Decided on October 02,1963

Mohammed Bin Salem And Others Appellant
The Central Government Of India And Others Respondents


GOPAL RAO EKBOTE,J. - (1.) This is an appeal filed against a judgment and decree of the Court below. The suit appears to have been dismissed on the ground that the suit is barred by virtue of section-46 of the Evacuee Property Act. The appellant has paid a fixed court-fee of Rs. 10 under Article 30, Schedule II of the Andhra Court Fees Act, 1956. The Office took objection that the appeal is against a decree and therefore ad valorem court fees after proper valuation has to be paid by the appellant. I have therefore to consider as to what court fees is payable in this appeal. It is contended by Mr. M.A. Khader that Article 3 of Schedule II of the Court Fees Act is applicable. I do not think that this argument is correct. That Article applies to Memorandum of appeals from an order. Under that Article an order determining any question under Section-47 or Section-144 of the Code of the Civil Procedure is also included. It is pertinent to note that an order passed under Order 7 Rule 11 CPC has not been specifically mentioned. It is plain that if the Legislature wanted that any order of rejection of plaint which falls under Order 7 Rule 11. is to be included in Article 3 there would not have been any difficulty in including that plainly as orders under section 47 or section 144 C P.C. are expressly included. I do not therefore think that the argument is correct that in view of the Article being an inclusive article, any order similar to one under Section 47 or Section-144 must also be deemed to be included in that Article. It cannot be disputed that the order passed under Order 7 Rule 11 is a decree within the definition of Section-2 of the C.P.C. Section 2 (2) as far as it is relevant states:- "It shall be deemed to include the rejection of a plaint.........."
(2.) The order therefore passed under Order 7 Rule 11 being decree would be appealable as such. I do not think therefore that Article 3 of Schedule II is applicable to this appeal.
(3.) When once this appeal is taken as an appeal against a decree the question naturally arises : what is the Court fee payable on this appeal? It is contended by Mr. M.A. Khader that the subject-matter of the appeal is the question whether in view of Section-46 of the Evacuee Property Act the plaint ought to have been rejected under Order 7 Rule 11. That being the subject-matter ad valorem court fee cannot be claimed from the appellant. In support of this contention he relies upon Vidyudavalli Thayar In Re. 1958-I M.L.J. 97 . That was a case where a CMA, was preferred against an order rejecting the request to sue in froma pauperis. Discussing the various views in regard to the court-fee chargeable under section-52 of the Court Fees Act, 1955 in an appeal against an order rejecting the petition to sue in froma pauperis, Ramaswmi, J. approved of the third view. The third new was that the subject-matter of the appeal is only the right to seek his remedy on the scheme of deferred payment of court-fee. Referring to an earlier decision of the Madras High Court in Kaliappa v. Kandaswami, 1958-I M.L.J. 662 his Lordship said:- "This view no doubt was not approved of in the Bench decision in Kaliappa v. Kandaswami, 1958-I M.L.J. 662. But that was with reference to a case where there was a dispute as to Court-fee and the appellant "?s contention was that he was not at all liable to pay the extra court-fee demanded for the prosecution of the appeal." Distinguishing the said case thus his Lordship observed:- "In this case the petitioner does not contest the liability to pay Court-fee but seeks his remedy in pauper form. Therefore the third view seems to me to be the one which may be adopted in this case.";

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