Refund Of Fees Before Trial Court Cannot Be Ordered By Appellate Court On Settlement Of Appeal: Kerala High Court
The Kerala High Court has held that it is not legally permissible for an appellate court to waive payment of court fee before the trial court on account of settlement of the appeal.
The Court was considering Appeals in matters which were transferred to mediation and were settled with agreements being signed.
The single bench of Justice A. Badharudeen observed, “…..When suits and appeals filed by indigent person/s are compromised, realisation of court fee shall be avoided since the same is otherwise refundable taking into account of the compromise. But there is no provision either in the KCF and SV Act or else where, permitting refund of court fee paid before the trial court by the plaintiff or the defendant as the case may be, and also to waive realistion of court fee payable before the trial court while suing as indigent persons after disposal of the case on merits after adjudication by the intervention of the appellate court. In view of the above, the request made as clause No.5 in the compromise cannot be accepted….”
The Appellant was represented by Advocate R. Sudish while the Respondent was Senior Counsel P.A. Ahamed.
Facts of the Case
As per Clause No.5 of the compromise, it was averred that both the parties have agreed to request the Appellate Court to modify the decree of the Sub Court, Kochi to set side the realization of court fee from the plaintiff. Counsel for the Appellant submitted that since the Appellants were permitted to institute the suits before the trial court as indigent persons, they were allowed to file both these appeals also as indigent. It was submitted that Clause No.5 has been incorporated in the compromise to avoid or to waive realisation of court fee as ordered in the trial court verdicts, by the trial court, since the suits were proceeded by the appellants as indigent persons before the trial court. He contended that court fee could not be recovered from persons, who were permitted to institute suits as indigent persons, if suits were settled out of court.
Reasoning By Court
The Court at the outset noted that the question before it to settle was as to whether it is legally permissible for an appellate court to waive payment of court fee before the trial court on account of settlement of the appeal/appeals?
It answered it in negative reasoning that no provision either in the KCF and SV Act or else where, permits it.
“Therefore, by accepting all other clauses in the mediation agreement except clause No.5 in both the cases, the decree and judgment both in the appellate court and the trial court shall stand set aside and both the appeals stand allowed in terms of the compromise.”, the court observed.
The Appeal was accordingly disposed of.
Cause Title: Thankamany vs. Assistant Executive Engineer, KSEB
Appearances:
Petitioner– Advocate R. Sudish, Advocate M. Manju
Respondent– Senior Counsel P.A. Ahamed, Senior Counsel Pulikool Abubacker
