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2006 DIGILAW 54 (KER)

Ramachandran Pillai v. The Kerala Water Authority

2006-01-27

K.P.BALACHANDRAN

body2006
Judgment :- This is appeal filed by the plaintiff in O.S.135 of 1995 on the file of the sub Court Muvattupuzha challenging that part of the judgment and decree passed by the trial court whereby it was directed that a copy of the decree be forwarded to the District Collector for realization of court fee. 2. The suit O.S.135 of 1995 one instituted by the appellant-plaintiff as an indigent person obtaining permission of court. The defendant entered appearance in the suit and it is submitted that the defendants filed written statement also. Thereafter the suit was dismissed as not pressed and later it was again restored on an application vide I.A.374 of 1998. Thereafter the suit was withdrawn with liberty to file fresh suit vide order on I.A.375 of 1996. It was while withdrawing the suit with such leave that the trial court directed that a copy of the decree be forwarded to the District Collector for realization of court fee. 3. Rule 11 of Order XXXIII C.P.C. stipulates the procedure to be adopted by the court inter alia in the event of a suit by an indigent person being “11. Procedure where indigent person fails. Where the plaintiff fails in the suit or the permission granted to him to sue as an indigent person has been withdrawn, or where the suit is withdrawn or dismissed,-- (a) because the summons for the defendant to appear and answer has not been served upon him in consequence of the failure of the plaintiff to pay the court-fee or postal charges(if any) chargeable for such service or to present copies of the plaint or concise statement, or (b) because the plaintiff does not appear when the suit is called on for hearing. The Court shall order the plaintiff, or any person added as a co-plaintiff to the suit, to pay the Court-fees which would have been paid by the plaintiff if he had not been permitted to sue as an indigent person”. 4. Order 11 would suggest that when the suit is withdrawn the court shall order the plaintiff or any person added as a co-plaintiff to the suit. To pay the court fee that would have been paid by the plaintiff if he had not been permitted to sue as an indigent person. 4. Order 11 would suggest that when the suit is withdrawn the court shall order the plaintiff or any person added as a co-plaintiff to the suit. To pay the court fee that would have been paid by the plaintiff if he had not been permitted to sue as an indigent person. In the instant case admittedly the suit was being withdrawn after the stage when the liability for payment of balance court fee had already arisen. When that be so, the court fees which would have been paid by the plaintiff if he had not been permitted to sue as an indigent person is the actual court fee payable in the suit. There is therefore no infirmity or illegality in the judgment and decree passed by the trial court directing a copy of the decree being forwarded to the District Collector to realize the court fee that would have been paid by the plaintiff had he not been permitted to sue as an indigent person. 5. Counsel for the appellant relies on the decision rendered by a learned Judge of this court in Aravindaksha Prabhu v. Shamsudheen (2003 (1) K.L.T.644) wherein it has been held that even in a case where the plaintiff makes a statement that he does not want any relief and gets the suit dismissed will also be a case of the suit being decided solely on the basis of the statement admission made by the plaintiff without any investigation and consequently one half of the court fee shall be liable to be refunded under Section 69 of the Kerala Court Fees and Suits Valuation Act. 6. 6. The argument is that when a suit is decided solely on the admission of the parties without any investigation, one half of the court fee paid on the plaint is liable to be refunded to the party by whom the same has been paid; that the decision in Aravindakasha Prabhu’s case enables half court fee to be got refunded even in case where the suit is got dismissed without any investigation by the plaintiff stating that he does not want any relief in the suit and therefore even in the event of court fee being ordered to be realized under rule 11 of Order XXXIII of the Code of Civil Procedure by forwarding a copy of the decree, it should have been ordered that only half court fee need be recovered invoking Section 69 of the Court Fees Act. 7. Section 69 of the Court Fees Act provides for refund of one half court fee in the event of the suit or appeal being compromised or is decided solely on the admission of the parties without any investigation (emphasis supplied). In my view, Section 69 enables refund of one half court fee in case where suit or appeal being compromised or is decided without any investigation only in the event of such decision being solely on the “admission of the parties”. Dismissal of a suit on the statement of the plaintiff that he does not want any relief or that he has settled the matter out of court cannot be considered as a decision made solely on the admission of the parties. Had the intention of the Legislature been to enable refund of one half court fee even in cases where plaintiff alone submits that he does not want any relief, Section 69 could have been so worded as to have Section 69 applied even on cases of abandonment of suit by the plaintiff. The use of the words decided solely “On the admission of the parties” without any investigation is to take in only instances akin to the suit being decided on admission of the claim by the defendant. In the above view I am unable to agree with the decision in Aravindaksha Prabhu’s case. 8. Counsel for the appellant submitted that in the event of my taking a view different from the view taken by a learned Judge of this court referred to supra. In the above view I am unable to agree with the decision in Aravindaksha Prabhu’s case. 8. Counsel for the appellant submitted that in the event of my taking a view different from the view taken by a learned Judge of this court referred to supra. The issue may be referred for decision by a Division Bench. I would have thought of making a reference but for the fact that in the instant case the question of application of Section 69 of the Court Fees Act which concerns plaintiff or appellant who has paid court fee has no application at all to persons who institute suit or appeal as an indigent person. With respect to suits instituted by indigent persons, the provisions of Order XXXIII of the Code of Civil Procedure which is a special provision is exhaustive and that alone applies. Such persons can invoke Section 69 of the Court Fees Act only in the event of their paying the court fee due and thereafter compromising the suit or causes it to be decided solely on the admission of the parties without any investigation and not when he withdraws the suit without paying court fee rendering the State to the predicament of resorting to steps under the Revenue Recovery Act for realization of the court fee payable. In the latter case the court fee to be paid is the court fee which would have been paid by the plaintiff If he had not been permitted to sue as an indigent person. The judgment and decree of the trial court ordering copy of the decree being forwarded to the District Collector for realization of the court fee which the plaintiff would have paid had he not been permitted to sue as an indigent person adopting the procedure to be followed going by Order XXXIII Rule 11 of the Code of Civil Procedure is not illegal or vitiated for any reason whatsoever. There is absolutely no merit in this appeal. In the result. I dismiss this appeal in limine. This appeal having been filed by the appellant as an indigent person, copy of the decree in this appeal shall be forwarded to the District Collector concerned for realization of one third court fee payable on the Memorandum of Appeal as the appeal is dismissed in limine refusing admission.