Sukumaran Nair K. vs Special Land Acquisition Authority, Kozhikode

Basheer, J.—"When an appeal is dismissed consequent on the dismissal of the petition for condonation of delay in filing the appeal within the prescribed period of limitation, is not the appellant entitled to refund of one-half of the court fee paid under the second proviso to Section 52 of the Kerala Court Fees and Suits Valuation Act and Rules?" The above question has been posed and referred to the Full Bench to consider whether the decision in Zakariyas v. Johny (1999 (3) KLT 419) has been correctly decided, wherein the issue has been answered in the negative.

The Division Bench while making the reference took the view that in Zakariyas (supra) the Bench which decided the case had not dealt with the impact of the amendment to Section 52 and that if the second proviso to Section 52 is read with Section 66(2) of the Act, the appellant would be entitled to refund of one-half of the one-third court fee paid at the time of admission of the appeal.

The Kerala Court Fees and Suits Valuation Act 1959 was amended by Act 6 of 1991 with effect from December 5, 1990. Section 4A which deals with levy of court fee in suits was inserted in Chapter II of the Act, which reads as hereunder:

4A. Levy of fee at the time of institution of suit:- Notwithstanding anything contained in any other provisions of this Act, the amount of fee to be paid on plaint at the time of institution of suit shall be one-tenth of the amount of fee chargeable under this Act and the balance amount shall be paid within such period, not later than fifteen days from the date of framing of issues or where framing of issues is not necessary, within such period not exceeding fifteen days as may be specified by the court:

Provided that the court may for sufficient reasons to be recorded in writing extend the period up to thirty days.

Provided further that if the parties settle the dispute within the period, specified or extended by the court for the payment of the balance amount, the plaintiff shall not be called upon to pay such balance.

Section 52 which deals with court fee payable in appeals was also amended by inserting two new provisos in mat section, in tune with the provisions contained in Section 4A. The relevant provisions in Section 52 are extracted hereunder:

Appeals:- The fee payable in an appeal shall be the same as the fee that would be payable in the court of first instance on the subject matter of the appeal:

Provided that, in levying fee on a memorandum of appeal against a final decree by a person whose appeal against the preliminary decree passed by the court of first instance or by the court of appeal is pending, credit shall be given for the fee paid by such person in the appeal against the preliminary decree.

Provided further that one third of the fee payable in an appeal shall be paid at the stage of admission of first appeal or second appeal as the case may be and the balance shall be paid within such period, not later than fifteen days from the date of such admission as may be specified by the court; in case the appeal is admitted:

Provided also that the court may, for sufficient reasons to be recorded in writing, extend the period up to thirty days.

The second proviso which was newly inserted in Section 52 stipulates that only one-third of the fee payable on an appeal need be paid at the stage of admission of first appeal or second appeal as the case may be, and the balance shall be paid not latter than 15 days from the date of such administration, in case the appeal is admitted. The third proviso enables the court to extend the period for payment of balance court fee up to 30 days for sufficient reasons to be recorded by the court in writing.

Obviously, the amendment made to Section 4A and Section 52 was mainly intended to ameliorate the difficulties and lessen the burden of litigants to some extent. In the case of a suite be instituted on the original side, the plaintiff will be liable to pay only one-tenth of the court fee initially. The balance shall be payable within such period not later than 15 days, from the date of framing of issued. The time for payment of balance court fee can be extended by the court for a period upto 30 days for sufficient reasons. The second proviso to Section 4A absolves the plaintiff from payment of the balance court fee if the parties settle the dispute within the period specified extended by the court for such payment.

In the case of an appeal also the initial burden on the appellant u/s 52 would-be pay only one-third of the court fee payable on the memorandum of appeal at the stage of admission of the appeal. The appellant shall be liable to pay the balance two - third only if the appeal is admitted. Here again, the court may extend the period for payment of balance court fee in appropriate cases and for sufficient reasons. We have referred to the above provisions incorporated under the Amending Act of 1991 only to indicate that the intention of the Legislature was obviously to reduce the burden of the litigant to the extent possible.

Chapter VII of the Act deals with refunds and remissions of court fees. Refund of court fee is permissible in 5 situations as can be seen from Sections 66 to 70 in Chapter VII. They are; in cases of dismissal of suit or appeal on the ground of delay in representation of plaint or appeal memorandum (S. 66), in cases of remand of the case to the court below (S. 67), in cases where the court reverses or modifies former decision on the ground of mistake (S. 68), in cases of compromise or when the suit is decided on the admission of parties (S. 69), and when the fee is paid by mistake or inadvertence (S. 70).

Section 66 which is relevant for the purpose of the case in hand reads thus:

Refund in cases of delay in presentation of plaint etc.:- (1) Where a plaint or memorandum of appeal is rejected on the ground of delay in its representation, or where the fee paid on a plaint or memorandum of appeal is deficient and the deficiency is not made good within the time allowed by law or ranted by the 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.

Sub-section (1) of section 66 enables the plaintiff or the appellant as the case may be, to get refund of the entire fee paid on the plaint or memorandum of appeal if it is rejected on the ground of delay in re-presentation or if the fee paid on the plaint or memorandum of appeal is deficient and the deficiency is not made good within the time allowed by law or granted by the court or the delay in payment of the deficiency is not condoned and consequently the plaint or memorandum of appeal is rejected.

But sub-section (2) deals with appeals which are filed beyond the period of limitation. If the court does not condone the delay and the appeal is rejected as barred by limitation, sub-section (2) postulates that one-half of the fee shall be refunded to the appellant The provision contained in sub-section (2) is clear and unambiguous.

Section 69 in Chapter VII deals with refund of court fee in cases of compromise or when suit is decided on the admission of parties. It reads thus:

Refund in cases of compromise or when suit is decided on the admission of parties:-When a suit or appeal 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 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 Division Bench in Zakariyas (supra) had proceeded to construe sub-section (2) of Section 66 "in the light of section 69 and the proviso thereto and the wording of Section 52 and the newly inserted section and proviso thereunder"

The Division Bench held that the appellant would not be entitled to refund of one-half of the court fee paid on the memorandum of appeal if he "take''s advantage" of the further proviso to Section 52 of the Act and pays only one-third of the court fee due on the appeal and withdraws the appeal before it is admitted, in other words, according to the Division Bench, the appellant would not be entitled to refund of any portion of one-third court tee paid by him as provided under the second proviso to Section 52 of the Act, even if the appeal had not been admitted. With due respect, we are unable to agree with the above view taken by the Division Bench.

In Cape Brandy Syndicate v. Inland Revenue Commissioners ((1921) 1 K.B. 641 Rowlatt, J. had held thus:

..in a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used."

Their Lordships of the Supreme Court in A.V.Femandez v. State of Kerala (1957 SC 657) has held that "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 substance of the law."

As has been noticed already, Section 66(2) deals with situations where the memorandum of appeal is rejected on the ground that it was not presented within the time allowed by the law of limitation. In such cases the statute unambiguously provides that one-half of the fee paid on the memorandum of appeal shall be refunded to the appellant. On the contrary, Section 69 envisages a totally different situation. u/s 69, the plaintiff or the appellant as the case may be, shall be entitled to refund of one-half of the court fee paid on the plaint or memorandum of appeal if the suit or appeal is compromised or when a suit is decided solely on the admission of the parties without any investigation.

The proviso which was inserted in Section 69 by the amending Act of 1991 is significant. It provides that: no refund shall be ordered if only one-tenth of the amount of fee on the plaint as required u/s 4A or one-third of the court fee on the memorandum of appeal u/s 52 has been paid by the parties. In that view of the matter, the contention of the Revenue that the Court should read into and supply a similar proviso u/s 66(2) cannot be appreciated. In fact the inference can only be otherwise since the legislature did not touch Section 66(2) while amending Section 69 by supplying the proviso in the year 1991. By a process of interpretation, the Court cannot legislate, particularly in an area where the Legislature has consciously exercised its constitutional mandate. Thus a perusal of the provisions contained in sub-section (2) of Section 66 and those contained in Section 69, especially the proviso newly added thereunder will leave no room for any doubt or ambiguity as far as the question of refund is concerned.

Refund u/s 66(2) and Section 69 is envisaged in totally different situations. Section 66 allows refund of court fee in cases where plaint or memorandum of appeal is rejected on the ground of delay in re-presentation, defect or delay in payment of balance court fee etc. Subsection (2) of Section 66 which is relevant for our purpose contemplates a situation where an appeal is rejected on the ground that it was not presented within the statutory period of limitation. What sub-section (2) postulates is that the appellant shall be entitled to get refund of one half of the fee paid if his appeal has not been considered on its merit and is dismissed consequent only on the dismissal of the application for condonation of delay, hi other words, the appellant would be entitled to get refund of one half of the fee paid by him for the reason that the Court has not considered the merit of the appeal at all. Thus it is clear that sub-section (2) of Section 66 envisages rejection of the appeal at the preadmission stage itself.

However u/s 69 what is under contemplation is the post admission stage scenario. If an appeal has been admitted by the court considering its merit, and subsequently if the appeal is compromised before payment of the balance two-third court fee, the appellant will not be entitled to get refund of one-third court fee that is paid by him on the memorandum of appeal.

In our view, the proviso u/s 69 cannot be imported to Section 66. As observed by us earlier, subsection (2) of Section 66 does not admit of any ambiguity. If the appeal is rejected on the ground of delay without being admitted to the file, the appellant will be entitled to get refund of one-half of the fee paid on the memorandum of appeal. The Legislature in its wisdom has not chosen to amend Section 66, while Section 69 was amended in 1991 by inserting a proviso, providing that no refund shall be ordered if only one-third of the fee had been paid as provided u/s 52. Therefore going by the provisions contained in sub-section (2) of Section 66, the appellant will be entitled to get refund of one-half of the court fee paid on the memorandum of appeal, be it one third, if the same is rejected on the ground that it has been filed beyond the statutory period of limitation.

In that view of the matter, we hold that the decision in Zakariyas v. Johny (1999 (3) KLT 419) has not laid down the law correctly. Therefore the above decision is overruled. The question posed for consideration is answered accordingly in the affirmative. Interlocutory Application is allowed as prayed for.