and Anr. (2006) 2 SCC 285, it was held : “20. The appellant next attempted to press into service Section 149 CPC to contend that he ought to have been given an opportunity to pay the deficit court fee on the total amount due for the work done. Section 149 provides that where the whole or any part of court fee prescribed for any document 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 court fee had been paid in the first instance. Section 4 of the court fees Act bars the court from receiving the plaint if it does not bear the proper court fee. Section 149 acts as an exception to the said bar, and enables the court to permit the plaintiff to pay the deficit court fee at a stage subsequent to the filing of the suit and provides that such payment, if permitted by the court, shall have the same effect as if it had been paid in the first instance. Interpreting Section 149, this court in Mannan Lal vs. Chhotaka Bibi held that Section 149 CPC mitigates the rigour of Section 4 of the CF Act, and the courts should harmonise the provisions of the CF Act and CPC by reading Section 149 as a proviso to Section 4 of the CF Act, and allowing the deficit to be made good within the period to be fixed by it. This court further held that if the deficit is made good, no objection could be raised on the ground of bar of limitation, as Section 149 specifically provides that the document is to have validity with retrospective effect.” Mr. Venugopal would, however, contend that those observations in that case were made holding that the conduct on the part of the complainant was not bona fide.

17. For the reasons aforementioned, the impugned judgment cannot be sustained. It is set aside accordingly. The appeal is allowed. However, in the facts and circumstances of the case, there shall be no order as to costs.

Cancellation of the deed: If ‘A’, the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court fee on the consideration stated in the sale deed. If ‘B’, who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of ` 19.50 under Article 17(iii) of Second Schedule of the Act. But if ‘B’, a non- executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad-valorem court fee as provided under Section 7(iv)(c) of the Act.

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AIR 2010 SC 2807 : JT 2010 (3) SC 472 : (2010) 3 SCALE 389 : (2010) 4 SCR 1121

SUPREME COURT OF INDIA

Suhrid Singh @ Sardool Singh

Versus

Randhir Singh and OTHERS

(Before : R. V. Raveendran and R. M. Lodha, JJ.)

Civil Appeal Nos. 2811-2813 of 2010 (Arising out of SLP (C) Nos. 6745-47/2009); Decided On: 29-03-2010

court-fees Act, 1870—Sections 7(iv)(c), 7(iv) and 7(iii).

Counsel for the Parties:

Party-in-Person

Labh Singh Bhangu and Madhu Moolchandani, Advs.

JUDGMENT

R.V. Raveendran, J—Leave granted.

The appellant filed a suit (Case No. 381/2007) on the file of the Civil Judge, Senior Division, Chandigarh for several reliefs. The plaint contains several elaborate prayers, summarizes below:

(i) for a declaration that two houses and certain agricultural lands purchased by his father S. Rajinder Singh were co-parcenary properties as they were purchased from the sale proceeds of ancestral properties, and that he was entitled to joint possession thereof;

(ii) for a declaration that the will dated 14.7.1985 with the codicil dated 17.8.1988 made in favour of the third defendant, and gift deed dated 10.9.2003 made in favour of fourth defendant were void and non-est “qua the co-parcenary”;

(iii) for a declaration that the sale deeds dated 20.4.2001, 24.4.2001 and 6.7.2001 executed by his father S. Rajinder Singh in favour of the first defendant and sale deed dated 27.9.2003 executed by the alleged power of attorney holder of S. Rajender Singh in favour of second defendant, in regard to certain agricultural lands (described in the prayer), are null and void qua the rights of the “co-parcenary”, as they were not for legal necessity or for benefit of the family; and

(iv) for consequential injunctions restraining defendants 1 to 4 from alienating the suit properties.

2. The appellant claims to have paid a court fee of ` 19.50 for the relief of declaration, ` 117/- for the relief of joint possession, and ` 42/- for the relief of permanent injunction, in all ` 179/-. The learned Civil Judge heard the appellant-plaintiff on the question of court fee and made an order dated 27.2.2007 holding that the prayers relating to the sale deeds amounted to seeking cancellation of the sale deeds and therefore ad valorem court fee was payable on the sale consideration in respect of the sale deeds.

3. Feeling aggrieved the appellant filed a revision contending that he had paid the court fee under Section 7(iv)(c) of the court-fees Act, 1870 and that the suit was not for cancellation of any sale deed and therefore the court fee paid by him was adequate and proper. The High court by the impugned order dated 19.3.2007 dismissed the revision petition holding that if a decree is granted as sought by the plaintiff, it would amount to cancellation of the sale deeds and therefore, the order of the trial court did not call for interference. The application filed by the appellant for review was dismissed on 11.2.2008. The application for recalling the order dated 19.3.2007 was dismissed on 24.4.2008 and further application for recalling the order dated 24.4.2008 was dismissed on 16.5.2008. Feeling aggrieved, the appellant has filed these appeals by special leave.

4. The limited question that arises for consideration is what is the court fee payable in regard to the prayer for a declaration that the sale deeds were void and not ‘binding on the co-parcenary’, and for the consequential relief of joint possession and injunction.

5. court fee in the State of Punjab is governed by the court fees Act, 1870 as amended in Punjab (‘Act’ for short). Section 6 requires that no document of the kind specified as chargeable in the First and Second Schedules to the Act shall be filed in any court, unless the fee indicated therein is paid. Entry 17(iii) of Second Schedule requires payment of a court fee of ` 19/50 on plaints in suits to obtain a declaratory decree where no consequential relief is prayed for. But where the suit is for a declaration and consequential relief of possession and injunction, court fee thereon is governed by Section 7(iv)(c) of the Act which provides:

7. Computation of fees payable in certain suits : The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:

(iv) in suits – x x x x (c) for a declaratory decree and consequential relief.- to obtain a declaratory decree or order, where consequential relief is prayed, x x x x x according to the amount at which the relief sought is valued in the plaint or memorandum of appeal.

In all such suits the plaintiff shall state the amount at which he values the relief sought:

Provided that minimum court-fee in each shall be thirteen rupees.

Provided further that in suits coming under Sub-clause (c), in cases where the relief sought is with reference to any property such valuation shall not be less than the value of the property calculated in the manner provided for by Clause (v) of this section.” The second proviso to Section 7(iv) of the Act will apply in this case and the valuation shall not be less than the value of the property calculated in the manner provided for by Clause (v) of the said section. Clause (v) provides that where the relief is in regard to agricultural lands, court fee should be reckoned with reference to the revenue payable under Clauses (a) to (d) thereof; and where the relief is in regard to the houses, court fee shall be on the market value of the houses, under Clause (e) thereof.

6. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non-est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to ‘A’ and ‘B’ — two brothers. ‘A’ executes a sale deed in favour of ‘C’. Subsequently ‘A’ wants to avoid the sale. ‘A’ has to sue for cancellation of the deed. On the other hand, if ‘B’, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by ‘A’ is invalid/void and non- est/ illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If ‘A’, the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court fee on the consideration stated in the sale deed. If ‘B’, who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of ` 19.50 under Article 17(iii) of Second Schedule of the Act. But if ‘B’, a non- executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad-valorem court fee as provided under Section 7(iv)(c) of the Act. Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by Clause (v) of Section 7.

7. In this case, there is no prayer for cancellation of the sale deeds. The prayer is for a declaration that the deeds do not bind the “co-parcenery” and for joint possession. The plaintiff in the suit was not the executant of the sale deeds. Therefore, the court fee was computable under Section 7(iv)(c) of the Act. The trial court and the High court were therefore not justified in holding that the effect of the prayer was to seek cancellation of the sale deeds or that therefore court fee had to be paid on the sale consideration mentioned in the sale deeds.

8. We accordingly allow these appeals, set aside the orders of the trial court and the High court directing payment of court fee on the sale consideration under the sale deeds dated 20.4.2001, 24.4.2001, 6.7.2001 and 27.9.2003 and direct the trial court to calculate the court fee in accordance with Section 7(iv)(c) read with Section 7(v) of the Act, as indicated above, with reference to the plaint averments.

Cancellation of document: If the expression ‘value of the subject matter of the suit’ was not followed by the deeming clause, it could possibly be argued that the word ‘value’ means the market value, but by employing the deeming clause, the legislature has made it clear that if the document is sought to be cancelled, the amount of court fee shall be computed on the value of the property for which the document was executed and not the market value of the property. The words “for which” appearing between the words “property” and “other documents” clearly indicate that the court fee is required to be paid on the value of the property mentioned in the document, which is subject matter of challenge.

AIR 2010 SC 2777 : JT 2010 (5) SC 118 : (2010) 5 SCALE 164 : (2010) 5 SCC 622

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SUPREME court OF INDIA

(Before : G. S. Singhvi and Asok Kumar Ganguly, JJ.)

Civil Appeal No. 4347 of 2010 (Arising out of S.L.P. (C) No. 3597 of 2009); Decided On: 07-05-2010

Kerala court-fees and Suits Valuation Act, 1959—Sections 40(1), 7(1)(2)(3) (3A)(4), 25(a)(b), 27(a), 29, 30, 37(1)(3), 38, 40, 45 and 48—Madras Survey and Boundaries Act, 1923—Section 14—Mysore court fees Act—Sections 4(iv)(A) .

Counsel for the Parties:

Bechu Kurian Thomas, R. Basant and Liz Mathew, Advs.

T.L.V. Iyer, Sr. Adv. and Subramonium Prasad, Advs.

JUDGMENT

G.S. Singhvi, J—Leave granted.

2. This appeal filed for setting aside order dated 21.7.2008 passed by the learned Single Judge of Kerala High court in Writ Petition No. 21820 of 2008 whereby he declined to interfere with the direction given by Sub Judge, Palakkad (hereinafter described as ‘the trial court’) to the appellant to pay court fee on the market value of the plaint schedule property raises an important question of law relating to interpretation of Section 40 of the Kerala court-fees and Suits Valuation Act, 1959 (for short, ‘the Act’).

3. The appellant owned 9.98 acres rubber plantation. She executed power of attorney No. 376/2006 in favour of her own daughter (respondent No. 1 herein). After sometime, respondent No. 1 transferred the property to her husband (respondent No. 2 herein) by registered sale deed No. 1784/2007. The appellant filed O.S. No. 231/2007 for cancellation of the power of attorney by alleging that respondent No. 1 had misused the same and sold the property to her husband. By an order dated 21.5.2008, the trial court directed the appellant to pay court fees on the market value of the plaint schedule property. The appellant challenged that order in Writ Petition No. 17032/2008 (C) which was disposed of by the learned Single Judge of Kerala High court vide his order dated 26.6.2008, the relevant portion of which reads as under:

The learned Counsel appearing for the petitioner further submitted that in view of the contentions raised in the plaint, petitioner has to file an application for amendment of the plaint modifying the relief sought for. In the nature of the contentions raised in the plaint, an amendment of the relief is definitely necessary, as found by the learned Sub Judge. In such circumstances, Writ Petition is disposed granting liberty to the petitioner to amend the plaint and to pay the necessary court fee payable on such pleading. It is made clear that the fact that a time limit is fixed by this court will not prevent the court from granting amendment, as it is necessary for an appropriate adjudication of the dispute involved in the suit. It is made clear that the actual court fee payable by the plaintiff is to be decided by the trial court afresh, taking into consideration the relief sought for in the plaint, in the light of the amendment of the pleading.

4. In furtherance of the direction given by the High court, the appellant applied for and she was granted permission to amend the plaint and to incorporate prayer for cancellation of the sale deed executed by respondent No. 1 in favour of respondent No. 2. In the amended plaint, value of the property was shown as ` 7,00,000/- and accordingly, the court fees was paid. However by an order dated 3.7.2008, the trial court directed the appellant to pay court fee on the market value of the plaint schedule property which was assessed at ` 12 lakhs per acre.

5. Writ Petition No. 21820/2008 filed by the appellant against the above mentioned order was dismissed by the learned Single Judge, who referred to the judgments of the Division Bench in Krishnan Damodaran v. Padmanabhan Parvathy (1972) KLT 774, P.K. Vasudeva Rao v. Hari Menon, AIR 1982 Kerala 35 and Pachayammal v. Dwaraswamy Pillai, (2006) 3 Kerala Law Times 527 and held that in terms of Section 40 of the Act, the writ petitioner is required to pay court fees on market value of the property and not on the value specified in the sale deed.

6. Shri Bechu Kurian Thomas, learned Counsel for the appellant argued that the interpretation placed by the trial court and the High court on Section 40 of the Act is ex facie erroneous and impugned order is liable to be set aside because that section does not provide for payment of court fee on the market value of the property for which the document, which is subject matter of the suit, was executed. Learned Counsel emphasized that in terms of Section 40(1), court fees is required to be paid on the value of the property for which the document was executed and submitted that the appellant had correctly paid the court fees as per the value of the property specified in the sale deed i.e., ` 7 lakhs. In support of his arguments, the learned Counsel relied upon the judgments of the learned Single Judges of Madras High court in Andalammal v. B. Kannaiah, (1971) 2 Madras Law Journal 205 and of Andhra Pradesh High court in Allam Venkateswara Reddy v. Golla Venkatanarayana and Ors., AIR 1975 Andhra Pradesh 122.

7. Shri T.L.V. Iyer, learned senior counsel appearing for the respondent argued that the expression ‘value of the property’ for which the document was executed means market value of the property and the same cannot be read as value specified in the document. Learned senior counsel submitted that different High courts have, following the judgment of the Full Bench of Madras High court in Kutumba Sastri v. Sundaramma, AIR 1939 Madras 462, consistently held that the market value of the property has to be taken into consideration for the purpose of payment of the court fees. Learned senior counsel relied upon the judgments of different High courts – Appikunju Meerasayu v. Meeran Pillai (1964) KLT 895, Uma Antherjanam v. Govindaru Namboodiripad and Ors. (1966) KLT 1046, T. Tharamma v. T. Ramchandra Reddy and Ors., AIR 1968 Andhra Pradesh 333, Sengoda Nadar v. Doraiswami Gounder and Ors., AIR 1971 Mad 380, Allam Venkateswara Reddy v. Golla Venkatanarayana and Ors. (supra), S. Krishna Nair and Anr. v. N. Rugmoni Amma, AIR 1976 Madras 208 and Smt. Narbada v. Smt. Aashi, AIR 1987 Raj 162 and argued that the learned Single Judge did not commit any error by refusing to interfere with the order of the trial court.

8. We have considered the respective submissions. Sections 7(1) (2) (3) (3A) (4), 25(a) (b), 27(a), 29, 30, 37(1) (3), 38, 40, 45 and 48 of the Act which have bearing on the issue raised by the appellant, read as under:

7. Determination of market value

(1) Save as otherwise provided, where the fee payable under this Act depends on the market value of any property, such value shall be determined as on the date of presentation of the plaint.

(2) The market value of agricultural land in suits falling under Section 25(a), 25(b), 27(a), 29, 30, 37(1), 37(3), 38, 45 or 48 shall be deemed to be ten times the annual gross profits of such land where it is capable of yielding annual profits minus the assessment if any made to the Government.

(3) The market value of a building shall in cases where its rental value has been entered in the registers of any local authority, be ten times such rental value and in other cases the actual market value of the building as on the date of the plaint.

(3A) The market value of any property other than agricultural land and building falling under Sub-sections (2) and (3) shall be the value it will fetch on the date of institution of the suit. (4) Where the subject-matter of the suit is only a restricted or fractional interest in a property, the market value of the property shall be deemed to be the value of the restricted or fractional interest and the value of the restricted or fractional interest shall bear the same proportion to the market value of the absolute interest in such property as the net income derived by the owner of the restricted or fractional interest bears to the total net income from the property.

25. Suits for declaration.- In a suit for a declaratory decree or order, whether with or without consequential relief, not falling under Section 26-

(a) where the prayer is for a declaration and for possession of the property to which the declaration relates, fee shall be computed on the market value of the property or on rupees one thousand whichever is higher;

(b) where the prayer is for a declaration and for consequential injunction and the relief sought is with reference to any immovable property, fee shall be computed on one-half of the market value of the property or on rupees one thousand, whichever is higher;

27. Suits for injunction.- In a suit for injunction- (a) Where the reliefs sought is with reference to any immovable property, and

(i) where the plaintiff alleges that his title to the property is denied, or

(ii) where an issue is framed regarding the plaintiff’s title to the property,

fee shall be computed on one-half of the market value of the property or on rupees five hundred, whichever is higher;

29. Suits for possession under the Specific Relief Act, 1877. In a suit for possession of immovable property under Section 9 of the Specific Relief Act, 1877 (Central Act 1 of 1877), fee shall be computed on one-third of the market value of the property or on rupees one hundred and fifty, whichever is higher.

30. Suits for possession not otherwise provided for.- In a suit for possession of immovable property not otherwise provided for, fee shall be computed, on the market value of the property or on rupees one thousand, whichever is higher.

37. Partition suits

(1) In a suit for partition and separate possession of a share of joint family property or of property owned, jointly or in common, by a plaintiff who has been excluded from possession of such property, fee shall be computed on the market value of the plaintiff’s share.

(2) xxx xxx xxx

(3) Where, in a suit falling under Sub-section (1) or Sub-section (2), a defendant claims partition and separate possession of his share of the property, fee shall be payable on his written statement computed on half the market value of his share or at half the rates specified in Sub-section (2), according as such defendant has been excluded from possession or is in joint possession.

38. Suits for joint possession.- In a suit for joint possession of joint family property or of property owned, jointly or in common, by a plaintiff who has been excluded from possession, fee shall be computed on the market value of the plaintiff’s share.

40. Suits for cancellation of decrees, etc.-

(1) In a suit for cancellation of a decree for money or other property having a money value, or other document which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in money, movable or immovable property, fee shall be computed on the value of the subject-matter of the suit, and such value shall be deemed to be–

if the whole decree or other document is sought to be cancelled, the amount or value of the property for which the decree was passed or other document was executed;

if a part of the decree or other document is sought to be cancelled, such part of the amount or value of the property.

(2) If the decree or other document is such that the liability under it cannot be split up and the relief claimed relates only to a particular item of property belonging to the plaintiff or to the plaintiff’s share in any such property, fee shall be computed on the value of such property, or share or on the amount of the decree, whichever is less.

Explanation.- A suit to set aside an award shall be deemed to be a suit to set aside a decree within the meaning of this section.

45. Suits under the Survey and Boundaries Act.- In a suit under Section 14 of the Madras Survey and Boundaries Act, 1923, Section 13 of the Travancore Survey and Boundaries Act of 1094, or Section 14 of the Cochin Survey Act, II of 1074, fee shall be computed on one-half of the market value of the property affected by the determination of the boundary or on rupees one thousand, whichever is higher.

48. Interpleader suits.

(1) In an interpleader suit, fee shall be payable on the plaint at the rates specified in Section 50.

(2) Where issues are framed as between the claimants, fee shall be payable computed on the amount of the debt or the money or the market value of other property, movable or immovable, which forms the subject-matter of the suit. In levying such fee, credit shall be given for the fee paid on the plaint; and the balance of the fee shall be paid in equal shares by the claimants who claim the debt or the sum of money or the property adversely to each other.

(3) Value for the purpose of determining the jurisdiction of courts shall be the amount of the debt, or the sum of money or the market value of other property to which the suit relates.

9. Section 7(iv), (iv-A) (as inserted by Madras Act of 1922) and (v) of the court-fees Act, 1870 (for short, ‘the court-fees Act’), which have been considered in various judgments of Madras High court relied upon by learned Counsel for the respondents reads as under:

7. Computation of fees payable in certain suits.- The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:

xxx xxx xxx

(iv) In suits-

for movable property of no market-value.-(a) for moveable property where the subject-matter has no market-value, as, for instance, in the case of documents relating to title,

to enforce a right to share in joint family property.- (b) to enforce the right to share in any property on the ground that it is joint family property,

for a declaratory decree and consequential relief.- (c) to obtain a declaratory decree or order, where consequential relief is prayed,

for an injunction.-(d) to obtain an injunction,

for easements.-(e) for a right to some benefit (not herein otherwise provided for) to arise out of land, and

for accounts.-(f) for accounts- according to the amount at which the relief sought is valued in the plaint or memorandum of appeal; In all such suits the plaintiff shall state the amount at which he values the relief sought

(iv-A) In a suit for cancellation of a decree for money or other property having a money value or other document securing money or other property having such value, the valuation should be according to the value of the subject-matter of the suit and such value shall be if the whole decree is sought to be cancelled, the amount or value of the property for which the decree was passed, and if a portion of the decree is sought to be cancelled, such part of the amount or value of the property.

(added by Madras Act of 1922)

for possession of land, houses and gardens.- (v) In suits for the possession of land, houses, and gardens – according to the value of the subject-matter; and such value shall be deemed to be-

where the subject-matter is land, and-

(a) where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government, or forms part of such an estate and is recorded in the Collector’s register as separately assessed with such revenue; and such revenue is permanently settled – ten times the revenue so payable;

(b) where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government, or forms part of such estate and is recorded as aforesaid; and such revenue is settled, but not permanently – five times the revenue so payable;

(c) where the land pays no such revenue, or has been partially exempted from such payment, or is charged with any fixed payment in lieu of such revenue, and net profits have arisen from the land during the year next before the date of presenting the plaint – fifteen times such net profits; but where no such net profits have arisen therefrom – the amount at which the court shall estimate the land with reference to the value of similar land in the neighbourhood;

(d) where the land forms part of an estate paying revenue to Government, but is not a definite share of such estate and is not separately assessed as above-mentioned – the market-value of the land:

10. Before proceeding further, we may notice two well recognized rules of interpretation of statutes. The first and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself. If the words used are capable of one construction, only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act. The words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy or object of the Act can legitimately arise – Kanai Lal Sur v. Paramnidhi Sadhukhan, (1958) SCR 360. The other important rule of interpretation is that the court cannot rewrite, recast or reframe the legislation because it has no power to do so. The court cannot add words to a statute or read words which are not therein it. Even if there is a defect or an omission in the statute, the court cannot correct the defect or supply the omission. – Union of India v. Deoki Nandan Aggarwal, (1992) 1 Suppl. SCC 323, Shyam Kishori Devi v. Patna Municipal Corporation (1966) 3 SCR 366.

11. Section 7 of the Act lays down different modes for determination of the market value of the property for the purpose of payment of court fee. Sub-section (1) of Section 7 begins with the expression “Save as otherwise provided” and lays down that where the fee payable under the Act depends on the market value of any property, such value shall be determined as on the date of presentation of the plaint. From the plain language of Section 7(1), it is evident that it merely specifies the methodology for determination of the market value of the property where the court fee payable under some other provisions of the Act depends on the market value of the property which is subject matter of the suit. Sections 25, 27, 29, 30, 37, 38, 45 and 48 deal with different kinds of suit i.e., suits for declaration, suits for injunction, suits for possession under the Specific Relief Act, 1877, suits for possession not otherwise provided for, partition suits, suits for joint possession, suits under the Survey and Boundaries Act and interpleader suits. These sections provide for payment of court fee computed on the market value of the property. Sub-section (2) of Section 7 lays down that the market value of the agricultural land in suits falling under Sections 25(a), 25(b), 27(a), 29, 30, 37(1), 37(3), 38, 45 and 48 shall be deemed to be ten times the annual gross profits of such land where it is capable of yielding annual profits minus the assessment, if any, made by the Government. In terms of Sub-section (3), the market value of a building in cases where its rental value has been entered in the registers of any local authority, shall be ten times such rental value and in other cases, the actual market value of the building as on the date of the plaint. Clause (a) of Sub-section (3) lays down that market value of any property other than agricultural land and building shall be the value it will fetch on the date of institution of the suit. Sub-section (4) lays down that where subject matter of the suit is only a restricted or fractional interest in a property, the market value of the property shall be deemed to be the value of the restricted or fractional interest. Section 40 deals with suits for cancellation of decrees etc. which are not covered by other sections. If this section is interpreted in the light of the expression ‘save as otherwise provided’ used in Section 7(1), it becomes clear that the rule enshrined therein is a clear departure from the one contained in Section 7 read with Sections 25, 27, 29, 30, 37, 38, 45 and 48 which provide for payment of court fee on the market value of the property. In that sense, Section 40 contains a special rule. Section 40(1) lays down that in a suit for cancellation of a decree for money or other property having a money value, or other document which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in money, movable or immovable property, fee shall be computed on the value of the subject matter of the suit and further lays down that such value shall be deemed to be if the whole decree or other document sought to be cancelled, the amount or value of the property for which the decree was passed or other document was executed. If a part of the decree or other document is sought to be cancelled, such part of the amount or value of the property constitute the basis for fixation of court fee. Sub-section (2) lays down that if the decree or other document is such that the liability under it cannot be split up and the relief claimed relates only to a particular item of the property belonging to the plaintiff or the plaintiff’s share in such property, fee shall be computed on the value of such property, or share or on the amount of the decree, whichever is less. The deeming clause contained in the substantive part of Section 40(1) makes it clear that in a suit filed for cancellation of a document which creates any right, title or interest in immovable property, the court fees is required to be computed on the value of the property for which the document was executed. To put it differently, the value of the property for which the document was executed and not its market value is relevant for the purpose of court fee. If the expression ‘value of the subject matter of the suit’ was not followed by the deeming clause, it could possibly be argued that the word ‘value’ means the market value, but by employing the deeming clause, the legislature has made it clear that if the document is sought to be cancelled, the amount of court fee shall be computed on the value of the property for which the document was executed and not the market value of the property. The words “for which” appearing between the words “property” and “other documents” clearly indicate that the court fee is required to be paid on the value of the property mentioned in the document, which is subject matter of challenge.

12. If the legislature intended that fee should be payable on the market value of the subject matter of the suit filed for cancellation of a document which purports or operates to create, declare, assign, limit or extinguish any present or future right, title and interest, then it would have, instead of incorporating the requirement of payment of fees on value of subject matter, specifically provided for payment of court fee on the market value of the subject matter of the suit as has been done in respect of other types of suits mentioned in Sections 25, 27, 29, 30, 37, 38, 45 and 48. The legislature may have also, instead of using the expression “value of the property for which the document was executed”, used the expression “value of the property in respect of which the document was executed”. However, the fact of the matter is that in Section 40(1) the legislature has designedly not used the expression ‘market value of the property’.

13. If the interpretation placed by the trial court and the High court on the expression “value of the property for which the document was executed” is accepted as correct then the word ‘value’ used in Section 40(1) of the Act will have to be read as ‘market value’ and we do not see any compelling reason to add the word ‘market’ before the word ‘value’ in Section 40(1) of the Act.

14. We may now advert to the judgments relied upon by the learned Counsel for the parties and some other judgments of different High courts in which Section 40(1) of the Act and similar provisions of other State legislations have been interpreted.

15. In Venkata Narasimha Raju v. Chandrayya, AIR 1927 Mad 825, the Division Bench of Madras High court interpreted Section 7(v)(a) of the court-fees Act as amended by Madras Act of 1922 and observed:

One point raised is whether the market value of the property should not be taken for the purpose of this valuation, or whether the statutory value should be adopted. We think the latter is the proper course as there is nothing in the Act to show that the market value is the value contemplated in Section 7(iv)(a). When there is in the Act itself a special rule as to valuing property in suits for court-fees, we think it is proper to take that method of valuation in preference to any other method to get the value where there is no indication that any other method should be adopted.

(emphasis supplied)

16. In Balireddi v. Khatipulal Sab, AIR 1935 Mad 863, the learned Single Judge of the High court considered the question whether in a suit for setting aside mortgage deeds and sale deeds, the plaintiff is required to pay court-fees on the market value of the property and answered the same in affirmative. The learned Judge referred to two earlier judgments in Venkata Narasimha Raju v. Chandrayya (supra) and Venkatasiva Rao v. Satyanarayanamurthi, AIR 1932 Mad 605 but disagreed with the ratio of those judgments and held:

The amount of court-fee payable depends upon “the value of the subject-matter of the suit,” that is what the section says. Where a document securing money is sought to be cancelled, the section goes on to say, that the value of the subject-matter shall be deemed to be “the amount for which the document is executed.” In the case of a mortgage instrument therefore the court-fee has to be computed on the amount for which the instrument is executed, in other words, the principal amount secured by it. This is the plain effect of the words of the section, and I fail to see how the method of computation fixed in Section 7(v) can possibly be applied. Now as regards the sale-deed, the question arises, is the value referred to in the section, the actual value of the property, that is to say, its market value or the artificial value prescribed by Section 7(v)? The last mentioned section deals with suits for possession and the legislature has expressly enacted that in such suits the value shall be determined in a particular manner. Clause (iv-A) refers simply to “the value of the property,” which means “value” as generally understood, whereas Clause (v) prescribes an artificial method of valuation. There is no reason to construe Clause (iv-A) in the light of Clause (v) which deals with a specific matter; indeed, when the legislature intends to prescribe an artificial method, it says so in express terms, as Clause (iv-c) also shows. I am therefore of the opinion that in the case of the sale-deeds, the amount of court- fee payable must be computed on the market value of the properties with which they deal.

17. In Kutumba Sastri v. Sundaramma (supra), the Full Bench of Madras High court interpreted paragraph (iv-A) of Section 7 of the court- fees Act. The Full Bench referred to the earlier judgments in Venkata Narasimha Raju v. Chandrayya (supra), Venkatasiva Rao v. Satyanarayanamurthi (supra), Balireddi v. Khatipulal Sab (supra) and approved the view expressed by the learned Single Judge in Balireddi v. Khatipulal Sab (supra) by making the following observations:

We consider that the view taken by Venkatasubba Rao J. in 59 Mad 240 is preferable to that taken in 53 MLJ 267. Para (iv-A) deals with suits where it is necessary for the plaintiff to seek the cancellation of a decree or of a deed. Para (v) relates merely to suits for possession. In a suit for possession it is not always necessary to set aside a decree or a document. Where a suit is merely for possession the Act says how the value of the subject- matter shall be arrived at. When adding para (iv-A) to Section 7 the Legislature did not say that in a suit falling within the new paragraph the valuation of the subject-matter should be arrived at in accordance with the method indicated in para (v). It said that a suit within para (iv-A) should be valued according to the value of the property, and the value of the property, unless there is an indication to the contrary, must mean to its market value. By the Amending Act of 1922 para (iv-C) was also amended. Before the amendment, this paragraph provided that in a suit to obtain a declaratory decree or order where a consequential relief was prayed, the value should be according to the value of the relief sought by the plaintiff. The Amending Act inserted the Proviso to the effect that in a suit coming under this paragraph in a case where the relief sought is with reference to immovable property the valuation shall not be less than half the value of the immovable property calculated in the manner provided for by paragraph (v). There the Legislature expressly provided that the method of calculation was to be in accordance with para (v) but in adding para (iv-A) no such direction was given. The court-fee is to be calculated on the amount or the value of the property and to give the wording of para (iv-A) its plain meaning the valuation must be the valuation based on the market value of the property at the date of the plaint.

(emphasis supplied)

18. In Navaraja v. Kaliappa Gounder (1967) 80 MLW 19 (SN), the learned Single Judge noted that in the earlier suit, the properties were valued at ` 4000/-, referred to Section 40(1) of the Madras court-fees and Suits Valuation Act, 1955, which is pari materia to the Section 40 of the Act and observed:

…that as the decree itself specified the value of the property it will fall within the language of Section 40(1), namely, the amount or value of the property for which the decree was passed and ordered that the court-fee has to be paid calculated on the sum of ` 4000, which is the value given in the decree, and not the market value of the properties on the date of the filing of the plaint.

(emphasis supplied)

19. In Arunachalathammal v. Sudalaimuthu Pillai (1968) 83 MLW 789, another learned Single Judge examined the correctness of order passed by the Subordinate Judge, Tirunelveli, who had allowed the plaintiff to pay the court-fee for the cancellation of settlement deed on the value of the document i.e. ` 3500/-. While dismissing the revision filed by the defendants, the learned Judge referred to Section 40(1) of the Madras Act, distinguished the Full Bench judgment in Kutumba Sastri v. Sundaramma (supra) and observed:

It will be seen that the section provides for suits (1) relating to cancellation of a decree for money, (2) cancellation of a decree for other property having a money value, and (3) cancellation of other document which purports or operates to create, declare, assign, limit or extinguish rights in moveable or Immovable property. The Sub-section provides that fee shall be computed on the value of the subject matter of the suit. Then it proceeds to state how such value should be calculated. It provides that if the whole decree is sought to be cancelled, the amount or value of the property for which the decree was passed should be taken into account. In the case of other document which purports or operates to create, declare, assign, limit or extinguish rights in moveable or Immovable property, the value shall be deemed to be the value of the property. It is not clear as to whether the words “the amount or value of the property for which the decree was passed” are applicable to the cancellation of a document which creates or declares rights in moveable or Immovable property. In the case of suits for cancellation of either documents, apart from suits for cancellation of a decree for money or other property, the above clause would be certainly applicable. This would mean that in the case of suits for cancellation of other documents, the value of the subject matter of the suit shall be deemed to be the amount for which the documents was executed. It was submitted on behalf of the defendants that even in the case of a suit for cancellation of other documents, the value shall be deemed to be the value of the property. But this contention would ignore the effect of the words “value of the property for which the decree was passed”. Even conceding that the value of the property should be taken into account in suits for cancellation of other documents, there are two modes provided for to compute the value of the subject matter of the suit, (1) the value of the property and (2) the amount for which the document was executed.

Mr. Venugopalachari, learned Counsel for the petitioners, submitted that this view is opposed to the one taken in the decision in Kutumba Sastri v. Sundaramma where the Full Bench held that in a suit for cancellation of a deed of conveyance the valuation must be the valuation based on the market value of the property at the date of the plaint. The Full Bench was considering the question as to the court fee payable in a suit for cancellation of a deed of conveyance and for possession of the property covered by the deed. The court held that the plaintiff should value his relief in accordance with the provisions of Section 7(4)(A), and not according to Section 7(V) of the old court fees Act, 1870. After referring to the difference of opinion between the various decisions, the Full Bench preferred the view taken in Bali Reddi v. Khatifulal Sab 59 Mad. 240, followed in Venkatakrishniah v. All Sahib 48 L.W. 277. Section 7(4-A), of the old Act is slightly differently worded and it runs as follows:

In a suit for cancellation of a decree for money or other property having a money value, or other document securing money or other property having such value, according to the value of the subject matter of the suit, and such value shall be deemed to be– if the whole decree or other document is sought to be cancelled, the amount or the value of the property for which the decree was passed or the other document executed, if a part of the decree or other document is sought to be cancelled, such part of the amount or value of the property.

It will be seen that the above section relates to a suit for cancellation of a decree for money or other property having a money value, or other document securing money or other property having such value. There was some doubt whether the third part of the section relating to either document securing money would include sales. In Balireddy v. Badul Sabar, Venkatasubba Rao, J. referring to his earlier decision in Doraiswami v. Thangavelu held that sale deeds would come within the meaning of this section. Whether this Sub-section includes sale deeds or need not detain us, as Section 40(1) of Madras Act XIV of 1955 is differently worded and there can be no doubt that it brings within its purview sale deeds as it relates to other documents which purports or operates to create, declare, assign, limit or extinguish any right in moveable or Immovable property, Section 7(iv-A) of the old Act states that the value be deemed to be “if the whole decree or other document is sought to be cancelled, the amount or the value of the property for which the decree was passed or the other document executed”. The same words are used in Section 40(1) of the new Act. In construing this sub-clause in Section 7(iv-A) of the old Act, the Full Bench pointed out in the decision cited above that the suit within the meaning of the above section should be valued according to the value of the property, unless there is an indication to the contrary, must mean its market value. It may be noted that the court was considering the value of the property and does not appear to have taken note of the words “the other document executed”.

As already pointed out, Section 7(iv-A) of the Old Act as well as Section 40(1) of the present Act deal with suits for cancellation of a decree for money, cancellation of a decree for other property having a money value and suit for cancellation other document. In the case of other documents, the clause “the amount or the value of the property for which the decree was passed” cannot be held to be applicable and the only clause that can be properly applied is only the value for which the document was executed. In the third category in Section 40(1), to the words ‘other document, the words ‘which purports or operates to create, declare, assign, limit or extinguish’ rights in moveable or Immovable property are included. Obviously in suits for cancellation of other documents referred to in Section 40(1) of the new Act the valuation should be the value of the other document executed. In Balireddy v. Abdul Satar the court refers to the section which says that the value of the subject matter shall be deemed to be the amount for which the document is executed. But it confined its discussion to the actual value of the property and held that it referred only to the market value. This decision also does not refer to the valuation of the document on the basis of the amount for which the document is executed.

(emphasis supplied)

20. In Appikunju Meerasayu v. Meeran Pillai (supra), the learned Single Judge of Kerala High court relied on the judgment of Madras High court in Narasamma v. Satyanarayana, AIR 1951 Mad 793 and observed:

As I have pointed out earlier, the emphasis in Section 40(1) of the court fees Act is regarding the subject matter of this suit and in respect of that subject matter which admittedly is immovable property it will have to be valued on the amount or valued as the property which was no doubt covered by the decree in O.S. 21/1125. But the value or amount must certainly be the market value as on the date of the filing of the suit.

The same view was reiterated by another learned Single Judge of the Kerala High court in Uma Antherjanam v. Govindaru Namboodiripad and Ors. (supra).

21. In Sengoda Nadar v. Doraiswami Gounder and Ors. (supra), the learned Single Judge of Madras High court referred to earlier judgments but disagreed with the view expressed by the other learned Single Judges in Navaraja v. Kaliappa Gounder (supra) and Arunachalathammal v. Sudalaimuthu Pillai (supra) and followed the ratio of Full Bench judgment by recording the following observations:

With respect, I need hardly add that this is not the correct reading of the Full Bench decision. He has concluded by stating that obviously in suits for cancellation of “other documents” referred to in Section 40(1) of the present Act, the valuation should be the value of the other document executed. I have already pointed out that in the documents just as in the case of decrees, the distinction is between those that dealt with money and those that dealt with property. The amount mentioned in the decree or the document is relevant only when the question is with regard to the decree for money or document securing money. But in the case of decrees or documents dealing with property of money value, the value of the subject-matter of the suit should be computed on the value of the property for which the decree was passed or the document was executed. I need not repeat that the valuation in respect of the property dealt with by the decree or document should be the market value and such a market value should be as on the date of suit.

22. In S. Krishna Nair and Anr. v. N. Rugmoni Amma (supra), another learned Single Judge followed the ratio of Sengoda Nadar v. Doraiswami Gounder and Ors. (supra) and held that in a suit for cancellation of decree, the property is to be valued under Section 40(1) of the Tamil Nadu court fees and Suits Valuation Act, 1955 and the court fee is required to be paid on the market value of the property as on the date of the plaint.

23. In Krishnan Damodaran v. Padmanabhan Parvathy (supra), the Division Bench of Kerala High court reiterated the views expressed in Kutumba Sastri v. Sundaramma (supra), Appikunju Meerasayu v. Meeran Pillai (supra) and Sengoda Nadar v. Doraiswami Gounder and Ors. (supra) and held that court fee is payable on the market value of the property covered by the document and not on the basis of the valuation given in the document.

24. In P.K. Vasudeva Rao v. Hari Menon (supra), the Division Bench of the Kerala High court held as under:

True, as contended for on behalf of the plaintiff-revision petitioner, Section 40 nowhere uses the expression ‘market value’. But it is clear therefrom that the legislative intent is to levy court-fee on the just equivalent in money of the ‘other property’ comprised in the decree or portion thereof sought to be set aside; or dealt with in the ‘other document’ or part thereof sought to be cancelled. The section opens by saying that ‘in a suit for cancellation of a decree for money or other property having a money value’ (emphasis supplied) ‘fee shall be computed on the value of the subject matter of the suit’. ‘Money value’ of a property is its worth in terms of the currency of the land or in other words, is such money- equivalent thereof in open market; and not any amount less than that as where it is overvalued at a fancy-price. It cannot be that when, what is sought to be cancelled is a decree or part thereof for ‘other property’, i.e. property other than money, the value of such property for computation of court-fees is its ‘money- value’, and when, what is sought to be cancelled is a document or part thereof in respect of ‘other property’, the value of such property for such computation is not its ‘money-value’. Value of the subject matter, namely, value of the ‘other property’ in both cases is its money-value.

The object of the second and the third paras in Sub-section (1) of Section 40 is not to introduce any fiction but to provide for two situations, namely, (i) where the decree or the document as a whole is sought to be cancelled and (ii) where only part thereof is sought to be cancelled. In the first situation, the value of the subject matter is the amount for which the decree was passed or the document was executed; or the value of the property concerning which the decree was passed or the document was executed. In the second class of cases, the value of the subject matter of the suit is such part of the amount for which the decree was passed or the document was executed, in respect of which part, the decree or the document is sought to be cancelled; or the value of such part of the property concerning which the decree was passed or the document was executed, in respect of which part, the decree or the document is sought to be cancelled.

Section 40(1) has to be read as a whole. So read: (A) when the suit is for cancellation of a decree or other document for money, then the value of the subject-matter of the suit will be:- (i) the whole amount for which the decree was passed or the document was executed, if what is sought to be cancelled is the whole of the decree or the whole of the document; and (ii) such part of the amount for which the decree was passed or the document was executed, if only part of the decree or part of the document is sought to be cancelled; (B) when the suit is for cancellation of a decree or other document for a property having money-value, then, the value of the subject-matter of the suit will be:- (i) if the whole of the decree or the document is sought to be cancelled – the value of the property covered by the decree or the document; and (ii) if only part of the decree or of the document is to be cancelled; value of such part of the property in respect of which the decree was passed or the document was executed and to which extent such decree or such document is to be cancelled. We are not impressed with the submission that there is a distinction between the expressions ‘the value of the property for which the decree was passed or other document was executed’ and ‘the value of the property in respect of which the decree was passed or other document was executed’ for the purpose of computation of court-fees. The scheme of Section 40 is to make court-fees leviable on the sum of money or portion thereof, when what the plaintiff seeks is to get rid of his obligation and liability therefore or part thereof under a decree passed or a document executed by cancellation thereof, and on the money-equivalent of the property or portion thereof, when what he seeks to get rid of is his obligation and liability in relation to that property or portion thereof under a decree passed or a document executed in respect of it by cancellation thereof.

25. In R. Rangiah v. Thimma Setty (1963) 1 Mys LJ 67, the Division Bench of Mysore High court interpreted Section 4(iv)(A) of Mysore court fees Act, which is substantially similar to Section 40 of the Act and held that:

Now, one thing which is very clear from the paragraphs 1 & 2 of Section 4 (iv) A is that in a suit brought for the cancellation of a document executed for the purpose of securing property, the court Fee payable is on the value of such property. Although those paragraphs do not refer in terms to the market value of the property, as some of the other parts of the Act do, I have no doubt in my mind that the word ‘value’ occurring in those paragraphs has reference to no other value than the market value. The word ‘value’ when it occurs in an enactment like the court fees Act, has to my mind, particularly known and definite meaning. That word has reference to the price which the property will fetch when exposed to the test of competition.

Mr. Gopivallabha Iyengar had to admit that the word ‘value’ occurring in the first paragraph would have to be understood as the market value if paragraphs 2 and 3 did not exist in Section 4(iv) A. If, therefore, the word ‘value’ occurring in the first paragraph means market value, I see nothing in paragraphs 2 and 3 on which Mr. Gopivallabha Iyengar strongly relied which can persuade me to take the view that the word ‘value’ occurring in the first paragraph which, as ordinarily understood, is the market value, should be understood differently.

Paragraph 2 does no more than to merely provide that, if a document is sought to be cancelled in its entirety, the court Fee is payable on the value of the whole of the property in respect of which the document is executed. Likewise paragraph 3 merely provides that where the cancellation sought is a partial cancellation, court Fee is payable only on the value of the property in respect of which cancellation is sought. It is for that purpose that the words “value shall be deemed to be” are used by the Legislature in the first paragraph of the clause and not for the purpose of assigning to the word ‘value’ occurring in the first paragraph a meaning different from that which has to be ordinarily given to it.

It is no doubt true that the second paragraph of Section 4(iv) A directs that the court Fee payable in a suit brought for the cancellation of a document is the court Fee on the value of the property ‘for which’ the document was executed. Ordinarily the expression ‘for which’ occurring in that paragraph might have justified the interpretation that the amount on which the Curt Fee has to be paid is the amount specified in the document. But, that, that would not be correct way of understanding those words occurring in paragraph 2 of that clause is clear from the fact that Section 4(iv) A does not provide merely for cancellation of a document executed for a specified consideration such as a sale deed, but also provides for the payment of court Fee even in suits brought for cancellation of other documents such as a deed of settlement, a gift deed or a trust deed. In the latter category of cases it would not be appropriate to regard those documents as executed for a consideration or a specified amount and those cases would not be cases in which there would be any value ‘for which the document is executed.

The second paragraph which requires the payment of court Fee on the value of the property ‘for which’ the document was executed, does not, when properly understood, direct the payment of such court Fee on the value for which the document was executed, but on the value of the property for which it was executed. In other words, the words ‘for which’ occurring in that paragraph do not refer to the value but to the property to which the document relates. The words ‘for which occurring in that paragraph, in my opinion, mean ‘for securing which’, so that what that paragraph directs is the payment of court Fee on the value of the property for securing which the document is executed.

That, that is the correct interpretation is indicated by the word ‘securing’ occurring in the first paragraph of the clause in the context of a document of which cancellation is sought. It therefore follows that what is relevant for the purpose of Section 4(iv) A is not the value of the property specified in the document but its real and actual value when the suit is brought. It is on that value that the court fee has to be paid if the suit is for the cancellation of a document recording a transaction involving such property.

26. In Pachayammal v. Dwaraswamy Pillai (supra), another Division Bench of Kerala High court interpreted Sections 7 and 40 of the Act and held:

Section 7 of the Act though deals with determination of market value, it starts with a saving clause. A reading of Section 7(1) makes it clear that if there is a specific provision in the Act for valuing the suit, the Sub-sections (2) to (4) of Section 7 can have no application. According to the counsel for the petitioners, Section 40 is an independent provision for valuation of suits for cancellation of decrees and documents and in view of Section 7(1), market value of the property is not a criteria at all. Whenever market value of the property is to be taken into account, it is specifically stated in the statute. Sections 25, 27, 29, 30, 37, 38, 45 & 48 etc, specifically provide that market value of the property involved in the suit is to be taken as basis for valuation. But, the word ‘market’ is conspicuously absent in Section 40. When the section is plain and unambiguous, courts should not venture to add words to it to give an entirely different scope to the said provisions never intended by the legislature. therefore, it was argued that concept of “market value of the property’ cannot be brought into Section 40. Learned Counsel invited our attention to the decisions of the Apex court in Gurudevdatta VKSSS Maryadit and Ors. v. State of Maharashtra and Ors., (2001) 4 SCC 534 (Paragraph 26) and Padma Sundara Rao (Dead) and Ors. v. State of T.N. and Ors., (2002) 3 SCC 533 (Paragraphs 14 and 15). It is true that when the words of a statute are clear, plain or unambiguous, i.e. they are reasonably susceptible to only one meaning, the courts are bound to give effect to that meaning irrespective of consequences. The rule stated by TINDAL, C.J. in Sussex Peerage case, (1844) 11 Cl & F 85, p. 143) is in the following form: “If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves do alone in such cases best declare the intent of the lawgiver”.

Here, the question is what is clearly stated in Section 40 as the criteria for valuation of suit filed for cancellation of a document. Section 40 of the Act mandates that if a suit is filed for cancelling a document which creates, assigns or extinguishes the right, title or interest in an immovable property, if the whole document is to be cancelled, the value of the property for which the document was executed and if plaint is only to cancel part of the document, such part of the value of property for which document was executed is the basis for suit valuation. therefore, value depends on the value of property for which document was executed and sought to be cancelled and not the value mentioned in the document. Here, a gift deed is sought to be cancelled. Then on a plain meaning of Section 40, suit should be valued at the value of the property for which gift deed was executed and not the value of the document or value mentioned in the document. If a gift deed is executed out of love and affection, which is a valid consideration, suit valuation depends upon not on estimation of value of love and affection or null value, but, on the value of the property covered by the gift deed. Then the question is what is the value of property at the time of filing the suit. In legal terms value of property means market value of property and when valuation is considered with regard to suit valuation, it can only be market value of property at the time of filing the suit and nothing else. Section 7(1) clearly states that except otherwise provided, court fee payable under the Act depends on the market value determined on the date of presentation of plaint. No contrary indication is made in Section 40.

27. In Smt. Narbada v. Smt. Aashi, AIR 1987 Rajasthan 162, the learned Single Judge of Rajasthan High court followed the ratio of the Division Bench of Kerala High court in P.K. Vasudeva Rao v. Hari Menon (supra) and held that in a suit for cancellation of decree, the court fee is required to be paid on the market value of the property.

28. In Andalammal v. B. Kanniah, (1971) II Madras Law Journal 205, the learned Single Judge considered the question relating to court fee in the context of a suit filed for cancellation of a settlement deed on the ground that the same had been procured by fraudulent misrepresentation. In the settlement deed, the property was valued at ` 10,000/-. The learned trial court held that the suit should be valued on the market value of the property as on the date of plaint and not on the basis of the value of suit in the settlement deed and accordingly directed the plaintiff to pay deficit court fee after furnishing the market value of the property. The learned Single Judge referred to Section 40 of the Madras Act and held:

It is important to mark the words “the amount or value of the property for which the document was executed”. If the Legislature had said “the amount or value of the property in respect of which the document was executed”, it would be reasonable to hold that the basis shall be the market value of the property, regardless of what the document says it is. But as the section refers to “the amount or value of the property for which the document was executed”, the legislative intent is clear that the basis for the purpose of valuation shall be the amount or value mentioned in the document itself. Evidently, the intention of the Legislature is that when a person seeks to cancel a document executed by himself, he shall pay court-fee upon the value which he has chosen to put upon the property in the document he seeks to cancel. The word “value” ordinarily connotes the price set on a thing, and when the Legislature directs that the value of the subject-matter shall be deemed to be the amount or value of the property for which the document was executed, I see no warrant for ignoring the plain language or the section and holding that the value shall be the market value of the property. In fact, the Legislature has expressly used the words “market value” in twelve other sections of the Act in contra distinction to the word “value” used in Section 40(1) of the Act. I, therefore, hold that the court-fee paid by the petitioner upon the basis of the value of the property as given in the settlement deed is correct.

29. In Allam Venkateswara Reddy v. Golla Venkatanarayana, AIR 1975 A.P. 122, a learned Single Judge of Andhra Pradesh High court construed Section 37 of the Andhra Pradesh court-fees and Suits Valuation Act, which is pari materia to Section 40 of the Act, and held:

Section 37(1) contemplated two kinds of suits, viz. suits for cancellation of decrees, whether they are for money or for property having a money value and suits for cancellation of documents creating or extinguishing rights whether in money, movable or immovable property. It is stated therein that for the purpose of payment of court-fee in the suit the fee shall be computed on the basis of the value of the subject-matter of the suit and that such value shall be deemed to be the one indicated in Clause (a) of Section 37(1) wherein it is mentioned that if the whole decree or other document is sought to be cancelled, the amount or value of the property for which the decree was passed or other document was executed shall be deemed to be the value for computation of court-fee . From this it is very clear that for cancellation of a document regarding a property the value shall be deemed to be the amount for which the document regarding a property the value shall be deemed to be the amount for which the document sought to be cancelled was executed with regard to the property. In the present case, the two sale deeds in question were executed for a sum of ` 18,000/-. therefore, the court-fee has to be paid on that amount and not on the present market value of the properties which are the subject-matter of the two sale deeds. A reading of Section 37 does not show that the court-fee has to be computed on the basis of the present market value of the document sought to be cancelled.

30. In view of our analysis of the relevant statutory provisions, it must be held that the judgments of the Division Bench of Madras High court and of the learned Single Judges in Venkata Narasimha Raju v. Chandrayya (supra), Navaraja v. Kaliappa Gounder (supra), Arunachalathammal v. Sudalaimuthu Pillai (supra) and Andalammal v. B. Kanniah (supra) as also the judgment of the learned Single Judge of Andhra Pradesh High court in Allam Venkateswara Reddy v. Golla Venkatanarayana (supra) lay down correct law. In the first of these cases, the Division Bench of Madras High court rightly observed that when there is a special rule in the Act for valuing the property for the purpose of court fee, that method of valuation must be adopted in preference to any other method and, as mentioned above, Section 40 of the Act certainly contains a special rule for valuing the property for the purpose of court fee and we do not see any reason why the expression ‘value of the property’ used in Section 40(1) should be substituted with the expression ‘market value of the property’.

31. The judgment of the learned Single Judge of Madras High court in Balireddi v. Khatipulal Sab (supra), which was approved by the Full Bench of that court in Kutumba Sastri v. Sundaramma (supra) turned primarily on the interpretation of Section 7(iv-A) of the court Fee Act as amended by Madras Act which refers to the value of the property simpliciter and the court interpreted the same as market value. Neither the learned Single Judge nor the Full Bench were called upon to interpret a provision like Section 40 of the Act. therefore, the ratio of those judgments cannot be relied upon for the purpose of interpreting Section 40 of the Act. In Arunachalathammal v. Sudalaimuthu Pillai (supra), the learned Single Judge rightly distinguished the judgment of the Full Bench by making a pointed reference to the language employed in Section 40(1) of the Madras Act No. XIV of 1955, which is identical to Section 40 of the Act. In Sengoda Nadar v. Doraiswami Gounder and Ors. (supra) and S. Krishna Nair and Anr. v. N. Rugmoni Amma (supra), the other learned Single Judges did not correctly appreciate the ratio of the judgment of the coordinate Bench in Arunachalathammal v. Sudalaimuthu Pillai (supra) and distinguished the same without assigning cogent reasons. We may also observe that if the learned Single Judges felt that the view expressed by the co-ordinate Bench was not correct, they ought to have referred the matter to the larger Bench. The judgments of the Division Benches of Kerala High court in Krishnan Damodaran v. Padmanabhan Parvathy (supra), P.K. Vasudeva Rao v. Hari Menon (supra) and Pachayammal v. Dwaraswamy Pillai (supra) and of the learned Single Judges in Appikunju Meerasayu v. Meeran Pillai (supra) and Uma Antherjanam v. Govindaru Namboodiripad and Ors. (supra) also do not lay down correct law because the High court did not appreciate that the legislature has designedly used different language in Section 40 of the Act and the term ‘market value’ has not been used therein. The same is true of the judgments of the learned Single Judges of Mysore and Rajasthan High courts noticed hereinabove.

32. In the result, the appeal is allowed. The impugned order of the learned Single Judge of Kerala High court as also the order passed by the trial court directing the appellant to pay court fee on the market value of the property, in respect of which the sale deed was executed by respondent No. 1 in favour of respondent No. 2, are set aside. The trial court shall now proceed with the case and decide the same in accordance with law. The parties are left to bear their own costs.

Indigent person: in terms of explanation I to Rule 1 of Order 33 of the Code of Civil Procedure, is one who is either not possessed of sufficient means to pay court fee when such fee is prescribed by law, or is not entitled to property worth one thousand rupees when such court fee is not prescribed. In both the cases, the property exempted from the attachment in execution of a decree and the subject-matter of the suit shall not be taken into account to calculate financial worth or ability of such indigent person. Moreover, the factors such as person’s employment status and total income including retirement benefits in the form of pension, ownership of realizable unencumbered assets, and person’s total indebtness and financial assistance received from the family member or close friends can be taken into account in order to determine whether a person is possessed of sufficient means or indigent to pay requisite court fee. Therefore, the expression “sufficient means” in Order 33 Rule 1 of the Code of Civil Procedure contemplates the ability or capacity of a person in the ordinary course to raise money by available lawful means to pay court fee.

AIR 2011 SC 3221 : JT 2011 (12) SC 51 : (2011) 7 SCALE 718

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SUPREME COURT OF INDIA

Mathai M. Paikeday Versus C.K. Anthony

(Before : G.S. Singhvi and H.L. Dattu, JJ.)

Civil Appeal No. 5493 of 2011 (Arising out of S.L.P. (C) No. 9544 of 2009) and C.A. No. 5494 of 2011 : Decided On: 11-07-2011

Counsel for the Parties:

Jawaharlal Gupta, Sr. Adv., Shishir Pinaki and Amit Singh, Advs.

Subramonium Prasad, Adv.

ORDER

H.L. Dattu, J—

Delay condoned.

1. Leave granted.

2. These appeals, by special leave, are directed against the common final order passed by the High court of Kerala at Ernakulam in C.M.C.P. Nos. 53 and 60 of 2004 dated 11.08.2008, whereby the High court has allowed the petitions and has permitted the Respondent to prosecute the appeals as an indigent person.

3. The brief factual matrix relating to these appeals:

The Appellant had filed two suits for recovery of money against the Respondent, who is a retired Deputy Conservator of Forest drawing a pension of `10,500/-. These suits were decreed in favour of the Appellant. Being aggrieved, the Respondent had preferred Regular First Appeals before the High court of Kerala along with petitions to prosecute the said appeals as an indigent person under Order 44 Rule 1 of the Code of Civil Procedure, 1908. The High court of Kerala, without holding any inquiry as contemplated under Order 33 Rule 1A of the Code of Civil Procedure, permitted the Respondent to institute the said appeals as an indigent person, against which a special leave petition was preferred before this court. This court remanded the matter to the High court for passing fresh orders after conducting an inquiry in accordance with Order 33 Rule 1A of the Code of Civil Procedure.

4. Subsequently, the High court after conducting the inquiry into the means and financial capacity of the Respondent, has permitted the Respondent to prosecute Regular First Appeals as an indigent person vide its order dated 11.08.2008. Aggrieved by the same, the Appellant is before us in these appeals.

5. The issue involved in the present appeals for our consideration is: Whether the Respondent is an indigent person as not possessed of sufficient means to pay the court fees and, consequently, entitled to avail the benefits under Order 44 of the Code of Civil Procedure.

6. Shri. Jawahar Lal Gupta, learned senior counsel, appears for the Appellant and the Respondent is represented by Shri. Subramonium Prasad, learned Counsel.

7. The learned senior counsel Shri. Jawahar Lal Gupta submits that the Respondent has admitted during the inquiry before the High court that he is a retired Government employee and receives `10,500/- by way of pension and also receives money from his son who is employed in a foreign country. The learned senior counsel further submits that the Respondent had failed to produce passbooks of his bank account in order to deny the fact of receiving money from his son. In other words, the failure of the Respondent to produce bank accounts and passbooks amounts to suppression of the fact of receiving substantial amount of money from his son. The learned senior counsel further argues that the Respondent is having sufficient means to pay court fees and is not entitled to prosecute the Regular First Appeals before the High court as an indigent person in terms of Order 44 Rule 1 of the Code of Civil Procedure.

8. These arguments of the learned senior counsel for the Appellants were refuted by Shri. Subramanion Prasad, the learned Counsel for the Respondent, who supported the impugned final order of the High court.

9. Order 33 of the Code of Civil Procedure deals with suits by indigent persons whereas Order 44 thereof deals with appeals by indigent persons.

10. Order 33 Rule 1 of the Code of Civil Procedure provides for instituting of suits by indigent person, stating:

1. Suits may be instituted by indigent person– Subject to the following provisions, any suit may be instituted by an indigent person.

Explanation I.–A person is an indigent person,–

(a) if he is not possessed of sufficient means (other than property exempt from attachment in execution of a decree and the subject-matter of the suit) to enable him to pay the fee prescribed by law for the plaint in such suit, or

(b) where no such fee is prescribed, if he is not entitled to property worth one thousand rupees other than the property exempt from attachment in execution of a decree, and the subject-matter of the suit.

Explanation II.–Any property which is acquired by a person after the presentation of his application for permission to sue as an indigent person, and before the decision of the application, shall be taken into account in considering the question whether or not the applicant is an indigent person.

Explanation III–Where the Plaintiff sues in a representative capacity, the question whether he is an indigent person shall be determined with reference to the means possessed by him in such capacity.

11. Order 44 of Code of Civil Procedure provides for instituting an appeal as an indigent person. The provision reads:

1. Who may appeal as an indigent person – Any person entitled to prefer an appeal, who is unable to pay the fee required for the memorandum of appeal, may present an application accompanied by a memorandum of appeal, and may be allowed to appeal as an indigent person, subject, in all matters, including the presentation of such application, to the provisions relating to suits by indigent person, in so far as those provisions are applicable.

12. The object and purpose of Order 33 and Order 44 of the Code of Civil Procedure are to enable a person, who is ridden by poverty, or not possessed of sufficient means to pay court fee, to seek justice. Order 33 and Order 44 of the Code of Civil Procedure exempts such indigent person from paying requisite court fee at the first instance and allows him to institute suit or prosecute appeal in forma pauperis.

13. In A. A. Haja Muniuddin v. Indian Railways, (1992) 4 SCC 736, this court has observed:

5…. Access to justice cannot be denied to an individual merely because he does not have the means to pay the prescribed fee.

14. In Union Bank of India v. Khader International Construction,, (2001) 5 SCC 22, this court has held:

20. Order 33 Code of Civil Procedure is an enabling provision which allows filing of a suit by an indigent person without paying the court fee at the initial stage. If the Plaintiff ultimately succeeds in the suit, the court would calculate the amount of court fee which would have been paid by the Plaintiff if he had not been permitted to sue as an indigent person and that amount would be recoverable by the State from any party ordered by the decree to pay the same. It is further provided that when the suit is dismissed, then also the State would take steps to recover the court fee payable by the Plaintiff and this court fee shall be a first charge on the subject-matter of the suit. So there is only a provision for the deferred payment of the court fees and this benevolent provision is intended to help the poor litigants who are unable to pay the requisite court fee to file a suit because of their poverty. Explanation I to Rule 1 Order 33 states that an indigent person is one who is not possessed of sufficient amount (other than property exempt from attachment in execution of a decree and the subject-matter of the suit) to enable him to pay the fee prescribed by law for the plaint in such suit. It is further provided that where no such fee is prescribed, if such person is not entitled to property worth one thousand rupees other than the property exempt from attachment in execution of a decree and the subject-matter of the suit he would be an indigent person.

15. In R.V. Dev v. Chief Secretary, Govt. of Kerala,, (2007) 5 SCC 698, this court has held:

8. Order 33 of the Code of Civil Procedure deals with suits by indigent persons whereas Order 44 thereof deals with appedls by indigent persons. When an application is filed by a person said to be indigent, certain factors for considering as to whether he is so within the meaning of the said provision are required to be taken into consideration therefor. A person who is permitted to sue as an indigent person is liable to pay the court fee which would have been paid by him if he was not permitted to sue in that capacity, if he fails in the suit at the trial or even without trial. Payment of court fee as the scheme suggests is merely deferred. It is not altogether wiped off.

16. The concept of indigent person has been discussed in Corpus Juris Secundum (20 C.J.S. Costs 93) as following:

93. What constitutes indigency: The right to sue in forma pauperis is restricted to indigent persons. A person may proceed as poor person only after a court is satisfied that he or she is unable to prosecute the suit and pay the costs and expenses. A person is indigent if the payment of fees would deprive one of basic living expenses, or if the person is in a state of impoverishment that substantially and effectively impairs or prevents the pursuit of a court remedy. However, a person need not be destitute. Factors considered when determining if a litigant is indigent are similar to those considered in criminal cases, and include the party’s employment status and income, including income from government sources such as Social Security and unemployment benefits, the ownership of unencumbered assets, including real or personal property and money on deposit, the party’s total indebtedness, and any financial assistance received from family or close friends. Not only personal liquid assets, but also alternative sources of money should be considered.

17. The eligibility of person to sue in forma pauperis has been considered in American Jurisprudence (20 Am. Jur. 2d Costs 100) as thus:

100. Eligibility to sue in forma pauperis; generally: The burden of establishing indigency is on the Defendant claiming indigent status, who must demonstrate not that he or she is entirely destitute and without funds, but that payments for counsel would place an undue hardship on his or her ability to provide the basic necessities of life for himself or herself and his or her family. Factors particularly relevant to the determination of whether a party to a civil proceeding is indigent are: (1) the party’s employment status and income, including income from government sources such as social security and unemployment benefits; (2) the ownership of any unencumbered assets, including real or personal property and monies on deposit; and finally (3) the party’s total indebtedness and any financial assistance received from family or close friends. Where two people are living together and functioning as a single economic unit, whether married, related, or otherwise, consideration of their combined financial assets may be warranted for the purposes of determining a party’s indigency status in a civil proceeding.

18. To sum up, the indigent person, in terms of explanation I to Rule 1 of Order 33 of the Code of Civil Procedure, is one who is either not possessed of sufficient means to pay court fee when such fee is prescribed by law, or is not entitled to property worth one thousand rupees when such court fee is not prescribed. In both the cases, the property exempted from the attachment in execution of a decree and the subject-matter of the suit shall not be taken into account to calculate financial worth or ability of such indigent person. Moreover, the factors such as person’s employment status and total income including retirement benefits in the form of pension, ownership of realizable unencumbered assets, and person’s total indebtness and financial assistance received from the family member or close friends can be taken into account in order to determine whether a person is possessed of sufficient means or indigent to pay requisite court fee. Therefore, the expression “sufficient means” in Order 33 Rule 1 of the Code of Civil Procedure contemplates the ability or capacity of a person in the ordinary course to raise money by available lawful means to pay court fee.

19. Admittedly the Respondent is a retired Deputy Conservator of Forest, Government of Kerala and drawing a pension of `10,500/-. It was also stated by him in his deposition before the High court on 03.01.2008 that his son is employed abroad and does not regularly send him money and in response to a suggestion, whether his bank account discloses the amount of money sent by his son, he does not deny the suggestion. However, it is noteworthy to mention that Respondent has never denied that his son sends him money. Furthermore, the Respondent had failed to establish that the amount of money received from his son is not substantial or insufficient to pay court fee by not producing passbook of his bank account. In our considered opinion, non-production of bank account transaction details, amounts to suppression of the facts and in view of this, an adverse inference can be drawn against the Respondent that he is receiving a substantial or sufficient amount of money from his son. Therefore, the amount of money received by the Respondent from his son and by way of pension amounts to a sufficient means to pay court fee which disentitles him to be an indigent person under Order 33 Rule 1 and Order 44 Rule 1 of the Code of Civil Procedure.

20. In the light of above discussion and facts and circumstances of the present case, the Respondent cannot be declared as an indigent person in order to prosecute Regular First Appeals before the High court. Accordingly, the present appeals are allowed and the impugned final order of the High court dated 11.08.2008 is set aside. However, the Respondent is granted 45 days time from today to deposit the court fee if he desires to prosecute Regular First Appeals filed before the High court. Costs are made easy.