ZAKARIYAS Vs. JOHNY

JUDGEMENT

(1.) Though we dictated an order on 8.9.1999 ordering refund of one half of the court fee in terms of S.66(2) of the Kerala Court Fees and Suits Valuation Act, before signing the same we felt a doubt about the order for refund in the circumstances of the case. The matter was therefore, posted to this day for being spoken to. Counsel were again heard.

(2.) This appeal was initially presented by the appellant before the District Court. The appeal was valued at Rs. 83,268 and a court fee of Rs. 4548 was paid. Second proviso to S.52 of the Kerala Court Fees and Suits Valuation Act was not resorted to by the appellant. The District Court returned the appeal on 24.8.1998 on the ground that the appeal lay not to that Court but to the High Court. The appeal was thereupon re - presented in this Court. Valuation was corrected as Rs.1,24,758 since the appellant was bound to value the interest that accrued from the date of suit till the date of the decree of the Trial Court unless of course he was prepared to relinquish that. Thus the court fee payable became Rs.7657. The appeal showed that he had paid Rs. 4548 already and the balance to be paid was Rs. 3109. The appellant thus was taking advantage of the second proviso to S.52 of the Kerala Court Fees and Suits Valuation Act and was pointing out that he had paid more than one third of the court fee that was due on the appeal.

(3.) The petition for condoning the delay in filing the appeal in this Court was withdrawn on the ground that the dispute between the parties has been settled out of Court, and hence it was not necessary to pursue that petition. We have dismissed the petition for condoning the delay on that ground. Therefore, the appeal has to be dismissed on the ground that the delay in filing the appeal was not being condoned. This attracts S.66(2) of the Kerala Court Fees and Suits Valuation Act and the appellant would be entitled to refund of one half of the court fee on the Memorandum of Appeal. The Court fee payable on the Memorandum of Appeal, as noted, is Rs. 7657. Half of that would be Rs.3828.50. Appellant has paid Rs.4548. He will obviously be entitled to a refund of Rs. 719.50 going by S.66(2) of the Kerala Court Fees and Suits Valuation Act.