K.S. Radhakrishnan, J. (Agreeing with A.K. Basheer, J.)
1. This matter has been placed before me in view of the difference of opinion expressed by two learned Judges of this Court in P.V.K.Menon v. Excelads (P) Ltd., 2004 (2) KLT 1130, on the question of court fee payable in the appeal preferred by the defendants as per Explanation 4 of Section 52 of the Court Fees Act.
2. Learned Judge S.Sankarasubban took the view that additional defendants 3 to 9 need pay court fee for the reliefs they prayed for in the appeal though they had not raised any counter claim in the suit. Learned Judge A.K. Basheer on the other hand took the view that additional defendants 3 to 9 have to pay court fee on the subject matter of the suit, Rs. 75 lakhs, since they have not raised any counter claim in the suit on payment of court fee.
3. O.S. No. 479 of 1999 was a suit filed by respondents 1 and 2 herein as against defendants 1 and 2 who are respondents 3 and 4 herein for specific performance of four agreements for sale with all easements and other similar rights appurtenant thereto and also with the proportionate share. In the plaint it is stated that agreements for sale were executed by defendants 1 and 2 on 28.9.1996 for a total consideration of Rs. 75 lakhs. Pursuant to the execution of the agreement plaintiffs were put in possession of the properties. Plaintiffs had availed of cash credit facilities along with defendants 1 and 2 from the Tynampet (Chennai) branch of the Central Bank of India. For that purpose an equitable mortgage was created in respect of the plaint schedule property. Original title deeds of the property and the sale agreements were deposited with the Bank by the plaintiffs and defendants 1 and 2. Later though several requests were made by the plaintiffs to execute the assignment deeds, defendants 1 and 2 had failed to do so and hence plaintiff instituted the suit for a direction to defendants 1 and 2 to effect sale of plaint A, B, C and D properties in favour of the first plaintiff by duly registered deed of conveyance. Alternatively it was also prayed that the defendants may be directed to return to the first plaintiff a sum of Rs. 75 lakhs with interest thereon at the rate of 12% per annum from defendants 1 and 2 charged on the schedule properties.
4. Additional defendants 3 to 9, appellants before us, got themselves impleaded in the suit. Defendants 1 and 2 remained ex parte. Defendants 3 to 9 filed written statement staling that the alleged sale agreements between the plaintiffs and defendants 1 and 2 are fictitious and sham transactions against consideration and were created by the plaintiffs and defendants 1 and 2 to defraud and defeat the interest and claims of the defendants 3 to 9. Defendants 3 to 9 therefore prayed for dismissal of the suit. No counter claim was made by defendants 3 to 9 against the reliefs prayed for in the suit. Plaintiffs have also not raised any relief against defendants 3 to 9. They had sought for relief only against defendants 1 and 2.
5. The Trial Court decreed the suit on 13.6.2003. Operative portion of the decree reads as follows:
'In the result the suit is decreed directing defendants 1 and 2 to execute and register sale deed transferring the plaint A, B, C and D schedule properties in favour of the first plaintiff company or its nominee or nominees within three months from this date failing which first plaintiff company is at liberty to get the sale deed executed and registered in its name or its nominee's name or name of its nominees through the Court at the cost of defendants 1 and 2 with costs'.
Defendants 1 and 2 did not file appeal. Decree passed by the Trial Court would be binding on the plaintiffs and defendants 1 and 2. No relief was sought for against defendants 3 to 9 in the suit. Defendants 3 to 9 had also not raised any counter claim against the plaintiffs. Judgment has become final so far as the plaintiffs and defendants 1 and 2 are concerned.
6. Defendants 3 to 9 have come up with the present appeal seeking to set aside the decree and judgment in O.S.No. 479 of 1999 to the extent of Rs. 20 lakhs worth only of plaint schedule property in the suit. In paragraph 11 of the appeal memorandum it is stated as follows:
'The valuation of the four items of plaint schedule properties, as given in the plaint is Rs. 75 lakhs which is incorrect. Court fee has been paid in the suit for the said amount of Rs. 75 lakhs. The amounts due to the appellants from respondents 3 and 4 would come to more than Rs. 20 lakhs, as per the decrees in the suits O.S.663/96, 533/98, 40/97, 555/98, 102/97, 101/97 and 10/99 mentioned above. The appellants are to realise the said amount from the plaint schedule properties, which belonging to respondents 23 and 4. (D1 and D2 in the suit). However the claim is limited to Rs. 20 lakhs for the purpose of the above appeal and payment of court fee and accordingly court fee is being paid for the said amount. Under such circumstances, the claim is limited to Rs. 20 lakhs, charged on the plaint-schedule properties. Thus the subject matter of the appeal is confined to plaint-schedule property, to the extent of Rs. 20 lakhs which amount the appellants are to get from respondents 3 and 4 (D1 and D2 in suit) and to be realised from the plaint schedule property belonging to them'.
Defendants 3 to 9 had not raised any counter claim against plaintiffs or defendants 1 and 2 and have sought relief for setting aside the decree and judgment which is limited to the extent of Rs. 20 lakhs worth of the plaint schedule property in the suit. Appeal was valued and the full court fee is yet to be paid under Section 52 read with second proviso and Explanation 4 of the Court Fees Act. I may extract the valuation made in the appeal, which is as follows:
Valuation for jurisdiction and court fee is same and is limited to Rs. 20 lakhs.
Valuation for the subject matter of theappeal, which is limited to the extent ofRs. 20 lakhs worth only of plaint scheduleproperty Rs. 20,00,000/-Court fee for the same Rs. 1,23,300/-1/3 court fee paid Rs. 41,000/-(Court fee paid under Section 52 together with second proviso and explanation (4) of the said section of the Court Fees Act.)
Preliminary objection was raised by the counsel appearing for the plaintiffs who are respondents 1 and 2 herein, stating that the court fee paid is insufficient. Counsel Sri. Ullas submitted that defendants 3 to 9 had not raised any counter claim in the suit and therefore they are not entitled to get the benefit of Explanation 4 to Section 52 of the Act. Counsel further submitted that appellants are bound to pay same court fee based on the subject matter of the appeal.
7. Counsel appearing for the appellants, defendants 3 to 9, Sri. M.C.Cherian on the other hand relied on Explanation (4) to Section 52 and contended that while the relief prayed for in the appeal is different from the relief prayed for or refused in the court of first instance, the fee payable in the appeal shall be the fee that would be payable in the court of first instance on the relief prayed for in the appeal.
8. Chapter III of the Court Fees Act deals with determination of fee. Section 10 states that in every suit in which the fee payable under the Act on the plaint depends on the market value of the subject matter of the suit, the plaintiff shall file with the plaint a statement in the prescribed form of particulars of the subject matter of the suit and his valuation thereof unless such particulars and the valuation are contained in the plaint. Chapter IV deals with computation of fee. Fee payable under the Act shall be determined or computed in accordance with the provisions of Chapters IV, VI and IX and Schedules I and II. Section 42 deals with suits for specific performance. Plaintiffs have valued the suit under Section 42 of the Court Fees Act, as follows:
Valuation for the purpose of court feeand jurisdiction for relief (a) Rs. 75,00,000/-(No court fee is chargeable for the alternative reliefs (b) and (c).Court fee to be paid under Section 42, Schedule article of the Kerala CourtFees and Suits Valuation Act in respectof relief (a) Rs. 3,98,300/-1/10 of court fee to be paid at the time of institution of the suit under Section 4A of the Kerala Court Fees Act Rs 39,830/-Balance court fee to be paid Rs 3,58,470/-Plaintiffs have paid the balance court fee as well. Suit was decreed in favour of the plaintiffs as against defendants 1 and 2. Defendants 3 to 9 had not raised any counter claim in the suit. I have already indicated, defendants 3 to 9 have stated that they need pay court fee of Rs. 1,23,000/- for which they have to take shelter under Explanation (4) to Section 52. I may extract Section 52, Explanation (4) for easy reference.
52. Appeals: The fee payable in an appeal shall be the same as the fee that would be payable in the court of first instance on the subject matter of the appeal.
xxx xxx xxxExplanation (4) -- Where the relief prayed for in the appeal different from the relief prayed for or refused in the court of first instance, the fee payable in the appeal shall be the fee that would be payable in the Court of first instance on the relief prayed for in the appeal.
9. The only question to be considered is whether defendants 3 to 9 can take shelter under Explanation (4) to Section 52 of the Court Fees Act without seeking any relief in the suit either against the plaintiffs or against defendants 1 and 2 and thereby defeat the decree obtained by the plaintiffs against defendants 1 and 2 to the extent prayed for in the appeal. I am of the view, Explanation (4) would apply only in a case where party has prayed for some relief in the court of first instance. In order to get the benefit of Explanation (4) party has to show that he had prayed for some relief in the court of first instance after paying court fee and that relief either can be granted or rejected. He must further show that the reliefs sought for in the appeal is different from the relief that he had prayed for in the suit. If the above mentioned two conditions are satisfied, even if he seeks a different relief in the appeal, different from the relief that he has sought for in the court of first instance, then he need pay court fee for the relief prayed for in the appeal and the Court fee that would be payable in the court of first instance for the relief he has prayed for in the appeal.
10. I am of the view, defendants 3 to 9 have failed to satisfy the above mentioned tests so as to take shelter under Explanation (4) to Section 52 of the Act. Appellants had not prayed for any relief and paid court fee in the court of first instance. For the first time in the appeal they are seeking relief as against the plaintiffs and defendants 1 and 2 without paying any court fee for the said relief or any other relief in the court of first instance. Suit has not been decreed against defendants 3 to 9 and therefore, there is no question of filing any appeal by defendants 3 to 9 against plaintiffs or against defendants 1 and 2. If the suit was dismissed, defendants 3 to 9 would not have and could not have filed any appeal since no relief was sought for in the suit. Defendants 3 to 9 are for the first time seeking relief against plaintiffs and defendants 1 and 2 for which they should file a proper suit against them or would have filed a counter claim in the suit paying proper court fee.
11. In view of the above mentioned reasoning I am of the view, if defendants 3 to 9 are intending to prosecute the appeal they should pay court fee that would be payable in the court of first instance on the subject matter of the appeal. That means they have to pay court fee which was paid by the plaintiffs in the suit. I am therefore in agreement with the view expressed by Justice A.K.Basheer. Reference is answered accordingly.