BALAN NAIR v. KESAVAN NAMBISSAN — 1972 DIGILAW 250 (KER)

Judgment :- 1. This matter has come up before us on the basis of an office note reading as follows: "The Memorandum of Cross-objections in A, S. No. 411 of 1966 was filed in forma pauperis. There is no specific order in the judgment regarding realisation of court fee by the State. For orders." The plaintiff who had filed a memorandum of cross objections is the applicant in CMP. No. 16933 of 1972 and by that application he has claimed refund of the court fee payable on the memorandum of cross-objections and he has further prayed that it may be directed by this court in the event of its ordering payment of court fees on the memorandum of cross-objections acting under R.10 of Order XXXIII of the Code of Civil Procedure, that the court fee will not be recovered from him in view of S.67 of the Kerala Court Fees and Suits Valuation Act, 1959 (hereinafter called the Act) under which it is claimed that he is entitled to a full refund of the entire court fees payable on the memorandum of cross-objections. 2. The question is not free from difficulty. It is however clear that R.10 of Order XXXIII, in view of R.1 of Order XLIV of the Code of Civil Procedure will apply to appeals and it is not disputed before us to memorandum of cross-objections as well. It is also clear that the plaintiff has succeeded in the memorandum of cross objections, for the finding of the trial court that he is not entitled to mesne profits from the third defendant has been set aside and the matter has been remanded to the court below for a de novo consideration and decision. 3. It is contended by counsel for the plaintiff that for R.10 of Order XXXIII to apply there should be a decree directing the party to pay the court fees and since there is no decree disposing of the cross-objections, the rule cannot apply. 3. It is contended by counsel for the plaintiff that for R.10 of Order XXXIII to apply there should be a decree directing the party to pay the court fees and since there is no decree disposing of the cross-objections, the rule cannot apply. R.10 of Order XXXIII runs thus: "10 Costs where pauper succeeds: Where the plaintiff succeeds in the 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 a pauper; 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." 4. We do not think that it will be correct to read R.10 as applicable only to cases where the direction for payment of court fees is contained in a decree. R.14 of Order XXXIII shows that the direction to pay court fees can be an order as well. And in cases where there is 'remand' in appeal without deciding any question there will be only an order of remand and no decree. It is too far-fetched, we think, to construe R.10 of Order XXXIII as inapplicable in such cases because there is only a direction in an order in such cases for payment of court fees. We have to understand R.10 of Order XXXIII as providing for such cases too. The word decree occurring in R.10 on which so much reliance has been placed by counsel for the plaintiff has to be understood in the context as not a decree as denned in the Code of Civil Procedure but as only containing the final decision of the court directing the payment of court fees. 5. By the judgment of this Court it was directed that the plaintiff who filed the memorandum of cross-objections and the defendants who were the opposite parties and who were respondents to the memorandum of cross-objections must bear their respective costs relating to the memorandum of cross objections. In the light of the above, we have to direct the plaintiff to pay the court fees that would have been payable on the memorandum of cross-objections had be not been permitted to file the memorandum of cross-objections in forma pauperis. In the light of the above, we have to direct the plaintiff to pay the court fees that would have been payable on the memorandum of cross-objections had be not been permitted to file the memorandum of cross-objections in forma pauperis. This amount has also necessarily to be fixed as the court fee payable on the amount which has been claimed in the cross-objections. That is at Rs. 4809-75, We fix the amount of court fees payable on the memorandum Of cross-objections at Rs. 4809-75. 6. On behalf of the plaintiff, it was contended on the basis of C.M.P. No. 13933 of 1972 that this court would have directed refund of the entire court fee paid on the memorandum of cross-objections had it actually been paid in view of S.67 of the Kerala Court-Fees and Suits Valuation Act, 1959. In view of this, it is urged that no orders should be passed under R.10 of Order XXXIII directing the plaintiff to pay the court fees payable on the memorandum of cross-objections or that if an order is passed it should also be directed that it will not be executed and the amount directed to be paid recovered. S.67 (1) of the Kerala Court-Fees and Suits Valuation Act, 1959 is in these terms: "67 (1) Where a plaint or memorandum of appeal which has been rejected by the Lower Court is ordered to be received, or where a suit is remanded in appeal for afresh decision by the lower Court the Court making the order or remanding the appeal may direct the refund to the appellant of the full amount of fee paid on the memorandum of appeal; and, if the remand is on second appeal, also on the memorandum of appeal in the first appellate Court." S. 67 (1) we think, is attracted and if court fee had been paid on the memorandum of cross objections the plaintiff would have been entitled to a direction for the refund under the section. But Sri. But Sri. K. S. Paripoornan, Government Pleader who at our request assisted us and assisted us ably we should say, contended that this section will have application only in cases where the court fee had been paid on an appeal or memorandum of cross objections and that the section would not be attracted at all to cases where there bad been appeal memorandum and memorandum of cross objections, instituted in forma pauperis on which no court fee had been paid. We must say that a literal grammatical reading of the section fully supports this contention and there can be no question of ordering refund under S.67 when no court fee had actually been paid. But as soon as payment is made according to the direction of this court or the amount is recovered by the State, the section would be attracted. We do not think that if the payment had been only pursuant to an order under R.10 of Order XXXIII no refund can be ordered under S.67 of the Act. It was bow-ever urged that the section is applicable only when court fees had been initially paid on the memorandum of appeal or cross objection. We cannot accept this contention. So we are confronted with this position. We will have to pass an order under R.10 of Order XXXIII directing payment of court fees. As soon as it is paid, we will have to order refund of the same court fees under S.67 of the Act. The question is whether in such circumstances there should be realisation of court fees first and then a refund of the court fees or whether the court can avoid this formality which serves no useful purpose as far as the State is concerned. Perhaps it will have the effect of embarassing a litigant particularly those placed on the plaintiff in this case who it had been held was not in a position to pay court fees, and this should be done merely for the purpose of directing a refund and that immediately on payment. We do not think that such a situation should arise and we do not think that the court is helpless in such cases. Though we are obliged to pass an order under R.10 of Order XXXIII we can direct that the amount ordered to be paid will not be recovered in view of S.67 of the Act. We do not think that such a situation should arise and we do not think that the court is helpless in such cases. Though we are obliged to pass an order under R.10 of Order XXXIII we can direct that the amount ordered to be paid will not be recovered in view of S.67 of the Act. Before we conclude we must advert also to another argument of counsel Sri. Paripoornan based on the second proviso to S.67 of the Act. 7. It was suggested that the plaintiff had paid only a much lesser amount in the court below in the suit than that payable in the memorandum of cross objections in support of his claim for mesne profits and by virtue of the second proviso the plaintiff will be entitled only to a refund of court fees paid in the court below. We do not think this contention can stand. The claim for mesne profits was for the whole period from the date from which it was claimed in the plaint. In the memorandum of cross objections the full amount of mesne profits that had accrued till the date of the memorandum of cross objections had been valued. This court directed the investigation of the entire claim. So we -have to take it that the entire claim for mesne profits which formed the subject matter of the cross objections and which was the entire subject matter of the claim for mesne profits in the court below is now under consideration by the court below. So the proviso we think, has no application. This is clear from the wording of the proviso itself because it speaks of "if the order of remand does not cover the whole of the subject-matter of the suit". "The whole of the subject matter of the suit" must be understood as the whole of the subject matter of the claim; in this case the entire claim for mesne profits. Even the latter part of the proviso makes this position clear. It speaks of the court fees "originally payable" on that part of the subject-matter in respect, whereof the suit has been remanded. That part of the subject matter in respect of which the suit has been remanded in this case relates to the whole of the subject matter of the claim for mesne profits. It speaks of the court fees "originally payable" on that part of the subject-matter in respect, whereof the suit has been remanded. That part of the subject matter in respect of which the suit has been remanded in this case relates to the whole of the subject matter of the claim for mesne profits. So even a under the proviso the plaintiff will be entitled to the refund of the amount of fee payable on the memorandum of cross objections had it been paid on the memorandum of cross objections. 8. We think the just order to pass in this ease would be a direct ion that the plaintiff should pay the court fees of Rs. 4809-75 on the memorandum of objections but that this will not be recovered from the plaintiff in view of the liability to refund the same amount immediately by the State in view of S.67 of the Act. We direct accordingly. This in effect is what has been done by the Gujarat High Court in the decision in Misiri Parshottam Jinabhai v. Shah Moti-chand Shamji and another (AIR. 1963 Gujarat 277) relied on by counsel on behalf of the petitioner in C.M. P. No. 13933 of 1972.