The interpretation of the terms 'petition' and 'application' in the context of court fees and the distinction between 'original' petitions and applications not otherwise provided for are crucial in determining the applicable court fee.

ORDER :

P.T. Raman Nayar, J.

1. The question is whether an application under section 460(6) of the Companies Act-these particular applications are by way of Judge's summons under rules 164, 168 and 177 of the Companies (Court) Rules-falls within clause (l) (iii) of article 11 of Schedule II of the Kerala Court Fees and Suits Valuation Act, 1959 (for short, the Act), "Original petitions, not otherwise provided for, when filed in the High Court: Twenty rupees" or within clause (t), "Application or petition presented to the High Court and not otherwise specifically provided for : Two rupees. "

2. The words " petition " and " application " mean much the same thing-see Subhan Khan v. Mohamed Eusoof A.I.R. 1938 Rangoon 141 at p. 143 excepting perhaps that the use of the word, " petition " is normally confined to a prayer in writing whereas the word, " application " would cover oral prayers as well. The very provision of the Court Fees Act which we are considering, namely, article 11 of Schedule II see clause (t)-uses the two words as synonymous-see also section 72 (x) of the Act-and, although this might not be a very material consideration in construing a Court Fees enactment which applies to all manner of proceedings, so does the Companies Act-see for example section 439 which says that an application for winding-up shall be by petition and section 191 which says that a company may apply by petition-as also the Companies (Court) Rules, rule 11 of which speaks of applications being made by petition. The real distinction between clause (l) and clause (t) of the article lies not in the use of the word, "petition" in the former but of the word, "original". To come within clause (l), the proceeding, be it called a petition or an application, must be original. If it is not original, then it would fall within the residuary clause, clause (t), as a mere application or petition not otherwise provided for-

3. The term, " original petition" has not been defined in the Act, or in the Interpretation and General Clauses Act, or in the Code of Civil Procedure, the definitions in which are attracted by section 3 (iv) of the Act. But the expression is defined in the Civil Rules of Practice, both of Madras and Travancore-Cochin which govern proceedings in the subordinate civil courts of this State and which were in force when the Act was made. The provisions of the Act are, it is true, by no means confined to proceedings in the subordinate civil courts, but the bulk of the proceedings for which it provides are taken before those courts, and it is therefore safe to assume that, in the absence of a definition in the Act itself or in the Interpretation and General Clauses Act, or in the Code of Civil Procedure, the Act uses the term, '' original petition " in the sense in which it is defined by the Civil Rules of Practice which is the sense in which it is understood in the courts. The Civil Rules of Practice, both Madras and Travancore-Cochin, define "original petition" thus:

“Original petition ' means a petition whereby any proceeding other than a suit or appeal or a proceeding in execution of a decree or order, is instituted in a Court."

This also seems to me the natural meaning of the term as something originating a proceeding in the Court, in other words, instituting it. The expression is used in contradistinction with applications or petitions in a proceeding already instituted, usually, but not necessarily, a pending proceeding-no one would dream of calling these, " originating ", per Kay, L.J. in In re Holloway (A Solicitor). Ex parte Pallister (1894) 2 Q.B; 163 at p. 169.,-interlocutory applications, as the Civil Rules of Practice calls them. This is how these rules define the term, " interlocutory application" :

"Interlocutory application ' means an application to the Court in any suit, appeal or proceeding already instituted in such Court other than a proceeding for execution of a decree or order."

No doubt an interlocutory application institutes th