Pathu, V.P. and Others vs Tharamakkandy Ayishu and Others

Pius C. Kuriakose, J.—The appeal is being disposed of by a detailed judgment allowing both the appeal as well as the memorandum of cross objections by passing an order of remand. The question which now arises is as to whether the Court fee which has been remitted on the appeal memorandum and on the memorandum of cross objections can be ordered to be refunded to the Appellant/the cross objectors. Section 67 of the Kerala Court Fees and Suits Valuation Act, 1959 is the relevant statutory provision. Section 67 is extracted below:

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 decisions 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 Section 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 the 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.

I am finding in my judgment in the appeal that the remand has been necessitated due to the fault of the Appellant. The first proviso to the Section is a mandatory provision which says 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. Mr. Vathsalan argued that the two provisos apply only to Section 67(2) and has no application to Section 67(1). I cannot agree. A reading of the entire Section and a conjoint reading of the first and second provisos will show that the provisos apply to all orders of remand passed u/s 67. In fact, the second proviso can have application only to orders of remand passed in first appeals to the trial Court and not to orders of remand to the lower appellate Court covered by Section 67(2) in Second Appeals. A purpose interpretation of the provisos is made, It will have to be held that the first proviso will apply to all remand orders whether they be u/s 67(1) and 67(2) since the intention of the legislature in enacting the first proviso is to ensure that a defaulting party is not benefitted by his own fault. Hence, it is ordered that the Court fee paid on the appeal will not be refunded to the Appellant.

The question which arises next for consideration is whether the Court Fee paid on the memorandum of cross objections can be refunded to the cross objectors. Mr. D. Anilkumar, Senior Government Pleader would cite the judgment of the Supreme Court in Hari Shankar Rastogi Vs. Sham Manohar and Others, and submit that a cross objection is like an appeal and has all trappings of an appeal. According to him, even where the appeal is withdrawn or dismissed, the cross objection can still be heard and determined. The above proposition advanced by the learned Senior Government Pleader on the strength of the judgment of the Supreme Court in Hari Shankar Rastogi''s case (supra) can never be any doubt. But the above judgment does not specifically answer the question whether there is justification for ordering refund of Court fee paid on the memorandum of cross objections to the cross objectors in the event of an order of remand being passed. Both the Sub-sections in Section 67 deals specifically with orders of remand passed in appeals or second appeals and do not deal with orders of remand passed pursuant to a memorandum of cross objections.

A Division Bench of this Court in Balan Nair v. Kesavan Nambissan 1973 KLT 280 had occasion to consider the implications of Section 67(1) though in a different context. Their Lordships observed at paragraph 6 of the judgment after quoting Section 67(1) of the Kerala Court Fees and Suits Valuation Act, 1959 as follows:

Section 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.

In that case where the suit had been remanded to the trial Court, the Division Bench had sought the assistance of Sri K.S. Paripoornan, then Government Pleader as amicus curiae and this is what is stated in the judgment in that context:

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 had 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 u/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 Rule 10 of Order XXXIII no refund can be ordered u/s 67 of the Act.

The Division Bench has clearly taken the view that refund of the Court fee paid on the memorandum of cross objections also can be ordered if when an order of remand is made to the trial Court. Significantly, the Government did not canvas before the Division Bench for the position that Section 67(1) and 67(2) does not apply to refund of Court fee paid on the memorandum of cross objections.

Following the principles emerging from the judgment of the Supreme Court in Hari Shankar Rastogi''s case (supra) and the judgment of the Division Bench of this Court in Balan Nair''s case (supra), I hold that Section 67(1) enables the Court to order refund of full Court fee paid on the memorandum of cross objections to the cross objector if it is seen that the remand order is necessitated not due to the fault of the cross objector. It is being found in the judgment that the cross objector is not to blame for the order of remand which has become necessary. I therefore order that the Court fee paid on the memorandum of cross objections be refunded to the cross objectors.