U/S. 12 of the Court Fees Act, the Court is requires determination of the amount of fee chargeable on the plaint or memorandum of appeal by the Court in which such plaint or memorandum, as the case may be, is filed, and such decision shall be final as between the parties to the suit. Under sub-section (ii), whenever any such suit comes before a Court of appeal, reference or revision and the Court finds that the issue of court-fees has wrongly been decided, which is causing loss to the revenue, it shall require the party to pay additional fee as would have been payable had the question been rightly decided. Therefore, the first appellate Court u/S. 12 is competent to adjudicate the issue in respect of amount of fee payable in appeal as well as in the suit. U/S. 107(1) of the C.P.C., the appellate Court is required to decide the appeal on merit, but the C.P.C. is a procedural law and the Court Fees Act is a substantive law in respect of payment of Court-fees, therefore, substantive law will prevail over the procedural law, hence u/S. 12 of the Court-fees Act, the first appellate Court has rightly decided the issue in respect of Court-fees.
16. The issue of Court-fees is always liable to be decided as a preliminary issue because the Court-fees is payable at the time of filing of the suit and appeal. In the Court-fees Act, there is a provision of refund of Court-fees paid on the suit as well as on memo of appeal, but there is no provision for payment of Court-fees after adjudication of the suit and the appeal. The Court-fees can be exempted to an indigent person or u/S. 35 of the Court-fees Act for some special categories of plaintiffs, but in all circumstances, the fee is payable in advance and thereafter, the issue of valuation of the suit and payment of Court-fees should be decided as preliminary issue.
IN THE HIGH COURT OF MADHYA PRADESH (INDORE BENCH)
M.P. No. 5417 of 2018
Decided On: 25.02.2019
Hon'ble Judges/Coram:
Vivek Rusia, J.
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