JAMAL S O PALLIPARAMBIL ALIKUNHU Vs. MOHAMMEDKUTTY

JUDGEMENT

(1.) Defendant is the appellant. Appeal has been preferred against the decree for money. Matter was posted before us for curing defect. Registry noted that the balance court fee of Rs. 10,386/- has not been paid. Suit valuation is Rs. 2,30,400/- Court fee payable is Rs. 15,580/-. Counsel appearing for the appellant submitted that he is not interested in prosecuting the matter and that the appeal may be rejected for non payment of court fee. Question that arises for consideration is whether in such a circumstance the appellant is entitled to get refund of the entire court fee.

(2.) The counsel for the appellant brought to our knowledge a Single Bench decision of this Court in South India Wire Ropes Ltd. v. State of Kerala, 2003 (2) KLT 668 . In that case revision petition was filed against the order in R.A. No. 44 of 2001 in O.S. 514 of 2000 of II Addl. Sub Court, Ernakulam. Plaintiff preferred an application for return of 1/10th court fee. Balance court fee was not paid. Court rejected the plaint for non payment of balance court fee under O.7 R.11 of the Code of Civil Procedure. Question that arose for consideration was whether plaintiff in such a situation is entitled to get refund of the 1/10th of the court fee paid. Learned Single Judge held that under S.66 of the Act plaintiff is entitled to get the court fee paid. Therefore ordered refund of 1/10th of the court fee. Question that has come up for consideration in this case is since the party does not propose to prosecute the appeal further due to the reason that he is not in a position to pay balance court fee he is entitled to get refund of the court fee paid. S.66 of the Court Fees Act deals with refund in cases of delay in presentation of plaint etc. Said provision reads as follows: