Decided on June 16,1967



- (1.) Where, as in this case, a plaint is rejected under O.7 R.11(b) of the Code there is no adjudication whatsoever regarding the subject matter of the suit. The only adjudication is as to whether or not the relief claimed is undervalued, and, in an appeal from the rejection, "the subject matter of the appeal" within the meaning of S.52 of the Kerala Court Fees and Suits Valuation Act, or "the subject matter in dispute" within the meaning of Art.1 of schedule I is the undervaluation found, not the subject matter of the suit. (See Kalliappa v. Kandaswmi AIR 1938 Mad. 498 and Apparao Shesharo v. Mt. Bhagubai AIR 1949 Nag. 1 (F.B.) with which I am in respectful agreement). Where the order appealed against determines the amount of the under-valuation, court fee will doubtless be payable on that amount under Art.1 of Schedule I of the Court Fees Act, 1870 in cases to which that Act applies as held in the decisions referred to above since that would be the amount or value of the subject matter in dispute in the appeal. And, where the amount of the undervaluation has not been determined, perhaps Art.17 of Schedule I would apply. But this case, as I have indicated, is governed by the Kerala Court Fees and Suits Valuation Act. Where the amount of the undervaluation has been determined it would appear that Art.1 of Schedule I would directly apply without recourse to S.52. (It seems to me, however, that the words, "memorandum of appeal" in the article are an unintended surplusage having regard to the provision in the section that the fee in an appeal shall be the same as that payable in the court first instance on the subject matter of the appeal, the article being copied from the old article without advertence to specific provisions made in the Act another example of this is that the article provides for a written statement pleading a set off or counter claim notwithstanding the provision in S.8 that these shall be chargeable with fee in the same manner as a plaint). But here the amount of the undervaluation has not been determined; therefore the subject matter of the dispute in the appeal is not capable of valuation; and hence Art.1 of Schedule I cannot apply. Art.3 (iii) A (1) would apply if the context can be regarded as requiring the word, "order', appearing in that article to be read otherwise than as defined in S.2 (14) of the Civil Procedure Code see in this connection S.3 (iv) of the Act and as including orders like the present coming within the definition of, "decree" in S.2 (2). That the word, "order" in the article has not the same meaning as attributed to it by S.2 (14) of the Code is apparent from the fact that the article expressly includes within the scope of the word, orders under S.47 and 144 of the Code which are decrees and therefore not orders within the meaning of the Code. The difficulty in applying S.52 of the Act to a case like the present is that it obviously contemplates a proceeding in the court of first instance in respect of the subject matter of the appeal. But there can be no proceeding instituted in the court of first instance, whether by way of suit, petition, or application, for adjudication on the subject matter of this appeal, namely, the adequacy of the court fee paid, and, naturally enough, no provision is made either in the body of the Act, or in the Schedules, for the court fee payable in the court of first instance in such a proceeding. But, if the section were to be read as meaning that the fee payable would be that payable in the court of first instance if a suit were brought for the same relief, the matter would fall within S.25 (d) (H) or S.50 (iii) read with Art.1 of Schedule I
(2.) In any view of the matter, the court fee of Rs. 237-50 paid on the memorandum of appeal is more than sufficient, and, reviewing the order of the Taxing Officer who held that court fee was payable on the value of the subject matter of the suit, I hold that the court fee properly payable has been paid in this appeal.;

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