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2011 DIGILAW 1101 (KER)

S. Manilal Panicker v. Titto Abraham

2011-11-09

P.Q.BARKATH ALI, V.RAMKUMAR

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Judgment :- RamKumar, J. 1. This appeal filed under Section 5 of the Kerala High Court Act, 1958 was disposed of by a Division Bench on 25-3-2010 as “closed” consequent on the matter having been settled before the Lok Adalat organized by the High Court Legal Services Committee on 4-3-2010. But then the Registry raised an objection that the appellant had paid only 1/3 of the court fee at the time of filing the appeal and the balance court fee was not paid. Thereupon the case was posted for hearing on the above question regarding the balance court fee payable. 2. We heard Advocate Sri. P.C. Chacko, the learned counsel appearing for the appellant and Advocates M/s. Jikku Jacob and Roy Thomas, the learned Government Pleaders who represented the State. 3. The above appeal was filed on 19-5-1998 remitting 1/3 court fee of Rs.1215/-. The total court fee payable on the memorandum of appeal was Rs.3,640/-. The balance court fee payable was Rs.2425/-. The balance court fee payable was Rs.2425/-. It was said deficit court fee that the Registry raised the above objection. 4. After the filing of the appeal, the Division Bench before which the appeal was pending referred the matter to the Lok Adalat on 13-1-2010 evidently under clause (ii) of Section 20(1) of the Legal Services Authorities Act, 1987 (“the L.S.A. Act” for short) to explore the possibilities of a settlement. On 4-3-2010 the matter was settled before the Lok Adalat. Consequently on 25-3-2010 when the settlement was reported to the Division Bench, the appeal was closed noting the factum of settlement before the Lok Adalat and directing refund of half the court fee to the appellant. The Division Bench was presumably following Section 69 of the Kerala Court Fees and Suits Valuation Act, 1959 (“the Kerala Court Fees Act” for short) as per which when a suit or appeal is compromised, the plaintiff or the appellant, as the case may be, is entitled to refund of one half of the court fee. But in this case, since the appellant had paid only 1/3rd court fee at the time of filing the appeal, the question of refund of one half of the court fee did not really arise. 5. But in this case, since the appellant had paid only 1/3rd court fee at the time of filing the appeal, the question of refund of one half of the court fee did not really arise. 5. The learned Government Pleaders who defended the State made the following submissions before us:- Even when the suit or appeal is compromised at a time when the suit or appeal is pending before the Civil Court, by virtue of the proviso to Sec.69 of the Kerala Court Fees no refund can be ordered if 1/3rd of the court fee payable on the memorandum of appeal as required by Sec.52 of the said Act had already been paid by the appellant. Hence, merely because the matter has been settled before the Lok Adalat, the 1/10th court fee already paid cannot be refunded. The position would be different if the entire amount of court fee had been paid at the time of filing the appeal. 6. After hearing both sides we are of the view that the appellant is not liable to pay the balance court fee and he is also entitled to refund of the 1/3 court fee already paid. 7. We will first examine the provisions of law which govern the matter. The L.S.A. Act was enacted in the year 1987 to give effect to the States’ obligation to provide free legal aid which is one of the directive principles of State policy enshrined in Article 39 A of the Constitution of India. The said Article reads as follows: “39 A – Equal justice and free legal aid:- The State shall secure that the operation of the legal system promotes justice, on the basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.” Thus, the L.S.A. Act saddles upon the State the obligation to provide free legal aid and legal services to the deserving sections of the society. The L.S.A. Act which was enacted and published in the gazette of India on 12-10-1987 was, however, brought into force as such (excluding Chapter III thereof) in the whole of India only with effect from 9-11-1995 Chapter III of the L.S.A. Act, dealing with the State Legal Services Authority was brought into force in the State of Kerala only with effect from 6-2-1998. One of the laudable objectives proclaimed in the preamble to the said Act is to provide free and competent legal service to the deserving sections of the society. The expression “Legal Service” has been defined under Sec.2(c). Section 2(d) of the Act defines the expression “Lok Adalat” to mean the Lok Adalat organized under Chapter VI of the said Act. Under Sec.19 of the said Act Lok Adalats are to be organized by every State Legal Services Authority, the District legal Services Authority, Supreme Court Legal Services, Committee, High Court Legal Services Committee and Taluk Legal Services Committee. Section 19(5) of the L.S.A. Act gives the jurisdiction of the Lok Adalat to determine and to arrive at a compromise or settlement between the parties to a dispute both at the pre-litigation as well as para litigation stages. Under Section 20 of the LSA Act cases which can be settled under Section 19(5) of the Act can be referred to the respective Lok Adalat if both parties agree or if one of the parties makes an application to the Court and the Court which is prima facie satisfied that there are chances of settlement or if the court is suo motu satisfied that the matter is an appropriate one to be taken cognizance of by the Lok Adalat. In the case of matters which are cognizable by the civil courts, there is Section 89 of the Code of Civil Procedure, 1908, (C.P.C. for short) which provides for four different modes of alternate dispute resolution mechanism, (ADR mechanism) namely; Arbitration, Conciliation, Judicial Settlement including settlement through Lok Adalat and Mediation. Sub section 2(b) of Section 89 of the C.P.C. inter alia provides that where a dispute has been referred to Lok Adalat under Section 89(1), the court shall refer the same to the Lok Adalat in accordance with Section 20(1) of the L.S.A. Act and thereupon all other provisions of the L.S.A. Act shall apply in respect of the dispute so referred to the Lok Adalat. There cannot be any dispute that the ADR mechanisms can be resorted to not only when the dispute is pending before the Court of the first instance but also before the Courts of appeal since an appeal is a continuation of the suit and the powers of the appellate Court are ordinarily co-extensive with those of the trial Court. (See Section 107 C.P.C.) Section 21 occurring in Chapter VI of the LSA Act reads as follows:- “21. Award of Lok Adalat:- (1) Every award of the Lok Adalat shall be deemed to be a decree of a civil court or, as the case may be, an order of any other court and where a compromise or settlement has been arrived at, by a Lok Adalat in a case referred to it under sub-section (1) of Section 20, the court-fee paid in such case shall be refunded in the manner provided under the Court Fees Act, 1870 (7 of 1870). (2) Every award may by Lok Adalat shallbe final and binding on all the parties to the dispute, and no appeal shall lie to any court against the award.” Section 25 of the LSA Act gives overriding effect to the said Act over any other law for the time being in force. The said Section reads as follows:- “25. Act to have overriding effect:- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The conjoint effect of Sections 21 and 25 is that if there is anything in any other law inconsistent with the provisions of the L.S.A. Act, the provision of the LSA Act shall prevail. By virtue of the provisions made under Sec.21 of the LSA Act where a compromise or settlement has been arrived at by he Lok Adalat in a case referred to it under sub Section (1) of Section 20, the court fee paid in such case shall be refunded in the manner provided under Court Fees Act, 1870 (“the Central Court Fees Act” for short). Section 16 of the Central Court Fees Act is the provision providing for refund of court fee. Section 16 of the Central Court Fees Act is the provision providing for refund of court fee. The said Section was inserted by the very same amending Act 46 of 1999 as per which Sec.89 and Rules (1A), (1B) and (1C) to Order X C.P.C. were substituted or inserted as the case may be. Section 16 which was originally there in the Central Court Fees Act had been deleted therefrom when the C.P.C. was enacted in the year 1908. It was by Amending Act 46 of 1999 that the present Section 16 of the Central Court Fees Act was inserted and it came into force with effect from 1-7-2002. The said Section reads as follows: 16. Refund of fee:- Where the Court refers the parties to the suit to any one of the mode of settlement of dispute referred to in Section 89 of the Code of Civil Procedure, 1908 (5 of 1908), the plaintiff shall be entitled to a certificate from the Court authorizing him to receive back from the Collector, the full amount of the fee paid in respect of such plaint.” The question as to which was the provision of law in the Central Court Fees Act, provided for refund of Court fees during the period of operation of the L.S.A. Act prior to 1-7-2002 with effect from which date only Section 16 of the Central Court Fees Act came into force, does no arise for consideration in these proceedings. Probably, it must have been Section 13 of the Central Court Fee Act where also the procedure is for the Court to grant a certificate authorising the party to receive back from the Collector the Court fee already paid. This is because Section 21 of the L.S.A. Act only envisages refund of Court fees in the manner provided under the Central Court Fees Act. 8. The question which now emerges for consideration is as to whether the court fee already paid on the memorandum of appeal, either partly or wholly can be refunded in full consequent on a settlement of the dispute before the Lok Adalat to which the case has been referred either under Section 89 C.P.C. or under Section 20 of the L.S.A. Act. If we go by the Kerala Court Fees Act the provision which provides for refund of court fee on settlement of the dispute is Section 69 which reads as follows:- “69. If we go by the Kerala Court Fees Act the provision which provides for refund of court fee on settlement of the dispute is Section 69 which reads as follows:- “69. Refund in cases of compromise or when suit is decided on the admission of parties:- When suit or appeal is compromised or when a suit is decided solely on the admission of parties without any investigation, one-half of the Court fee paid on the plaint or memorandum of appeal shall be ordered by the Court to be refunded to the parties by whom the same have been paid respectively: (Provided that no refund shall be ordered where only one-tenth of the amount of fee on plaint as required by Section 4A or one-third of the amount of fee on memorandum of appeal as required by Section 52 has been paid by the parties.) The above proviso was added with effect from 5.12.1990 as per Amendment Act 6 of 1991. It is indisputable that Section 69 of the Kerala Court Fees Act and its proviso can have application only in those cases where the matter is pending before the Court. But when once the court refers the matter to the Lok Adalat for exploring the possibilities of a settlement then going by the mandate of Section 21 of the LSA Act, the entire court fee paid in such case has to be refunded in the manner provided under the Central Court Fees Act. Section 16 of the Central Court Fees Act provides for a certificate to the plaintiff from the Court authorizing him to receive back from the Collector the full amount of the court fee paid in respect of the plaint in a case where the court has referred the parties to the suit to any one of the ADR mechanisms enumerated under Section 89(1) C.P.C. Section 16 does not even say that the matter referred to the ADR Forum should even be settled. But the right to refund the court fee, by virtue of Section 21 of the L.S.A. Act will accrue only on settlement or compromise. Hence in a case where the settlement is arrived at in court or outside the court at a time when the matter is pending before the Civil court, it is Section 69 of the Kerala Court Fees Act which will apply. Hence in a case where the settlement is arrived at in court or outside the court at a time when the matter is pending before the Civil court, it is Section 69 of the Kerala Court Fees Act which will apply. But where the dispute is settled before the Lok Adalat consequent on a reference either under Section 20 of the LSA Act or under Section 89 C.P.C. then it is Section 21 of the LSA Act which will govern the matter in relation to the refund of court fee and such refund will have to be made in the manner provided under Section 16 of the Central Court Fees Act. 9. We will now examine the case on the subject. In Vasudevan v. State of Kerala a learned Judge (Justice P.R. Raman) of this Court after adverting to the aforementioned provisions of law came to the conclusion that Section 69 of the Kerala Court Fees Act has no application with regard to a matter referred to the Lok Adalat in terms of the provisions contained in Section 89(2)(b) C.P.C read with Section 20 of the L.S.A. Act and therefore it is Section 16 of the Central Court Fees Act read with Section 21 of the L.S.A Act which will govern the matter regarding refund of court free and the party will be entitled to refund of the whole court fee. The same view was by another learned Judge (Justice K. Padmanabhan Nair) in Aboobackar v. District Collector – (2007 KLT 670). Another learned Single Judge (Justice S.S. Satheesachandran), however, in John Arthur Henshaw v. Solochana – (2010 (1) KLT 10), taking the cue from Salem Advocate Bar Association, Tamil Nadu v. Union of India – (AIR 2005 SC 3353) held that unless and until necessary amendments are made in the Kerala Court Fees Act, it is not possible or permissible to order refund of the one-tenth court fee on the plaint under Section4A of the Kerala Court Fees Act in the light of the proviso to Section 69 of the Kerala Court Fees Act. The learned Judge was of the view that the provisions of the Central Court Fees Act which are not applicable to the State of Kerala, cannot be pressed into service for refund of the one-tenth court fee paid on the plaint. The learned Judge was of the view that the provisions of the Central Court Fees Act which are not applicable to the State of Kerala, cannot be pressed into service for refund of the one-tenth court fee paid on the plaint. Vasudevan’s case and Aboobackar’s case supra were sought to be distinguished on the ground that in both those cases the question was for refund of the entire court fee already paid and the question of refunding one-tenth of the court fee already paid on the plaint did not arise for consideration. 10. We are afraid that we find ourselves unable to agree with the reasoning given in John Arthur’s case. It is true that in paragraph 67 of Salem Advocate Association’s case – (AIR 2005 SC 3353) it has been observed by the Supreme Court that with regard to the refund of court fee where the matter is settled by reference to one of the modes provided in Section 89 C.P.C it is for the State Governments to amend the laws on the lines of the amendment made to the central Court Fees Act. But then, the said observation by the Apex Court does not have the effect of declaring the law within the meaning of Article 141 of the Constitution of India. The Apex Court was making the said observation without considering Section 21 of the LSA Act which has specifically provided for such contingencies. When the question of refund of court fee in matters referred to Lok Adalat has already been taken care of by the L.S.A Act, we do not consider it necessary to advert to the observations of the Supreme Court in paragraph 11 of Delhi Municipal Corporation v. Guram Kaur – (AIR 1989 SC 38) or paragraph 41 of State of U.P. v Synthetics and Chemicals Ltd. – (AIR (1991) 4 SCC 139 to hold that the observations in paragraph 67 of the Salem Advocate’s Bar Association was passed sub silentio. 11. 11. We are of the view that it is not necessary for the State Government to amend the Kerala Court Fees act particularly Section 69 thereof for a plaintiff who has paid court fee either in part or in full on the plaint or the appellant who has paid court fee either impart or in full on the memorandum of appeal to get a refund of the court fee in terms of Section 21 of the L.S.A. Act in cases where the dispute has been settled before the Lok Adalat on a reference by the civil court either on the original side or on the appellant side. With due respect, we are of the view that John Arthur’s case which has attempted to distinguish Vasudevan and Aboobeckar does not lay down the law correctly and we overrule the same. Incidentally, we notice here a recent decision by another learned Judge (Justice Thomas P. Joseph) of this Court in Thomas v. State of Kerala – 2011 (34) KLT 256 wherein it has been held that the direction by the Lok Adalat to refund 1/10th court fee paid is to be complied with by the civil court when the case has been settled before the Lok Adalat consequent on a reference to it by the civil court. We hold that Vasudevan, Aboobeckar and Thomas lay down the correct principles of law governing the matter. Accordingly, we hold that Section 69 of the Kerala Court Fees Act together with its proviso will have application only when the matter is pending before the civil court and not after it has been referred to the Lok Adalat for settlement unless the matter comes back to the referring Court without a settlement. Where the dispute is settled before the Lok Adalat upon a reference either under Section 20 of the LSA or under Section 89 C.P.C. it is Section 21 of the L.S.A. Act which will govern the question regarding refund of court fee and the entire court fee will have to be refunded in the manner provided under Section 16 of the Central Court Fees Act. It is pertinent to notice that in matters referred to the Lok Adalat the remittance of court fee is not made at the Lok Adalat but at the court which has referred the matter. It is pertinent to notice that in matters referred to the Lok Adalat the remittance of court fee is not made at the Lok Adalat but at the court which has referred the matter. That is presumably why Section 16 of the Central Court Fees Act provides for a certificate from the Court authorizing the party to receive back from the Collector the full court fee already paid. On production of the said certificate before the Collector, the Collector will issue the necessary cheque or authorization entitling the party to get a refund of the court fee already paid from the Treasury concerned. If what has been paid is only part of the court fee payable, the party who has paid that part will also be entitled to refund of the said part and will also be exempted from remitting the balance court fee. Accordingly we hold that the appellant in this case who has already remitted one-third of the court fee is entitled to a certificate in terms of Section 16 of the Central Court Fees Act if an application is made in that behalf and he need not pay the balance court fee payable on the memorandum of appeal. We place on record our appreciation to Advocate Sr. P.C. Chacko, the learned counsel who appeared for the appellant and M/s. Jikku Jacob and Roy Thomas, the learned Government Pleaders who assisted the Court.