Point of Law: Question to be decided in such an appeal was only the propriety of the order of the trial court rejecting the plaint for want of payment of the balance court fees within the permitted time

ORDER :

Ajithkumar, J.

The Registry raised an objection that the valuation of the appeal for the purpose of court fees and the court fees levied and paid as provided under Article 3(iii)(A)(1) of Schedule II to the Kerala Court Fees and Suit Valuation Act, 1959 is wrong. The Registry took the stand that the suit having been dismissed on answering one of the issues framed by the court, the appeal should be valued and court fees paid as provided under Section 52 of the Act. That is to say on ad valorem.

2. The submission of the learned counsel appearing for the appellant is that the remedy of the appellant in the matter is as provided under Section 96 of the Code of Civil Procedure, 1908. However, in the absence of any adjudication of the dispute involved in the suit, whereas it was dismissed on answering a preliminary issue regarding maintainability alone, payment of court fees ad valorem is not required. In that regard, the learned counsel placed reliance on Beena K.G. v. Keshavam [2016 (3) KLT 117].

3. Heard the learned counsel appearing for the appellant.

4. This appeal is filed against the judgment dated 30.07.2021 in O.S.No.2014 of the Principal Sub Court, Kollam. The suit was filed for specific performance or in the alternative for a refund of advance sale consideration. Defendants-respondents filed a written statement refuting the plaint claim. As many as six issues were raised based on the rival pleadings. It is seen that on the request of the respondents-defendants, an additional issue regarding the maintainability of the suit was framed and the same was heard as a preliminary issue. The Sub Court answered the issue against the appellant whereupon the suit was dismissed as not maintainable. It is that judgment that is under challenge in this appeal.

5. Order XIV, Rule 2 of the Code enables a court to try an issue only, if the court is of opinion that the case or any part thereof may be disposed of by answering that issue. In order to try one of the issues as a preliminary question, that issue should be one relating to the jurisdiction of the Court or a bar to the suit created by any law for the time being in force. The Sub Court framed additional issue No.7 that, was not the suit maintainable? That the Court had considered that issue as a preliminary one cannot be found fault with. Whether or not the view taken by the Sub Court while answering the issue is question does not fall for consideration at present.

6. In Beena K.G, a Division Bench of this Court considered the question, whether ad valorem court fees is required to be paid when an appeal is filed challenging the order of the court below rejecting a plaint in a suit for specific performance for want of payment of balance court fees or whether fixed court fees as per Article 3(iii)(A)(1) of Schedule II to the Court Fees Act is enough. In view of the provisions of Section 2(2) of the Code, an order rejecting a plaint is deemed to be a decree. In view of that matter, a doubt was entertained; while filing an appeal challenging such a deemed decree, should ad valorem court fees be paid in the appeal?

7. In Beena K.G, the court held that the subject matter of the appeal was not about granting or not of a decree for specific performance of the contract. The subject matter of the appeal on the other hand was about the propriety of the trial court in rejecting the plaint for the non–payment of the balance court-fee within the time permitted. There is a deemed decree in terms of Section 2(2) of the Code on account of the rejection of the plaint without there having any adjudication on merits. The same does not however preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action as evident by Order VII Rule 13 of the Code. The further fact that the court fees already paid on the plaint which has been rejected is liable to be refunded in terms of Section 66 of the Court Fees Act was also considered as a reinforcing aspect for the conclusion. The app