Sankunni Somadhan vs Vinodhini Amma and Others

Hassan Pillai, J.—But for the persuasive and forceful argument of the learned Counsel Shri Shaffique, who rendered able and valuable assistance to us in answering the question mooted before us, we would have declined to grant the relief of refund of court fee prayed for in the C.M.P. repelling the contention canvassed before us by the learned Counsel for the Petitioner, which in our considered view is devoid of any force, that Section 66 of the Kerala Court Fees and Suits Valuation Act, 1959 (for short the Act) which provides for refund of court fee as it stands does not bar out the present case from the purview of that Section. At the same time, we appreciate the forthright and can did submission made by counsel for the Petitioner while making a fervent plea for refund of court fee paid that it was on the basis of the wrong legal advice given by her the court fee of Rs. 10,706 was paid by the Petitioner, though we find no factual or legal basis for giving such a wrong advice. Needless to point out here that court fee payable in an appeal u/s 52 of the Act need be paid by a party who approaches the court for restoration of the appeal rejected on the ground of delay in making payment of the deficit court fee only on allowing the application by the court to restore the appeal to file which was rejected. The skeletal facts require to be mentioned here for deciding affirmatively or otherwise the core issue i.e., whether court fee paid is to be given back or not are the rejection of the plea of the Petitioner by the Subordinate Judge, Cherthala and passing of a judgment'' and Decree in O.S. No. 515/98 directing him to pay arrears of rental at the rate of Rs. 1293/per month from 1st November 1985 to 20th April 1989 and further directing him to pay rent at the rate of Rs. 1213 per month from the date of the decree. Dissatisfied with that judgment and Decree the Petitioner preferred appeal before this Court paying one-third court fee payable in the appeal at the stage of admission as provided u/s 52 of the Act and, as stated earlier, that appeal happened to be rejected by this Court on the ground of non-payment of the deficit court fee within the time prescribed either under the Act or within the extended time granted by this Court for payment of the deficit court fee.

An unsuccessful attempt was made by the Petitioner to get restored the appeal to file by filing restoration application and at the time of filing the restoration application he also paid the court fee payable in the appeal. It is for refund of the court fee thus paid this petition has been filed.

It may be noted that it is not possible to spell out a case from the averments made in the petition that Section 70 of the Act squarely applies to the facts of the case and as no factual foundation is laid to build a case asserting that Section 70 of the Act is attracted we need not consider the question whether court fee was paid by mistake or inadvertance. A conclusion can be legitimately arrived at that the Petitioner''s case does not fall within the purview of Section 70 and the reason is that legitimate inference possible on the basis of materials on record is that the court fee was paid by the Petitioner in his anxiety or eagerness to get the appeal re-admitted which happened to be rejected on the ground of non-payment of deficit court fee and his earnest endeavour which had not fructified was to impress upon the court that there was no wilful laches on his part to pay the deficit court fee. Such a case is adumbrated in the petition filed to rescore the rejected appeal to file.

Evidently Section 66 has no bearing on the question inasmuch as it deals with a different situation. Section 66 runs as follows:

Refund in cases of delay in presentation of plaint, etc-

(1) Where a plaint or memorandum of appeal is rejected on he ground of delay in its representation, or where the fee paid on a plaint or memorandum of appeal is deficient and the deficient is not made good within the time allowed by law or granted by he Court, or the delay in payment of the deficit fee is not condoned and the plaint or memorandum of appeal is consequently rejected, the Court shall direct the refund to the Plaintiff or the Appellant of the fee paid on the plaint or memorandum of appeal which has been rejected.

(2) Where a memorandum of appeal is rejected on the ground that it was not presented within the time allowed by the law of limitation, one half of the fee shall be refunded.

It is plainly clear from Section 66 of the Act that that Section provides for refund of the court fee to the Appellant if the memorandum of appeal is rejected consequent on the delay in payment of deficit court fee (we are concerned only with that part of the section) and court fee sought to be refunded is not the court fee paid at the stage of admission of first appeal but the court fee paid subsequently along with the application filed for restoration of appeal.

No one has a case that court fee sought to be refunded is the court fee chargeable in respect of application for restoration of the appeal and it is also nobody''s case that excess court fee was paid on the restoration application. The court fee sought to be refunded is not the excess court fee paid and the factual position is that at the time of paying court fee no appeal preferred against the judgment and Decree passed by the Subordinate Judge in O.S. No. 515/98 was pending. At the time of payment of court fee the Petitioner was not liable to pay court fee payable in appeal u/s 52 of the Act (in fact court fee paid was court fee payable in appeal) and, therefore, we have no hesitation to hold that the court fee sought to be refunded was never paid under any provisions of the Act in any of the schedule and it was never the money of the Government. If we give a direction to the Registry to refund the court fee paid by the Petitioner we are doing only a proper thing by passing a formal order in exercise of the inherent jurisdiction to stop abuse of the process of the Court. We may also state here that if a litigant is made to pay fees which is not payable by him under the provisions of the Act the statute does not stand in the way of refunding such fees paid as it never authorised receipt of such fees. In such cases the litigant has got a right to get refunded court fee paid because the court fee paid is his money. As the Court has inherent jurisdiction to order refund of court fee paid ex debito justitiae in such circumstances we are inclined to allow the petition to refund the court fee of Rs. 10,706 paid by the Petitioner along with petition filed to restore the appeal. The Registry is directed to refund the court fee of Rs. 10,706 paid by the Petitioner.

The C.M.P. is allowed.