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2012 DIGILAW 956 (KER)

K. K. Mammu v. State Of Kerala

2012-10-29

K.T.SANKARAN, M.L.JOSEPH FRANCIS

body2012
JUDGMENT K.T. Sankaran, J. 1. After condoning the delay of 364 days, the Land Acquisition Appeal comes up for admission today. The learned counsel appearing for the appellant submitted that connected appeals were allowed and the cases were remanded to the Land Acquisition Court. The counsel submitted that in such circumstances, the appeal may be allowed and the case may be remanded to the reference court. The appellant also wants a direction to refund the one third court fee paid on the memorandum of appeal. In other words, the learned counsel submitted that the appellant need not be made liable to pay the balance two third court fee and then to get refund of the entire court fee. 2. If payment of court fee and refund of the same alone are taken into account, what is submitted by the learned counsel for the appellant would appear to be simple. The question is whether such a course can be adopted in a case where only one third of the court fee is paid. 3. Section 52 of the Kerala Court Fees and Suits Valuation Act, 1959 provides for payment of court fee in an appeal. Before insertion of the second proviso to Section 52 of the Kerala Court Fees and Suits Valuation Act, full court fee was payable on the memorandum of appeal. After insertion of the second proviso by the Amendment Act 6 of 1991, the appellant need pay only one third of the court fee payable in an appeal at the stage of admission and the balance court fee shall be paid within such period, not later than fifteen days from the date of such admission as may be specified by the court, after admission of the appeal. By the same Amendment Act 6 of 1991, Section 4A was inserted whereby the plaintiff need pay only one tenth of the court fee along on the plaint at the time of institution of suit and the balance court fee shall be paid within a period of 15 days from the date of framing of the issues. 4. Section 67 of the Court Fees and Suits Valuation Act provides for refund of court fee in the case of remand. Section 67 reads as follows: “67. 4. Section 67 of the Court Fees and Suits Valuation Act provides for refund of court fee in the case of remand. Section 67 reads as follows: “67. Refund in cases of remand :-(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 a fresh 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. (2) Where an appeal is remanded in Second Appeal for a fresh decision by the lower appellate court, the High Court remanding the appeal may direct the refund to the appellant of the full amount of fee paid on the memorandum of second appeal if the remand is in second appeal: Provided that, no refund shall be ordered if the remand was caused by the fault of the party who would otherwise be entitled to a refund : Provided further that, if the order of remand does not cover the whole of subject matter of the suit, the refund shall not extend to more than so much fee as would have been originally payable on that part of the subject matter in respect whereof the suit has been remanded.” 5. There is no provision in the Kerala Court Fees and Suits Valuation Act for refund of court fee while remanding a case without the appellant paying the entire court fee. Unless the entire court fee is paid, the appeal cannot be heard on the merits. If so, it cannot be said that an appeal can be allowed and a remand of the case can be made with a direction to refund one third of the court fee paid on the memorandum of appeal without insisting on the payment of the balance two third of court fee as provided under the second proviso to Section 52 of the Kerala Court Fees and Suits Valuation Act. The scheme of Order XLI of the Code of Civil Procedure fortifies this conclusion. Admission of an appeal is made after a hearing as provided under Rule 11 of Order XLI. The scheme of Order XLI of the Code of Civil Procedure fortifies this conclusion. Admission of an appeal is made after a hearing as provided under Rule 11 of Order XLI. If the appeal is not dismissed under Rule II, the appellate court shall fix a day for hearing the appeal, as provided in Rule 12 of Order XLI. Remand of the case would take place only after final hearing of the case. An appeal would not be finally heard and disposed of unless the balance court fee is paid under the Second proviso to Section 52 of the Kerala Court Fees and Suits Valuation Act. Refund of court fee under Section 67 of the said Act would be made only after payment of the full court fee. The prayer made by the learned counsel for the appellant is, therefore, rejected. Admit the Land Acquisition Appeal. Issue notice to the respondents.