Felix Varghese and Cibi Felix v. Jaya Sivaraman and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU WEDNESDAY, THE 25TH DAY OF OCTOBER 2017/3RD KARTHIKA, 1939 OP (RC).No. 172 of 2016 --------------------------RCP 167/2015 of THE III ADDL. MUNSIFF & RENT CONTROL COURT, ERNAKULAM DATED 31-08-2016 PETITIONERS/APPELLANT/PETITIONERS.: ------------------------------------ ## 1. FELIX VARGHESE S/O LATE FR. VARGHESE PUNNAKUZHI, AGED 42 YEARS, PUNNAKUZHIYI HOUSE, VETTIKKAL PO, MULANTHURUTHY, ERNAKULAM DISTRICT. PIN.682314. 2. CIBI FELIX, W/O FELIX, AGED 42 YEARS, PUNNAKUZHIYI HOUSE, VETTIKKAL PO, MULANTHURUTHY, ERNAKULAM DISTRICT, PIN. 682314. BY ADVS.SRI.ALEX.M.SCARIA SMT.SARITHA THOMAS RESPONDENTS/RESPONDENT/RESPONDENT AND STATE.: ---------------------------------------------------------------------------- 1. MRS.JAYA SIVARAMAN. W/O SIVARAJAN, AGED 48 YEARS, NJARATHADATHIL HOUSE, MULANTHURUTHI, ERNAKULAM.682314. 2. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO THE DEPARTMENT OF FINANCE, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.695001. BY ADV. SRI.JACOB E SIMON BY ADV. SRI.N.R.RAJESH BY GOVERNMENT PLEADER SRI.K.M. HASHIR THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON 25-10-2017, ALONG WITH OPRC. 174/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (RC).No. 172 of 2016 () --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ----------------------- EXHIBIT P1 TRUE COPY OF THE PETITION IN R.C.P 167/2015 ON THE FILES OF THE RENT CONTROLLER,ERNAKULAM. EXHIBIT P2 TRUE COPY OF THE ORDER DATED 31.8.2016 IN R.C.P 167/2015 ON THE FILES OF THE RENT CONTROLLER, ERNAKULAM. EXHIBIT P3 TRUE COPY OF THE UNNUMBERED MEMORANDUM OF APPEAL PREFERRED BEFORE THE RENT CONTROL APPELLATE AUTHORITY-DISTRICT COURT, ERNAKULAM AGAINST THE ORDER DATED 31.8.2016 IN R.C.P NO.167/2015 ON THE FILES OF THE RENT CONTROLLER, ERNAKULAM. EXHIBIT P4 TRUE COPY OF THE RELEVANT PORTION OF KERALA FINANCE BILL (BILL NO.396) OF 2016 OF THE 13TH KERALA LEGISLATIVE ASSEMBLY. EXHIBIT P5 TRUE COPY OF THE RELEVANT PORTION OF THE KERALA FINANCE BILL (BILL 16 OF 2016 OF THE 14TH KERALA LEGISLATIVE ASSEMBLY). EXHIBIT P6 TRUE COPY OF THE CIRCULAR DATED 29.8.2016 BEARING IN G.O.(P) NO.9/2016/LAW. EXHIBIT P7 A TRUE COPY OF THE ORDER DATED 28.11.2016 OF THE RENT CONTROL APPELLATE AUTHORITY, ERNAKULAM. //True Copy// P.S.To Judge ## **K.HARILAL & A.M.BABU, JJ** - - - - - - - - - - - - - - - - - - - - O.P.(RC).Nos. 172 & 174 of 2016 - - - - - - - - - - - - - - - - Dated : 25[th] October, 2017 - - - - - - - - - - - - - - - - - - - - - - - - **CR** ## **JUDGMENT** ## A.M.Babu, J. - 1.Is the petitioner in a rent control petition liable to pay any additional court fees under Sec.76(1) of the Kerala Court Fees and Suits Valuation Act (for short, the Act) ? If liable, can it be levied from him in his appeal preferred against the order of the rent control court in a rent control petition filed before the issuance of the notification under Sec.76 (1) of the Act ? These are the questions we are called upon to decide in the two original petitions at hand. - 2.Petitioners are the landlords. They filed separate petitions against their two tenants to get the fair rent of the tenanted premises fixed. The rent control court dismissed both the petitions. The petitioners filed appeals. But the same were not numbered. The office of the appellate authority **OP(RC).172 & 174/2016** 2 noted a defect. The defect was that the additional court fees of Rs.100/- leviable under Sec.76(1) of the Act was not paid. The petitioners took the stand that they were not liable to pay the additional court fees. The reason stated was that the rent control petitions were filed before the notification under Sec.76(1) of the Act was issued. The matter was heard by the appellate authority. The court below passed detailed orders. The learned judge said that his being a civil court it was not for him to nullify the government order on the ground that it was not applicable to cases filed before the amendment to Sec.76(1) of the Act. The petitioners were found liable to pay the additional court fees in the appeals. They were given 15 days' time to cure the defect. The said orders are challenged in the original petitions. - 3.Heard Sri.Alex M.Scaria, the learned counsel for the petitioners. The tenants did not enter appearance. The 2[nd] respondent in each original petition is the State of Kerala. Heard the learned government pleader **OP(RC).172 & 174/2016** 3 Sri.K.M.Hashir. ## 4.Sec.76(1) of the Act reads thus : Notwithstanding anything contained in this Act or any other law for the time being in force and subject to section 4A of the Act and sub-rule(1) of rule 397 of the Kerala Motor Vehicles Rules, 1989 it shall be competent for the government to levy an additional court fee by notification in the gazette, in respect of original petitions, original applications, appeals or revisions to tribunals, appellate authorities and original suits in civil courts other than in family courts at a rate not exceeding one percent of the amount involved in the dispute and in other cases at a rate not exceeding one hundred rupees for each original suit, original petition, original application, appeal or revision. The government did issue a notification under Sec.76 (1). The petitioners have produced a copy of the notification as Ext P6. The same is G.O.(P) No.9/2016/Law dated 29.08.2016 (S.R.O.No.578/2016). It reads as follows : In exercise of the powers conferred by subsection (1) of section 76 of the Kerala Court Fees and Suits Valuation Act, 1959 (10 of 1960), the government of Kerala hereby rescind the notification issued under G.O.(P) No.5/2016/Law dated 7[th] April, 2016 and published in the Kerala gazette extraordinary **OP(RC).172 & 174/2016** 4 No.772 dated 8[th] April, 2016 and in supersession of the notification issued under G.O.(P) No.116/2002/Law dated 5[th] April, 2002 and published as S.R.O.No.226/2002 in the Kerala gazette extraordinary No.420 dated 5[th] April, 2002 hereby athorise the levy by the civil courts, the tribunals and appellate authorities, an additional court fee in respect of each original suits, original petitions, original applications, appeals or revisions at the rate of 1% of the amount involved in the dispute, in cases where it is capable of valuation and in other cases at the rate of Rupees one hundred in each such case. The amount so collected shall be credited to the Kerala Legal Benefit Fund constituted under sub-section (2) of section 76 of the Kerala Court Fees and Suits Valuation Act, 1959. No amount is involved in a dispute in a rent control proceedings. Therefore, if the petitioner in a rent control petition is liable to pay additional court fees under Sec.76(1) of the Act, the amount he should pay is only Rs.100/-. - 5.Court fees is payable in a rent control petition not under the Act. It is payable under rule 7(4) of the Kerala Buildings (Lease and Rent Control) Rules, 1979 (for short, the KBLR Rules). That is one of the reasons why the petitioners contend that they are not liable to pay the additional court fees under Sec.76 **OP(RC).172 & 174/2016** 5 (1) of the Act. Rule 7(4) of the KBLR Rules states that every application under the Kerala Buildings (Lease and Rent Control) Act shall have court fees stamps affixed thereon at the rates specified in rule 7(4). The contention of the petitioners, referred to above, cannot be accepted in view of the non-obstante clause in Sec.76(1) of the Act. As Sec.76(1) states the government shall be competent to levy an additional court fees by notification in the official gazette notwithstanding anything contained in the Act or any other law for the time being in force. It is also provided that such additional court fees is leviable in respect of original petitions, original applications, appeals or revisions to tribunals, appellate authorities and original suits in civil courts other than in family courts. Therefore the additional court fees under Sec.76(1) is leviable in rent control proceedings as well. We find so. - 6.Admittedly the petitioners filed the rent control petitions before the issuance of Ext P6 notification. Therefore they contend that they are not liable to **OP(RC).172 & 174/2016** 6 pay the additional court fees in their appeals. This contention cannot be brushed aside. An appeal is not a fresh proceedings. It is only the continuation of the original proceedings. Ext P6 notification cannot operate retrospectively. Therefore the petitioners are not liable to pay in their appeals any additional court fees introduced after the filing of their rent control petitions. We may refer to the decision of the Supreme Court placed before us by the learned counsel for the petitioners. 7.The decision is State of Bombay v. Supreme General Films Exchange Ltd (AIR 1960 SC 980). That was a case where the court fees was enhanced by amending the statute after the filing of the suit by the plaintiff, but before the filing of the appeal by the defendant. The defendant paid the enhanced court fees in the appeal. The appeal was later withdrawn with the leave of the High Court. Thereafter the appellant moved an application for refund of the excess court fees paid in accordance with the amendment to the statute. The appellant contended that the excess **OP(RC).172 & 174/2016** **==> picture [7 x 9] intentionally omitted <==** court fees was paid by mistake and in ignorance of its legal right. The High Court directed to refund the excess court fees paid. The Supreme Court upheld the decision of the High Court. The apex court has referred to its earlier decision in Hoosein Kasam Dada (India) Ltd v. The State of Madhaya Pradesh (1953 SCR 987). That decision holds that the appellant had a vested right of appeal when the original proceedings was initiated and that his right of appeal was governed by the law as it stood then. It is held in State of Bombay v. Supreme General Films Exchange Ltd (AIR 1960 SC 980) that an impairment of the right of appeal by putting a new restriction thereon or imposing a more onerous condition is not a matter of procedure only, but it impairs or imperils a substantive right. It is also held that an enactment which does so is not retrospective unless it says so expressly or by necessary intendment. Situation is more or less similar in the present case. This court also had occasion to consider the same question. The decisions are Usha v. Food Corporation of India (1997 KHC 47) 8 ## **OP(RC).172 & 174/2016** and Abdulla v. State of Kerala (2003 KHC 163). We place reliance on those decisions also. The petitioners are not liable to pay in their appeals the additional court fees under Sec.76(1) of the Act since no such fees was leviable from them when they filed the rent control petitions. - 8.The original petitions are allowed. The impugned orders are set aside. The court below shall number the appeals if they are otherwise in order. The court shall decide whether those appeals should be admitted or not without insisting on payment of additional court fees under Sec.76(1) of the Act. Sd/- ## **K.HARILAL Judge** **Sd/-** ## **A.M.BABU Judge** Mrcs/9.10 //True Copy// P.S.To Judge