TMI Blog1993 (9) TMI 364X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant filed an application under Section 18 of the Land Acquisition Act, 1894 (the Act for short) for reference of the matter to the Civil Court for determination. The learned Civil Judge on receipt of the reference application held an enquiry and proceeded to award compensation in a sum of ₹ 40,000/- per acre. This award was the subject matter of Appeal in M.F.A.No. 997 of 1982 filed by the State before this Court and this Court allowed the Appeal, set aside the judgment and award and remitted the matter for reconsideration. Thereafter, the learned Civil Judge, after providing opportunity to both the parties of being heard, reconsidered the evidence on record and proceeded to pass the judgment and award under Appeal awarding compensation of ₹ 4,500/- per acre plus 15% solatium and interest at 5% per annum on the enhanced compensation. Hence this Appeal by the owner of the land. 4. Sri Kothavale, learned Counsel for the appellant, having taken us through the findings and the reasons given by the learned Civil Judge for awarding the compensation as aforesaid argued: (i) that the reliance placed by the learned Civil Judge on Ex.R1, a certified copy of the sale deed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... situated within the Municipal limits of Athani and close to the Inspection Bungalow of Athani Town where a combined Court of Munsiff J.M.F.C., is functioning. Nextly, in the course of the discussion of the evidence on record, the learned Civil Judge has observed that there is no acceptable evidence to hold that as on the date of the preliminary notification the property had any potential value for house sites, but in the next breath he records a finding in the very paragraph that it is no doubt true that even on the date of acquisition, the Inspection Bungalow was situated close to the land acquired. These observations of the learned Civil Judge make it clear that the land though being a bagayath land raising dry crops as on the date of the acquisition, had the potential of being formed into building sites having regard to the location. Therefore, we have to conclude that the land in question had certainly potential for non-agricultural purpose and hence we have to consider its value accordingly for the purpose of awarding just compensation. 8. Among the several documents produced, what may be relevant is Ex.R-13, a certified copy of the sale deed dated 26.5.1980, It is seen t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in the award in question. 11. Thus viewed from these circumstances and considering the submissions made by the learned Counsel for the appellant, we are of the view that the proper valuation to the land in the instant case would be ₹ 15,000/- per acre instead of ₹ 4,500/- per acre awarded by the Reference Court. 12. At this stage, the question that arises for consideration is whether the appellant is liable to pay the Court fee and if so, how much. 13. Sri D'Sa, learned Government Advocate appearing for the State, submitted that the appellant having succeeded partly in the appeal presented in forma pauperis was liable to pay the requisite. Court fee as provided under the Karnataka Court Fees and Suits Valuation Act, 1958 (the Act for short) in view of Sub-rules (1) and (2) of Rule 11 of Order 33 C.P.C., as amended by Karnataka Act No. 104 of 1976. Opposing the above submission of Sri D'Sa, Sri Kothavale, learned Counsel for the appellant, urged the following points:- (a) Since the appellant was permitted to file the appeal as an indigent person, she is not liable to pay any Court fee at all, although she has succeeded partly in the appeal; (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aying Court fee and who succeeded in the suit, either partly or fully, is thereby considered as dispaupered, he is liable to pay the requisite Court fee provided in the Act as if he had not been permitted to sue as an indigent person. Therefore, the first contention of the appellant that having been permitted to file the appeal as an indigent person, she is not liable to pay any Court fee, even after partly succeeding in the appeal, is rejected. 16. Coming to the second contention that since the appellant has succeeded partly in the appeal, she is liable to pay court fee only to the extent she has succeeded and not on the amount claimed in the appeal and that too under the amended Article-1 of Schedule-I to the Act, by Act No. 2 of 1993. Article-1 Clauses (i) and (ii) of Schedule-I to the Act came to be amended and the amendment came into effect at once. Section 2 of the Amending Act reads: 2. Amendment of Schedule-I. In Schedule-I of the Karnataka Court Fees and Suits Valuation Act, 1958 (Karnataka Act 16 of 1958) in Article-1 for Clauses (i) and (ii) and the entries relating thereto, the following shall be substituted, namely:- 1. Plaint, written statement, pleading a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he suit, the Court shall calculate the amount of court-fees which would have been paid by the plaintiff if he had not been permitted to sue as an indigent person; such amount shall be recoverable by the State Government from any party ordered by the decree to pay the same, and shall be a first charge on the subject-matter of the suit. By a careful consideration of the language employed in the above Rule, it is true that there is discretion vested in the Court to order any party to the suit to pay the Court fee. But under what circumstances the Court could exercise such discretion to do so is another question. Whether in a case of this kind the Court is competent to direct the appellant to pay the Court fee to the extent she succeeded has to be considered. In Chandradass Butt's case, the Kerala High Court has held as follows:- On a reading of Rule 10 of Order 33 it will be seen that the said rule deals with the cases of a pauper plaintiff who succeeds in the suit and Rule 11 of Order 33 deals with the pauper plaintiff who fails in the suit. Neither Rule 10 nor Rule 11 deal with cases when the pauper plaintiff partly succeeds and partly fails. No provision, separate or sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AIR1959All37 ; STATE OF BIHAR v. SHEO KUMAR SINHA). On failure of a pauper suit it is the plaintiff who alone becomes liable for payment of Court fee (See STATE OF BOMBAY v. DATTATRAYA NARASINGRAO AIR 1960 Mys 95). 22. No doubt, the appellant was pauper as on the date of filing the appeal; therefore she was permitted to prosecute it in forma pauperis. She has now succeeded partly in the appeal and therefore she is liable to pay the Court fee. Having regard to the amounts she is entitled to on enhancement of compensation and applying Sub-rule (2) of Rule 11 as amended to the facts of the present case, she has undoubtedly become dispaupered and therefore she would be required to pay the requisite Court fee as provided under the Act on the amount claimed and not to the extent she succeeded, the object of the Rules 10 and 11 of Order 33 being protection of revenue. The Kerala High Court and other High Courts had no occasion to consider the amended Rule 11 applicable to the State of Karnataka. Therefore, the appellant is liable to pay the requisite Court fee on the difference between the amount awarded and the amount claimed in the appeal as contemplated in Section 48 of the Act, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akrishnan; 1952CriLJ1503 , Shamarao V. Pamlekar v. District Magistrate; 1972(1) Kar.L.J. 327, Sha Chunnilal v. Gurushanthappa; ILR1986KAR1162 , Uttam Veranekar v. Shattu Laxman and other plethora of Authorities relied upon by Sri Kothavale are of no assistance to the appellant in view of the amendment effected by the State of Karnataka to Rule 11 of Order 33 C.P.C. which in particular makes it abundantly clear that a person who had been permitted to prosecute the suit or an appeal information pauperis has to pay the requisite Court fee on his being dispaupered, which would have been payable by him if he had not been permitted to sue as pauper. 27. Ultimately, we have to fall back upon the amended provisions of Rule 11 of Order 33 which are the touch-stones to decide the question confronting us whether this Court can direct the appellant to pay the Court fee to the extent she succeeded or on the amount sought to be increased in the Appeal. Having regard to the language employed in Sub-rules (1) and (2) of Rule 11 of Order 33 CPC., it is clear that no discretion is left to the Court to permit a person subsequently dispaupered to pay the Court fee only to the extent he succeeds. On ..... X X X X Extracts X X X X X X X X Extracts X X X X
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