Ramakrishnan vs Venugopalan

A.M. Shaffique, J.—This petition is filed by the appellant claiming refund of one half of the court fees paid in the appeal. The appeal was withdrawn by filing a memo stating that the appellant and respondent have settled the matter out of court and the appellant prefers to withdraw the appeal. In the memo there was a request to refund the entire court fee. The question that arises for consideration is whether the petitioner is entitled for refund of any court fee paid in the appeal.

According to the learned counsel for appellant, when the appeal is withdrawn on arriving at a settlement between the appellant and the respondent, it amounts to a compromise as envisaged under O. XXIII R. 3 of the CPC (hereinafter referred as ''Code'') attracting S. 69 of the Kerala Court Fees and Suits Valuation Act (hereinafter referred to as the ''Act'').

Section 69 of the Act reads as under:

Refund in cases of compromise or when suit is decided on the admission of parties.-When a suit or appeal or is compromised or 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 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 per Section 4A or one-third of the amount of fee on memorandum of appeal as per Section 52 has been paid by the parties.

Apparently, one half court fee on the memorandum of appeal shall be ordered to be refunded if an appeal is compromised. The short question is whether the memo now produced by the counsel for appellant amounts to a compromise. The memo reads as under:

The appellant and the respondent have settled the matter out of court. Hence the appellant be permitted to withdrawn this appeal. The entire court fees paid be refunded.

This memo is signed by the appellant and counsel for appellant.

Heard the learned counsel for appellant and the learned Government Pleader hearing on behalf of the State.

The following judgments have been relied upon by either side which are relevant for a clear understanding of the legal position in respect of the above issue.

(i) Pushpa Devi Bhagat (D) th. LR. Smt. Sadhna Rai Vs. Rajinder Singh and Others, was a case in which the statements of plaintiffs counsel and defendants counsel were recorded on oath by the trial court in regard to the terms of compromise and those statements were read over and accepted to be correct and signed by the said counsel. Having referred to the earlier judgments on the point as to what amounts to "signed by parties" as held in Byram Pestonji Gariwala Vs. Union Bank of India and others, and Jineshwardas (D) through L.Rs. and Others Vs. Smt. Jagrani and Another, the Supreme Court held that the statements of the parties or the counsel recorded by the court and duly signed by the person making the statements would be statements in writing signed by the parties and amounts to a compromise in terms of R. 3 of O. XXIII of the Code.

(ii) Nadesan Vs. Dinesan, is a Division Bench judgment where the parties have entered into a compromise. A reference was made to the judgment in Fr. Antony Vs. Clariat and Convent E. Society, wherein it is held that a recording of the settlement by court is necessary only when the parties to the litigation desire the help of the Court to pass a decree in terms of settlement. It is held in the said judgment that the word settlement include "compromise" also. But if a decree is to be passed on the basis of a compromise or settlement, the procedure prescribed in the O. XXIII R. 3 has to be followed.

(iii) In S. Manilal Panicker Vs. Titto Abraham, , a Division Bench of this Court while construing the provisions of S. 69 of the Act in the light of settlement under S. 21 of the Legal Services Authorities Act 1987 (Kerala) (hereinafter referred as LSA Act) and settlement by other alternate dispute redressal mechanisms under S. 89(1) of the Code observed that in a case where a settlement is arrived at in court or outside the court at a time when the matter is pending before the civil court, S. 69 of the Act will apply. In that case the Division Bench observed that where the dispute is settled before the Lok Adalath under S. 20 of the LSA Act or under S. 89 C.P.C. refund will have to be made as provided under S. 16 of the Central Court Fees Act.

(iv) Peirce Leslie India Ltd. Vs. Kunheerium is referred to, which inter alia holds that S. 69 of the Court Fees Act is not happily worded and refund of court fees on admission of parties is permissible only in cases where there has been no investigation of the dispute in the suit or appeal and judgment is pronounced on the admission of a party or parties against whom the claim is made.

(v) In Aravindaksha Prabhu Vs. Shamsuddin, a learned Single Judge of this Court after referring to the provisions of S. 69 of the Act considered the expression ''compromise'' and indicated that the expression ''compromise'' has to be understood realistically. Reference is made to the Division Bench judgment in Nadesan''s case (supra). The factual circumstances in the said suit would show that suit was settled between the parties on the basis of endorsements made by the counsel to the suit. They requested for refund of half court fee as demanded but no specific direction was given in the judgment/decree. While construing the question as to what amounts to admission, the learned Single Judge opined that there is no necessity to go to S. 17 of the Evidence Act to ascertain whether the statement made by the plaintiff before court that he does not want any relief against the defendant is an admission or not. For the purpose of S. 69, the statement of the plaintiff that he does not want any relief can be reckoned as an admission. In that circumstances, the learned Single Judge held that even in a case where the plaintiff makes a statement that he does not want any relief and gets his suit dismissed it will be a case of the suit being decided solely on the basis of the statement/admission of the plaintiff without any investigation and consequently one half of the court fee shall be liable to be refunded under S. 69 of the Act.

(vii) In Marthoma Rubber Company and Others Vs. Union Bank of India a learned Single Judge of this Court relying upon State Bank of Travancore v. Sreepathi Bhat ( 1986 KLT 22) held that if disposal of the suit is solely on the admission of the parties and without any investigation as such. A party who paid court fee on the plaint is entitled to refund of one half court fee. That was a case decided on admission by the defendant.

(viii) In St. George Orthodox Cathedral Vs. Reetha, a Division Bench of this court while interpreting the provisions of S. 4A and 69 of the Act held that if after payment of 1/10th of the court fee on plaint as required by S. 4A of the Act or payment of one third of the amount of fee on memorandum of appeal as required under S. 52. If the suit is decided on the admission of the parties, it is not necessary to direct the payment of the balance court fee and then the only question to be verified is whether the suit is decided on admission of parties before the payment of court fee.

On an over all consideration of the factual circumstances involved in the matter and the judgments relied upon by either side, the point that requires to be considered is whether on settlement of the subject matter of the appeal outside court would amount to a "compromise" as envisaged under S. 69 of the Act. At this stage a reference to the judgment of the Supreme Court in A.V. Fernandez Vs. The State of Kerala, , will be apposite wherein it is held as under:

In construing fiscal statutes and in determining the liability of a subject to tax one must have regard to the strict letter of the law and not merely to the spirit of the statute or the substances of the law. If the Revenue satisfied the Court that the case falls strictly within the provisions of the law, the subject can be taxed, if, on the other hand, the case is not covered within the four corners of the provisions of the taxing statute, no tax can be imposed by inference or by analogy or by trying to probe into the intentions of then Legislature and by considering what was the substance of the matter.

A perusal of S. 69 of the Act would show that it has two facets. One is" when a suit or appeal is compromised" and the second is "when a suit is decided solely on the admission of parties without investigation". We are only concerned with the first part of the provision. That is when the appeal is compromised. The second part apparently relate only to suits decided on the admission of the parties without any investigation.

Appeal can be compromised or can be withdrawn. In the present case it is withdrawn as settled between the parties out of court. The short question is whether such a settlement out of court is a compromise within the meaning of S. 69. The Division Bench in Nadesan''s case (supra) was considering the settlement referred in S. 4A of the Act. However it is held that in the absence of separate definition given in the Act, the word settlement includes compromise and if a decree is to be passed the procedure under O. XXIII R. 3 is to be followed. O. XXIII R. 3 reads as follows:

Compromise of suit.- Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, [in writing and signed by the parties], or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith [so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit]:

Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.

Aravindakshan Prabhu''s case (supra) apparently does not apply as that was a case in which a suit was decided on admission of the parties. In respect of the appeal, when already a decree is passed against which the appeal is filed, the only provision available for giving refund of court fee is when there is a compromise. The word "compromise" means that it has to be executed and signed in terms with O. XXIII R. 3 of the Code. Supreme Court in Pushpa Devi Bhagat''s case (supra) had gone to the extent of stating that the statement given by the counsel for the parties and duly signed by them amounts to a compromise. But there is no indication in any of the judgments relied upon that when a party withdraws the appeal stating that the matter is settled out of court, he is entitled for refund of court fee in terms of S. 69 of the Act. The appeal is required to be compromised either by passing a decree or by dismissing the appeal by confirming the decree or in any other manner as the parties desire. The word compromise in S. 69 can only be a compromise with reference to O. XXIII R. 3 of the Code. Though a memo is filed and the appellant and his counsel had signed, the respondents are not parties to the same. Therefore the memo filed is only a unilateral statement of the appellant that the matter is settled out of court. A compromise has to be entered into in terms of O. XXIII R. 3 either by the parties or their counsel as held by the Supreme Court in Pushadevi Bhagat''s case. But the fact remains that there has to be some form of statement duly signed by the parties to the lis, or the counsel to indicate the compromise. Going by the memo filed, the same would not amount to a compromise as envisaged under S. 69 of the Act. That apart this is an instance where the appellant has sought to withdraw the appeal as settled out of court. O. XXIII R. 1 of the Code relates to withdrawal of a suit by the plaintiff. When the Code contains provision for withdrawal of a suit and no provision is made in the Act for refund of court fee in the event of withdrawal of the suit, it has only to be reasonably presumed that the legislature deliberately did not include a provision for refund of court fee when a suit is withdrawn either with liberty to file a fresh suit or granting liberty to file a fresh suit. Similarly, if the intention of the legislature was to permit refund of half court fee or full court fee for withdrawing an appeal, either on account of a settlement out of court or otherwise, definitely necessary provision would have been made.

Going by the principles laid down by the Supreme Court in A.V. Fernandez Vs. The State of Kerala, , a strict interpretation of the provisions of Courts Fees and Suits Valuation Act is required. Adopting the said principle, we are of the view that the petitioner/appellant is not entitled to seek refund of court fee. Accordingly, the interlocutory application is dismissed.