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Baby Finance & Investments P. Ltd. & Another v/s Jayashree Srinivasamurthy & Another

    C.R.P.No.801 of 1998 & C.M.P.No.4330 of 1998

    Decided On, 20 July 1998

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE V. KANAGARAJ

    For the Petitioners: S.C. Shah, for M/s. Shah & Shah, Advocates.



Judgment Text

1. This civil revision petition is directed against the fair and decretal order dated 16.12.1997 made in O.S.SR.No. 11911 of 1996 by the Court of VI Additional Judge, incharge of VII Additional Judge, City Civil Court, Madras thereby directing the petitioners to pay the additional court fee on the suit filed by the petitioners herein.

2. The petitioners presented their suit before the High Court, Madras, affixing the court-fee as required under the Rules of the High Court, Madras, Original Side, 1956 and the same had been returned for certain compliance. But prior to re-presenting the same, the Tamil Nadu Civil Courts Act (Act 28 of 1995) got introduced thereby enhancing the pecuniary jurisdiction of the City Civil Court as a result of which the High Court not only transferred all such suits on account of conferment of jurisdiction on the City Civil Court by operation of law but also directed the petitioners to present their suit before the City Civil Court, when the said suit of the petitioners got re-presented before the High Court a second time and hence the petitioners presented their suit before the jurisdiction court that is the Seventh Additional Judge, City Civil Court, Madras, and the said court in its impugned order directed the petitioners to pay the additional court-fee as per Sec.22 of the Court Fees and Suits Valuation Act, 1955, contending thereby that 'this suit was filed in the High court and returned to this court as per Act 28 of 1995. Thereafter, this suit is filed in this Court. It is argued on the part of the plaintiff that the court-fee paid on the plaint in the High Court would be sufficient. In support thereof, the decision rendered in S.R.Narayana Ayyar v. Mavalathapa Veerankutti S.R.Narayana Ayyar v. Mavalathapa Veerankutti S.R.Narayana Ayyar v. Mavalathapa Veerankutti, (1958)1 MLJ. 264 wascited and argued. Whether the plaint of the plaintiffs and the decision cited have to be accepted, it would be found that the suit is not numbered and transferred to this Court. If the suit is so numbered and transferred to this Court, then the arguments of the plaintiffs would be an acceptable one. But this Court determines that when the suit was not numbered and sent to this Court, court-fee should be paid on the amount claimed in the plaint under Sec.22 of the Court-Fees Act. In the result, it is ordered that additional court-fee should be paid by the plaintiff and a month's time is granted to pay the same.'

3. Aggrieved against the said order passed by the VII Additional Judge, City Civil Court, Madras, the petitioners have come forward to file the above civil revision petition on grounds as offered in the memorandum of civil revision petition such as:

(i) that the order directing to pay the additional court-fee is illegal, improper and is fraught with material irregularity and is vitiated by failure to interpret the law properly and to appreciate the effect of the presentation of the plaint before the given forum in its proper perspective; (ii) that the learned judge having appreciated the decision relied upon by the plaintiff to be appropriate has made a distinction between a suit numbered and a suit yet to be numbered directing the additional court-fee to be paid; (iii) that the court below has failed to see that once the plaint is 'presented', the suit is 'instituted' and thence it ‘is transferred to the City Civil Court only by virtue of the provision of the Act, which enhanced the pecuniary jurisdiction of the City Civil Court; (iv) that the court below is wrong in its thinking that the return of the plaint to present it to the proper court does not amount to transfer under the Act in the present case; (v) that the court below has lost sight of the fact that originally when the plaint was presented, the High Court alone had jurisdiction pecuniarily and after assigning diary number, the High Court returned the same for certain compliances and when the second representation was made, the Registry of the High Court directed the plaint to be presented to the City Civil Court, but that is only in the nature of transfer and not in the nature of an order directing the party to present the plaint before the jurisdiction court, though it had been wrongly presented before the High Court at the time of its first presentation and that being so, the decision cited would fully apply to the facts and circumstances of the case; (vi) that the lower court has failed to see that the direction given by the Registry at the time of second presentation directing the party to present it before the City Civil Court was only by virtue of the powers of the High Court got conferred under the Act enhancing the jurisdiction of the City Civil Court. Consequently, amounting to transfer of suits since for the High Court became bereft of pecuniary jurisdiction as it had been with the lower court at the time of its original presentation; (vii) that the court below has further failed to note that the suit is to be taken to have been instituted on the date when the plaint is presented. The subsequent formalities to be complied with giving the SR.Number are only ministerial acts which are only aspects of administrative coincidence. With the above grounds offered and such of those brought forth in the arguments the plaintiff would ultimately pray to set-aside the order dated 16.12.1997 made by the City Civil Court, Madras, further directing the said court to number the suit in accordance with law without insisting for the additional court-fee.

4. During the arguments, the learned counsel for the petitioners Mr.S.C.Shah, of M/s.Shah and Shah appearing for the petitioners would contend that prior to the advent of the Act 28 of 1995, the above suit had been initiated before the High Court and by operation of law on account of the introduction of the new Act, the suit had been transferred to the City Civil Court and in such circumstances no difference of court-fee need be paid. In support of his argument, he would cite the decision of a Division Bench of this Court reported in S.R.Narayana Ayyar v. Mavalathara Veerankutti and others S.R.Narayana Ayyar v. Mavalathara Veerankutti and others S.R.Narayana Ayyar v. Mavalathara Veerankutti and others, (1958)1 MLJ. 264 at268.

5. The learned counsel for the petitioners would further contend that the required court-fee had already been paid on the plaint at the time the suit was instituted before the High Court having jurisdiction to try the same then and when the same got transferred to the City Civil Court an ad valorem fee at 7 1/2% is directed to be paid and since the suit had been instituted prior to the advent of the Act 28 of 1995 and got transferred by operation of law, the City Civil Court cannot direct the petitioners for the additional court-fee to be paid.

6. The learned counsel would further contend that when the transfer of jurisdiction takes place, the Registry of the High court only packs up the bundles and transfer them to the court to which the jurisdiction is conferred by law. Such transfer could take place in two sets of cases pending before the High Court; (i) the suits which have been numbered on the date when the Act comes into force and (ii) the suits which are waiting to be numbered when the Act comes into force. According to the first category, no additional court fee is demanded. But for the second category of the pending suits, the additional court-fee is directed to be paid. Even an unnumbered suit is a suit pending as per O.1, Rule 4(16) of the Original Side Rules 1956, which defines the term suit as 'Suit means all proceedings commenced by the filing of a plaint.' Drawing the attention of the court to the provision contained in O.2, Rule 1, of the Original Side Rules, which reads, 'a suit shall be commenced by presenting a plaint to the court or such officer as the Chief Justice appoints in this behalf, the learned counsel would further contend that these orders sufficiently indicate that on the presentation of the plaint, the suit is commenced and to say that it has not commenced since it is not numbered and directing the party to pay the different of court-fee is wrong and cannot be done.

7. The learned senior counsel would also further argue that in the light of the above provisions of the order the subject matter should not be treated in the sense of ‘physical’ disposal of bundles; but in the sense of ‘transfer of jurisdiction from the High Court to that of the City Civil Court’. The High Court has no jurisdiction to number it on account of the operation of the new legislation and hence the transfer takes place sending the bundle. It is irrelevant whether the bundles are sent by the ministerial section or presented in the office through the counsel. Neither under Sec.24 of the C.P.C. nor under the Letters Patent these transfers are governed but by the new legislation coming into existence.

8. Citing two judgments, the first one reported in The Secretary of State of India in council represented by the Collector of South Arcot v. Tripura Sundarammal and another The Secretary of State of India in council represented by the Collector of South Arcot v. Tripura Sundarammal and another The Secretary of State of India in council represented by the Collector of South Arcot v. Tripura Sundarammal and another, 50 MLJ. 280 and the second one reported in S.R.Narayana Ayyar v. Mavalathara Veerankutti and others S.R.Narayana Ayyar v. Mavalathara Veerankutti and others S.R.Narayana Ayyar v. Mavalathara Veerankutti and others, (1958)1 MLJ. 264. the learned counsel for the petitioner would argue that both the above decisionsof the Division’ Benches of this Court have held that the City Civil Court directing the levy of additional court-fee on the plaint is not sustainable.

9. In the first case cited above, the facts are that subsequent to the institution of a suit informa pauperis, the Court-Fees Act was amended and the amended Act came into force prior to the passing of the decree. It was hold that 'the amount of court-fee payable under O.33, Rule 10 is the amount calculated as on the date when the plaint was filed and not on the date of the passing of the decree.'

10. In the second case cited above, the Division Bench of this Court after wide discussions has held that 'the order of the learned City Civil Judge directing the levy of additional court-fee on the plaints is not sustainable. The order is therefore set aside and the trial of the suits will be proceeded with accordance to law.'

11. The Division Bench dealing with Sec.8 of the Madras Act X of 1955 has, further held that 'regarding the transfer of suits from the original side to the City Civil Court, the question that it could not be brought within the scope of the word received’ occurring in Sec.6 of the Court-Fees Act 7 of 1870, that in the absence of specific provision of such levy in consequence of transfer of suit under Sec. 8 of the Madras Act X of 1955, no additional court-fee can be levied.

12. Sec. 8 of the Madras Act X of 1955 enacted transitory provision contending that 'all suits pending in the High Court on the date of the commencement of this Act and which would be within the cognizance of the Madras City Civil Court under the provisions of this Act shall stand transferred to the Madras City Civil Court.'

By a further amending Act, Madras Act XXIX of 1955, this transitory provision was amended to read 'all suits pending in the High court on the date of the commencement of this Act and which would be within the cognizance of the Madras City Civil Court under the provisions of the said Act shall, as amended by this Act stand transferred to the Madras City Civil Court.'

13. The Division Bench of this Court in dealing with the above subject would contend that 'after such transfer, a question arose as to whether additional court-fee should be paid oh the suit so transferred and which were pending trial before that court.' After hearing the parties in the above said matter the learned principal City Civil Judge passed order holding that the plaintiffs should pay the additional court-fee based on the decisions reported in (1) Ragunath Ganesh v. Vaman Vasudeo, A.I.R. 1950 Bom. 234. (2) Official Assignee, Madras v. Ranganathan, (1951)2 MLJ. 93 and (3) Ramamirthan v. Rama Film Service, (1951)2 MLJ. 121. Further the Division Bench of this Court in consideration of the question in the light of thevarious decisions including the above mentioned cases, further observed:

'No doubt, when a transfer is made from one court to another, there is the receiving court, and there is also the court that sends the plaint or the suit records to the other court; but the question is whether the term ‘received’ used in this section could be strained to such an extent as to include within its meaning plaints and suit records that are automatically and statutorily transferred from one court to another without the intervention of any act on the part of any court or the parties concerned. We doubt whether such a situation could have been contemplated by the Legislature. If it was, however, the intention of the Legislature when it enacted Act X of 1955 that on such statutory transfer also additional court-fee should be levied, then nothing could have prevented the Legislature to provide for such levy of additional court-fee when a statutory transfer of suits was being effected, it being remembered such a provision was actually enacted, under proviso (3) to Sec.16 of Act VII of 1892, When the Legislature did not choose to provide for such a levy of additional court-fee, when such a provision was omitted to be made and when it is not possible to enlarge the scope of the word ‘received’, used in Sec.6 of the Court-Fees Act of 1870, the application of which is saved by Sec.87(2) of Act XIV of 1955, and when the levy of additional court-fee is a fiscal act, the benefit of the lack of a provision for the levy of the such fee, cannot be claimed by the State. Obviously the benefit must go to the party in the absence of any specific provision for such a levy in consequence of the transfers of suits effected under the operation of Sec.8 of the Act X of 1955.'

14. In the light of the above definitions and judicial pronouncements if the question raised in the above matter is further assessed, Sec.4 of Act 28 of 1995 states that all suits pending in the High Court as on 1.12.1995 the cognizance of which falls within the pecuniary jurisdiction of the Madras City Civil Court as amended by the said Act shall stand transferred to the Madras City Civil Court.

15. The question that falls for consideration is whether in such transferred unnumbered suits additional court-fee is payable by the plaintiffě As far as the numbered, suits are concerned the question of payment of additional court in the transferred court does not arise on the plain reading Sec.4 of the Act 28 of 1995 which is also not the subject-matter for consideration.

16. A reference to Sec.26 of Civil Procedure Code shows that every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. As such presentation of plaint is tantamount to institution of suit. The same language is almost employed under Sec.3(2)(a)(i) of the Limitation Act according to which a suit is instituted in an ordinary case, when the plaint is presented to the proper officer. This provision of law is nevertheless more important in the sense that it mandates the dismissal of the suit if the suit is instituted after the prescribed period of limitation. The institution of the suit is none other then presentation of the plaint videSec.26 of the Civil Procedure Code. This appears to be more assertive in the light of Sec.3(2)(a)(i) of the Limitation Act. A petition to condone the delay in payment of insufficient court-fee relates back to the date of presentation of the plaint. It is to be seen as to what is the true and workable meaning for the words suits pending in the High Court in Sec.4 of the Act 28 of 1995.

17. A meaningful interpretation of the word ‘suits’ in the context of statutory operation of the said provision of law in relation to its applicability as far as it relates to unnumbered suits should alone be given which requires that the word ‘suits’ should not be given a narrow and restricted meaning and the said word in its wider amplitude must be tested as to whether this would mean and include unnumbered suits pending in the High Court. A suit is nothing but a legal proceeding or legal action which is said to be pending when it remains undecided, unsettled, unsolved etc. In other words, the cause remains pending and it may also be stated that the matter is not concluded. Viewed from another angle, when the suit was presented into the registry of the High Court, it was done in a competent court of law in acc

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ordance with the law as it was at that point of time, not yet numbered, in other words the filing of the suit by putting up the file among the records of the court has not taken as it is only in the state of the suit having been presented before the Registry of the court. This subtle difference of presentation of the suit or filing of the suit as explained above does not make a difference at all when the suits stand transferred to the City Civil Court by operation of law. It is altogether a different situation if such transfer is effected at the instance of the party or by the order of the court. When such transfer is effected by the operation of law as explained in Bench decision of this Court reported in S.R.Narayana Ayyar v. Mavalathapa Veerankutti S.R.Narayana Ayyar v. Mavalathapa Veerankutti S.R.Narayana Ayyar v. Mavalathapa Veerankutti (1958)1 MLJ. 264wherein the same question of law was canvassed and decided holding that the question of payment of additional court-fee does not arise on such transfers. It is to be seen that the language couched in Sec. 8 of Act 29 of 1955 is in pari materia with that of the Sec.4 of Act 28 of 1995. No other decision contra to the point decided in (1958)1 MLJ. 264 was brought to my knowledge, which binds me. 18. The sum total of the above discussions held on the question whether in the circumstances of the case, the City Civil Court, Madras is right or competent enough to direct the petitioners to pay the additional court-fees on the suit filed by the petitioners is to be answered, it could only be answered in the negative. 19. In result, the above civil revision petition is allowed, setting aside the order and decretal order passed by the Court of VI Additional Judge, in charge of VII Additional Judge, City Civil Court Madras in O.S.SR.No.11911 of 1996 dated 16.12.1997. Consequently, C.M.P.No.4330 of 1998 is closed.
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