K.O. Thomas v. Biju and State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **WEDNESDAY, THE 4TH DAY OF JULY 2018 / 13TH ASHADHA, 1940** **OP(C).No. 3259 of 2017** **(AGAINST ORDER DATED 25.10.2017 IN UNNUMBERED AS OF 2017 PENDING BEFORE THE PRINCIPAL DISTRICT COURT, ERNAKULAM)** ## **PETITIONER(S)/APPELLANT/PLAINTIFF** **K.O.THOMAS, AGED 53,S/O.OUSEPH,KONAMKODATHU HOUSE, KADAVANTHRA,KOCHI-20.** **BY ADVS.SRI.K.R.VINOD** **SMT.M.S.LETHA** ## **RESPONDENT(S)/RESPONDENT/DEFENDANT:** **1. BIJU, AGED 39 YEARS,S/O.DEVASSY,RESIDING AT 'MANAKKAL HOUSE', PERUMANOOR.P.O, KOCHI-15.** ***ADDL.R2 STATE OF KERALA, REPRESENTED BY LAW SECRETARY, LAW (G) DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.** ***(ADDITIONAL SECOND RESPONDENT IS SUO MOTU IMPLEADED VIDE ORDER DATED 15.11.2017)** **ADDL.R2 BY SRI.K.B.UDAYAKUMAR, SR.GOVERNMENT PLEADER** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 6-4-2018, THE COURT ON 04-07-2018 DELIVERED THE FOLLOWING:** ## **OP(C).No. 3259 of 2017 (O)** ## ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 THE COPY OF THE PLAINT IN O.S.NO.1020/2013 IN THE FILES OF THE 1ST ADDITIONAL MUNSIFF'S COURT,ERNAKULAM EXHIBIT P2 THE COPY OF THE APPEAL SUIT FILED BY THE PETITIONER BEFORE THE HON'BLE DISTRICT COURT,ERNAKULAM EXHIBIT P3 THE CERTIFIED COPY OF THE ORDER OF THE LEARNED DISTRICT JUDGE DATED 25.10.2017 DIRECTING THE PETITIONER TO PAY THE LEGAL BENEFIT FUND IN EXHIBIT P2 APPEAL SUIT.** **//TRUE COPY//** **PS TO JUDGE.** jg-6/7 ASHOK MENON, J. -----------------------------------OP(C) No.3259 of 2017 ------------------------------------Dated this the 4[th] day of July, 2018 ## J U D G M E N T The Appellant in an unnumbered Appeal Suit of 2017 is aggrieved by the impugned order of the learned District Judge, Ernakulam, filed against the decree in OS No.1020/2013, directing him to pay additional court fee under the amended provisions of sub-Section (1) of Section 76 of the Kerala Court Fees and Suits Valuation Act, 1959 ('Act', for short). 2. The petitioner herein was the plaintiff in OS No.1020/2013 (Ext.P1) on the file of First Additional Munsiff's Court, Ernakulam for realisation of Rupees Ten lakhs from the defendant therein. The suit was dismissed and the petitioner filed Appeal as Ext.P2. Defect was noticed by the office for the reason that additional court fee has not been remitted at 1% as contemplated under sub-Section (1) of Section 76 of the Act towards Legal Benefit Fund. The matter was placed before the learned District Judge and vide Ext.P3 impugned order, the appellant was directed to pay the requisite court fee within 15 days. The suit is of the year 2013 and it was only by virtue of GO(P) OPC 3259/2017 -2- No.5/2016/Law dated 7.4.2016 that the provision regarding additional court fee for the purpose of Legal Benefit Fund to be collected and credited as contemplated under Section 76(1) of the Act was introduced. It is submitted that the appeal is only a continuation of the suit filed in 2013 and therefore, the learned District Judge was not justified in insisting payment of additional court fee under Section 76(1) of the Act. It is therefore prayed that the impugned Ext.P3 order may be set aside and the appeal may be directed to be numbered and received on the files of the District Court. 3. Vide order dated 11.12.2017, this Court directed the appeal to be numbered provisionally on receipt of court fee payable at the time of institution of the Original Suit. 4. The amended provision to collect additional amount towards Legal Benefit Fund under Section 76(1) of the Act was introduced only on 7.4.2016 by virtue of the Government Order referred to above. The initial contention of the learned counsel appearing for the petitioner before the District Court was that the OPC 3259/2017 -3- Section does not apply to appeals under the Civil Courts Act and the Code of Civil Procedure. GO(P) No.5/2016/Law dated 7.4.2016 reads as follows: “S.R.O.No.315/2016 - In exercise of the powers conferred by sub-section (1) of section 76 of the Kerala Court Fees and Suits Valuation Act, 1959 (10 of 1960) and in supersession of the notification issued under GO(P) No.116/2002/Law dated 5[th] April, 2002 and published as SRO NO.226/2002, in the Kerala Gazette Extraordinary No.420 dated 5[th] April, 2002 the Government of Kerala hereby authorise the levy by the Civil Courts, the tribunals and appellate authorities constituted by or under any special or local law, 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. The notification shall be deemed to have come into force on and from the 1[st] day of April, 2016.” 5. The learned District Judge held that the District Court cannot nullify the Government Order stating that the order is inconsistent with the Kerala Finance Bill, 2016 and therefore, directed the appellant to pay the amount. 6. Heard both sides. OPC 3259/2017 -4- 7. The Honourable Supreme Court in State of Bombay v. Supreme General Films Exchange Ltd. [AIR 1960 SC 980] , held as follows:- “12. It is thus clear that in a long line of decisions approved by this Court and at least in one given by this Court, it has been held 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; it impairs or imperils a substantive right and an enactment which does so is not retrospective unless it says so expressly or by necessary intendment.” This decision has been followed by the Kerala High Court in Raman Kumaran v. Kalikutty Amma Kalliani Amma [1969 KHC 55] , wherein, it was observed that on institution of a suit, the right to appeal on terms and conditions then prevailing vests in the party and cannot be affected by subsequent legislation unless it is retrospective in character. In Usha v. Food Corporation of India [1997 KHC 47] , also relying on the decision of the Honourable Supreme Court, it was held by this Count that the appellant is only liable to pay court fee on the basis of the unamended provision. In Abdulla v. State of Kerala, [2003 KHC 163] , it was considered whether in a land acquisition appeal, the appellant need to pay court fee at an enhanced rate, OPC 3259/2017 -5- consequent to amendment of the Act, and it was held that even in cases when the appeal is filed after the amendment, court fee need be paid only on the basis of the unamended provision. In Suseelakutty Amma v. Sankunny Pillai [2013 KHC 3332] , it was considered whether an application filed by the appellant to withdraw the suit with permission to file a fresh suit under Order XXIII Rule-1, could be allowed at the stage of appeal, and it was observed that the appeal is only a continuation of the suit and the appellate court is also competent to grant permission to withdraw the suit. 8. The Division Bench of this Court in Felix Varghese v. Jaya Sivaraman [2017 (4) KLT 728] , considered whether the petitioner in a rent control petition is liable to pay any additional court fee under Section 76(1) of the Act in the appeal preferred against the order of the Rent Control Court, and relying on State of Bombay v. Supreme General Films Exchange Ltd., Usha (supra) and Abdulla (supra), held that the petitioners are not liable to pay in their appeals, the additional court fee under the amended OPC 3259/2017 -6- provision of Section 76 of the Act, since no such fees was leviable from them when they filed the rent control petitions. The Hon'ble Supreme court had in and earlier decision, Hoosein kasam Dada (India) Ltd v. The State of Madhya Pradesh (1953 SCR 987) held that the appellant has a vested right of appeal, when the original proceedings was initiated and his right to appeal was governed by the law as it stood then. 9. Placing reliance on a catena of decisions, both of the Apex court and of this Court, it has to be held that the learned District Judge was not justified directing the appellant to pay additional court fees as per Section 76(1) of the Act in the impugned Ext.P3 order. The order is therefore, not sustainable and is liable to be set aside, and this petition allowed. I do so. The order of this Court dated 11.12.2017 directing the appeal to be numbered provisionally on accepting the court fee is made absolute. Sd/ASHOK MENON JUDGE jg