IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 26TH NOVEMBER 2010 / 5TH AGRAHAYANA 1932 OP(C).No. 347 of 2010(O) ------------------------ AS.25/2010 of SUB COURT, CHENGANNUR OS NO.218/2006 OF MUNSIFF COURT, CHENGANNUR .................... PETITIONER ------------------------------ AJI KUMAR, AGED 40 YEARS, S/O.CHELLAPPAN PILLAI, KUTTIMALAYIL VEETTIL, PULIYOOR MURI, PULIYOOR VILLAGE, CHENGANNUR TALUK. BY ADV. SRI.N.ASHOK KUMAR RESPONDENT(S): --------------- 1. RAMACHANDRAN PILLAI, S/O.PADMANABHA PILLAI, PRADEEP BHAVAN, PULIYOOR MURI, PULIYOOR VILLAGE, CHENGANNUR TALUK, PIN - 689 504. 2. NAGESH KUMAR, S/O.DAMODARA KURUP, KUNNIKALICKAL VEEDU, PULIYOOR MURI, PULIYOOR VILLAGE, CHENGANNUR TALUK, PIN - 689 504. ADV. SRI.P.HARIDAS FOR R1 SMT.S.SIKKY FOR R1 SRI.R.GIREESH VARMA FOR R2 THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 26/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO.347/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF MEMORANDUM OF APPEAL IN AS NO.25/2010 OF SUB COURT, CHENGANNUR EXT.P2 TRUE COPY OF THE DECREE IN OS 218/2006 OF MUNSIFF COURT, CHENGANNUR EXT.P3 TRUE COPY OF ORDER DATED 13.9.2010 IN AS 25/2010 OF SUB COURT, CHENGANNUR //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.347 of 2010 -------------------------------------- Dated this the 26th day of November, 2010. JUDGMENT The issue raised in this petition is regarding court fee payable on the appeal preferred by the petitioner against the decree against him. Respondent No.1 filed O.S.No.218 of 2006 in the court of learned Munsiff, Chengannur seeking recovery of damages to the tune of `.30,381/-, for fixation of boundary and prohibitory injunction. Prayer for fixation of boundary and injunction was granted but in respect of claim for damages a decree was granted to the tune of `.8,381/-. Petitioner challenged judgment and decree against him. Learned Sub Judge passed the impugned order (Ext.P3) holding that in view of explanation to Section 52 of the Kerala Court Fees and Suits Valuation Act (for short, “the Act”) petitioner is liable to pay court fee on the entire sum of `.30,381/- since that is the subject matter of the suit and the appeal. Learned counsel for petitioner contends that the view taken by learned Sub Judge is not correct and that so far as Section 52 of the Act is concerned what is relevant for the purpose of valuation of court fee in appeal is subject matter of the appeal which need not be the same as subject matter of the suit. Learned counsel has placed reliance on a Full Bench decision of this Court in Scaria Joseph v. Mathai George (1974 KLT 721). Learned counsel for respondents contend that in view of explanation (1) to Section 52 of the Act petitioner is liable to pay court fee on the relief claimed in the suit. OP(C) No.347/2010 2 2. Section 52 of the Act states that 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”. Explanation (1) states that whether the appeal is against refusal of a relief or against grant of a relief fee payable in the appeal shall be the same as the fee that would be payable on the relief in the court of first instance. Here, appeal is preferred by the defendants in the suit. They are aggrieved so far as the decree for damages is concerned to the extent court below awarded `.8,381/-. Then the question is whether going by Section 52 of the Act what is the subject matter of the appeal. The Full Bench in Scaria Joseph v. Mathai George (supra) has stated in paragraph No.9 that where the subject matter in the appeal coincides with the subject matter in the suit, value of appeal for the purpose of court fee will be the same as that of suit. But if the subject matter in appeal relates only to a portion or part of the suit claim, then that portion will have to be separately valued and court fee paid on the same. The issue came up for consideration before a Division Bench of this Court in P.U.K.Menon v. Excelads (P) Ltd. (2004 (3) KLT 1130) where there was a split verdict on the issue. A.K.Basheer, J. held that under normal circumstances subject matter of the appeal might be the same as it was shown in the suit. But it is always open to the appellant in an appeal to give up a portion of his claim and to restrict it. It is further open to him unless the relief is of such a nature that it cannot be split up to relinquish a part of the claim and to bring it within the amount of court fee already paid. That was a case where some of the additional defendants challenged entire decree to the extent it OP(C) No.347/2010 3 concerned their share in the suit property. Learned Judge observed that the claim cannot be bifurcated and hence the party is liable to pay court fee for entire subject matter as valued in the trial court. But the learned Judge pointed out that in appropriate cases it was open to the appellant to give up a portion of the claim and restrict the claim. In view of the split verdict matter was referred to a third Judge. Decision of the third Judge is reported in P.V.K.Menon v. Excelads (P) Ltd (2005(1) KLT 995) where agreeing with A.K.Basheer, J. it was held that appellants in that case in order to apply explanation (4) to Section 52 of the Act must show that relief sought for in the appeal is different from the relief that was prayed for in the suit. Another decision which throws light on the issue is Veebros Freight Carriers v. Eshita Agency (2004 (2) KLT 666) where appeal was at the instance of the defendant. Question arose whether he is liable to pay court fee for interest pendente lite on the amount of decree. Question was answered in the affirmative. 3. It is therefore clear that subject matter as valued in the plaint need not be the subject matter in the appeal. That is why Section 52 of the Act states that 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”. Here subject matter of the appeal so far as the dispute regarding liability to pay damages is concerned, is only `.8,381/- and if that be so, court fee payable so far as that part of the subject matter of the appeal is only on the sum of `.8,381/- OP(C) No.347/2010 4 and the fee payable is such fee as would have been payable for the said amount in the trial court. I am inclined to take the view that petitioner is liable to pay court fees so far as challenge to the decree to the extent it concerned damages is only on the sum of `.8,381/- and the interest if any allowed thereon and cost payable. Resultantly this petition is allowed and the impugned order is set aside holding that liability of petitioner to pay court fee so far as the appeal to the extent it concerned challenge to the award of damages is only on the sum of `.8,381 together with interest and cost if any payable under the decree on the said amount. THOMAS P.JOSEPH, Judge. cks