PATHU V P Vs. THARAMAKKANDY AYISHU

JUDGEMENT

(1.) The appeal is being disposed of by a detailed judgment allowing both the appeal as well as the memorandum of cross objections by passing an order of remand. The question which now arises is as to whether the court fee which has been remitted on the appeal memorandum and on the memorandum of cross objections can be ordered to be refunded to the appellant / the cross objectors. S.67 of the Kerala Court Fees and Suits Valuation Act, 1959 is the relevant statutory provision. S.67 is extracted below:

(2.) The question which arises next for consideration is whether the court fee paid on the memorandum of cross objections can be refunded to the cross objectors. Mr. D. Anilkumar, Senior Government Pleader would cite the judgment of the Supreme Court in Hari Shankar Rastogi v. Sham Manohar and Others, 2005 KHC 575 : JT 2005 (3) SC 431 : 2005 (2) KLT 342 : 2005 (3) SCC 761 and submit that a cross objection is like an appeal and has all trappings of an appeal. According to him, even where the appeal is withdrawn or dismissed, the cross objection can still be heard and determined. The above proposition advanced by the learned Senior Government Pleader on the strength of the judgment of the Supreme Court in Hari Shankar Rastogi's case (supra) can never be any doubt. But the above judgment does not specifically answer the question whether there is justification for ordering refund of court fee paid on the memorandum of cross objections to the cross objectors in the event of an order of remand being passed. Both the sub-sections in S.67 deals specifically with orders of remand passed in appeals or second appeals and do not deal with orders of remand passed pursuant to a memorandum of cross objections.

(3.) A Division Bench of this Court in Balan Nair v. Kesavan Nambissan, 1973 KHC 64 : 1973 KLT 280 : 1973 KLJ 97 : 1973 KLR 138 : AIR 1973 Ker. 133 had occasion to consider the implications of S.67(1) though in a different context. Their Lordships observed at paragraph 6 of the judgment after quoting S.67(1) of the Kerala Court Fees and Suits Valuation Act, 1959 as follows: