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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
P.S.Dinesh Kumar, Ramachandra D. Huddar, JJ.
Sri. N B Kumara Swamy S/o Late Balasundar Modaliar - Appellant
Vs.
Raghavendra S/o Ravi Kumar - Respondent
Regular First Appeal No. 47 Of 2020 (DEC/INJ)
Decided On : 01-02-2023
Court Fee - Recall of Order - Karnataka Court Fees and Suits Valuation Act, 1958 - Section 64
Fact of the Case:
The plaintiff filed a suit seeking permanent injunction, later amended the suit for declaration, and was directed to pay a deficit court fee. The plaintiff failed to pay the court fee, and the plaint was rejected. The plaintiff sought to recall the rejection order, but the application was dismissed. The plaintiff appealed, paid the court fee, and sought a refund based on Section 64 of the Karnataka Court Fees and Suits Valuation Act, 1958.
Finding of the Court:
The court found that the plaintiff's financial difficulty in paying the court fee was not denied by the defendant. The court allowed the appeal, set aside the judgment and decree, directed the Trial Court to entertain the suit, and ordered a refund of the court fee paid on the appeal. The plaintiff was also directed to pay a cost to the defendant.
Issues: The main issue was the rejection of the plaint due to non-payment of court fee and the subsequent application for recall of the rejection order.
Ratio Decidendi: The court applied Section 64 of the Karnataka Court Fees and Suits Valuation Act, 1958, which allows for a refund of the court fee paid on appeal when a rejected plaint is ordered to be received. The court also considered the plaintiff's financial difficulty in paying the court fee and the precedent set in a similar case.
Final Decision: The appeal was allowed, the judgment and decree were set aside, and the Trial Court was directed to entertain the suit. A refund of the court fee paid on the appeal was ordered, and the plaintiff was directed to pay a cost to the defendant. The Trial Court was instructed to dispose of the suit expeditiously.
JUDGMENT :
1. Respondent is served with notice of this appeal, but he has remained absent.
2. Appellant, plaintiff in O.S. No.7602/2013 on the file of VII Addl. City Civil Judge, Bengaluru has preferred this appeal feeling aggrieved by the Judgment and Decree dated 21.11.2019 rejecting the plaint and the Order dated 04.01.2020 dismissing the application to recall the Order dated 21.11.2019.
3. The parties to the appeal are referred to as per their rank before the Trial Court for the purpose of convenience.
4. Brief and relevant facts leading to this appeal are as under:
5. Subsequently, during the pendency of the suit, plaintiff filed I.A. No.2 under Order VI Rule 17 read with Section 151 of CPC seeking amendment to the plaint for converting the said suit for declaration by amending para 4(a) and prayer column as mentioned in the application. The said application came to be allowed by the Trial Court on 02.07.2018. Accordingly, plaint was amended. It was directed to the plaintiff to furnish amended plaint and fresh valuation slip. Plaintiff furnished the amended plaint along with fresh valuation slip. Based upon the valuation of the suit schedule property and valuation slip, Trial Court directed the plaintiff to pay the deficit court fee of Rs.1,20,803/- as per the office endorsement dated 26.10.2018. Trial Court has granted sufficient time to the plaintiff to pay the said Court fee on the plaint. But plaintiff has not paid.
6. On 21.11.2019, it is observed by the Trial Court that, sufficient opportunity was given, but even after lapse of one year, plaintiff had not deposited said court fee and the plaint has been rejected.
7. Thereafter, plaintiff filed an application before the Trial Court to recall the order dated 21.11.2019. The Trial Court has dismissed the said application holding that, "there is no scope to recall the order dated 21.11.2019".
8. Plaintiff - appellant has urged that the plaintiff is very poor and was not able to collect the money within the time stipulated by the Court, and hence, he sought time to pay the deficit court fee and the Court has erroneously rejected the plaint; that the Trial Court has not afforded the opportunity to argue the case on recalling application which is illegal, arbitrary and against the principles of natural justice; that the plaintiff took a hand loan from his friends and obtained a Demand Draft on 04.12.2019 in the name of Registrar of City Civil Court, Bengaluru, towards payment of court fee. Along with the application, the plaintiff has produced photocopy of the D.D. Instead of accepting the said D.D., the Trial Court rejected the application. With these submissions, it is prayed to allow the appeal and permit the plaintiff to prosecute the suit by paying deficit court fee.
9. While preferring this appeal, the appellant has paid the court fee required to be paid on the plaint.
10. When this appeal is posted for admission, having regard to the facts of the case, this appeal is taken up for final disposal.
11. We have heard the arguments. Perused the materials placed on record.
12. Undisputed facts are, plaint has been rejected for non payment of Court fee and the application filed by the plaintiff to recall the order of rejection of the plaint has also been rejected as per the Order dated 04.01.2020.
13. Plaintiff has contended that when he moved an application under Section 151 of CPC to recall the order dated 21.11.2019 by borrowing loan from his friends, he obtained D.D. for Rs.1,20,803/- drawn on Federal Bank and submitted a photocopy along with the application. The Trial Court has rejected the said application. It is submitted that if the suit is not restored plaintiff would be put to hardship. Now plaintiff is ready to pay the deficit court fee. It is submitted that, when the plaint
Point of law :Recall of compromise decree - Application for recalling of a compromise decree has to be filed only before the Court that had recorded the compromise in terms of Order XXIII Rule 3(a) o....
Section 70 of the Act comes into play only when there is no adjudicatory process.
Upon remand, an appellant is not required to pay court fees again, as fees deposited in the appeal are sufficient for the original suit.
The main legal point established in the judgment is the importance of deciding the preliminary issues of undervaluation and proper court fee before proceeding with the injunction application and othe....
The Court has the discretion to extend the time for deposit of the court fee, and once the court fee is paid within the extended time, it would be treated as having been paid at the first instance.
The court emphasized the importance of jurisdiction and the limitations on the defendant's right to move superior courts against the order adjudging payment of court-fee payable on the plaint.
Court fee - Court can grant extension of time for payment of the balance court fee beyond a period of 30 days.
Court fees submitted are not refundable if used but can be returned for re-filing in the appropriate court.
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