THANKAMANY Vs. ASST. EXECUTIVE ENGINEER

JUDGEMENT

(1.) Both these matters have been referred to mediation and the mediation agreements signed in between Thankamany and Natarajan/the appellants and the Assistant Executive Engineer KSEB, Thoppumpady representing the respondents/defendants, have been filed separately in both these appeals.

(2.) As per clause No.5 of the compromise, it has been averred that 'both the parties have agreed to request this Honourable Court to modify the decree of the Sub Court, Kochi to set side the realisation of court fee from the plaintiff'. It is submitted by the learned counsel for the appellants/plaintiffs 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 as ordered in CMCP.Nos.1 and 92 of 2008. It is argued by the learned counsel for the appellants 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. In this connection, the learned counsel for the appellants placed decision rendered by a Division Bench of this Court reported in [2015(1) KHC 361 : 2015 (1) KLT 344 : 2015 (1) KLJ 447 : ILR 2015 (1) Ker.1023], Kochupailo v. Reena and Ors., to contend 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. In fact, this legal position is not in dispute. Accordingly, the appellant in the above case was exempted from paying court fee in the appeal in view of the compromise. However, the request as per the present compromise is to avoid payment of realisation of court fee ordered by the trial court after disposal of the suits on merits after adjudication. In this connection, the learned counsel placed a decision of this Court reported in [2020 (3) KHC 294], Santha and Ors. v. Kerala State Electricity Board, TVM and Ors., where this Court considered claim of damages on account of death due to electrocution and while allowing the First Appeal in the last paragraph it was held as under:

(3.) On perusal of the judgment in Santha and Ors. v. Kerala State Electricity Board, TVM and Ors.' case (supra), when the appeal was disposed of, payment of court fee at the appellate stage was waived. In the said decision also, no waiver of court fee was allowed in so far as the court fee to be payable before the trial court. In this matter, both suits and the appeals were proceeded allowing the plaintiffs/appellants as indigent persons. After disposal of the suits on merits by a common judgment, the trial court ordered for realisation of court fee.