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1999 DIGILAW 407 (KER)

Zakariyas v. Johny

1999-09-09

K.A.MOHAMMED SHAFI, P.K.BALASUBRAMANYAN

body1999
Judgment :- P.K. Balasubramanyan, J. Though we dictated an order on 8.9.1999 ordering refund of one half of the court fee in terms of S.66(2) of the Kerala Court Fees and Suits Valuation Act, before signing the same we felt a doubt about the order for refund in the circumstances of the case. The matter was therefore, posted to this day for being spoken to. Counsel were again heard. 2. This appeal was initially presented by the appellant before the District Court. The appeal was valued at Rs. 83,268 and a court fee of Rs. 4548 was paid. Second proviso to S.52 of the Kerala Court Fees and Suits Valuation Act was not resorted to by the appellant. The District Court returned the appeal on 24.8.1998 on the ground that the appeal lay not to that Court but to the High Court. The appeal was thereupon re-presented in this Court. Valuation was corrected as Rs. 1,24,758 since the appellant was bound to value the interest that accrued from the date of suit till the date of the decree of the trial court unless of course he was prepared to relinquish that. Thus the court fee payable became Rs. 7657. The appeal showed that he had paid Rs. 4548 already and the balance to be paid was Rs. 3109. The appellant thus was taking advantage of the second proviso to S.52 of the Kerala Court Fees and Suits Valuation Act and was pointing out that he had paid more than one third of the court fee that was due on the appeal. 3. The petition for condoning the delay in filing the appeal in this Court was withdrawn on the ground that the dispute between the parties has been settled out of Court, and hence it was not necessary to pursue that petition. We have dismissed the petition for condoning the delay on that ground. Therefore, the appeal has to be dismissed on the ground that the delay in filing the appeal was not being condoned. This attracts S.66(2) of the Kerala Court Fees and Suits Valuation Act and the appellant would be entitled to refund of one half of the court fee on the Memorandum of Appeal. The Court fee payable on the Memorandum of Appeal, as noted, is Rs. 7657. Half of that would be Rs. 3828.50. Appellant has paid Rs.4548. This attracts S.66(2) of the Kerala Court Fees and Suits Valuation Act and the appellant would be entitled to refund of one half of the court fee on the Memorandum of Appeal. The Court fee payable on the Memorandum of Appeal, as noted, is Rs. 7657. Half of that would be Rs. 3828.50. Appellant has paid Rs.4548. He will obviously be entitled to are fund of Rs. 719.50 going by S.66(2) of the Kerala Court Fees and Suits Valuation Act. 4. But learned counsel for the appellant contended that what S.66(2) contemplates is the fee paid on the Memorandum of Appeal and not the fee payable on the Memorandum of Appeal and from that point of view the appellant is entitled to refund of half of the court fee paid even if it be only one third of the Court fee payable on the appeal in terms of the second proviso to S.52 of the Court Fees Act. But a look at the wording of S.66(2) and appreciating it in the light of S.69 and the proviso thereto and the wording of S.52 and the further proviso we are of the view that when the appellant takes advantage of the further proviso to S.52 of the Act and has paid only one third of the court fee due on the appeal and withdraws the appeal before the appeal is admitted, he would not be entitled to refund of one half of the one third court fee he has paid on the appeal. The question of refund of one half would arise only if the entire court fee on the appeal has been paid. The appellant would not be entitled to refund of any portion of the one third Court fee paid by him by invoking the further proviso to S.52 of the Court Fees Act In this case, the appellant, as noted, has paid not merely one third of the Court fee due on the appeal but has in fact paid more than that figure since he did not invoke the further proviso to S.52 of the Court Fees Act before the District Court, in which he originally filed the appeal. One half of the court fee payable on the appeal, as noted is only Rs. 3828.50. The appellant would therefore be entitled to a refund of Rs. 719.50 in the circumstances. One half of the court fee payable on the appeal, as noted is only Rs. 3828.50. The appellant would therefore be entitled to a refund of Rs. 719.50 in the circumstances. While therefore, dismissing this appeal on the ground that the delay in filing the appeal has not been condoned, we order that a sum of Rs. 719.50 would be refunded to counsel for the appellant in terms of S.66(2) of the Kerala Court Fees and Suits Valuation Act.